Cronen v. Smith, 01-90-00757-CV

• Decision Date: 14 June 1991
• Docket Number: No. 01-90-00757-CV,01-90-00757-CV
• Citation: 812 S.W.2d 69
• Parties: Charles D. CRONEN, Relator, v. The Honorable Bradley SMITH, Visiting Judge of the 151st District Court of Harris County, Respondent. (1st Dist.)
• Court: Texas Court of Appeals

Page 69

812 S.W.2d 69

Charles D. CRONEN, Relator, v. The Honorable Bradley SMITH, Visiting Judge of the 151st District Court of Harris County, Respondent.

No. 01-90-00757-CV.

Court of Appeals of Texas Houston (1st Dist.).

June 14, 1991.

Charles Cronen, pro se.

Mike Driscoll, County Atty., Joan Denton, Asst. County Atty., Houston, for respondent.

Before SAM BASS, DUNN and MIRABAL, JJ.

OPINION

DUNN, Justice.

Relator, attempting to appeal an adverse judgment in his suit against the city of Pasadena for an allegedly illegal speed trap, seeks relief by way of mandamus from respondent's order sustaining the district clerk's contest to relator's affidavit of inability to pay costs on appeal. TEX.R.APP.P. 40(a)(3). We overrule relator's motion for leave to file.

We first note that the verification attached to relator's handwritten petition for writ of mandamus is signed only by a notary public and not by relator himself. Therefore, relator has failed to properly verify the truth of all factual allegations contained in the petition and to furnish properly certified or sworn copies of the exhibits attached to the motion. TEX.R.APP.P. 121(2)(F), (4). On this basis, motion for leave to file should be overruled. However, since relator may correct these technical deficiencies and refile the motion and petition, we will address the merits of his petition in the interest of judicial economy. ¹

Relator alleges that he met his burden of proof at the hearing on his pauper's oath and, therefore, respondent had a clear duty to grant his application for a free statement of facts. Consequently, relator claims respondent abused his discretion in denying relator a free statement of facts. The question before us is whether the record as a whole establishes that the trial judge abused his discretion in sustaining the contest. Keller v. Walker, 652 S.W.2d 542, 543 (Tex.App.--Dallas 1983, orig. proceeding).

Because a statement of facts from the hearing on the pauper's oath application was necessary to this Court's review, we ordered the official court reporter who reported the hearing to file the statement of facts from the hearing at no cost to relator. We have now reviewed the record of the hearing on relator's pauper's oath and find no abuse of discretion in the trial court's decision.

Relator had the burden to prove the allegations of his affidavit. TEX.R.APP.P. 40(a)(3)(D). When the contest is sustained and mandamus is sought to review that ruling, the question is whether an examination of the record as a whole establishes that the trial judge abused his discretion. Keller, 652 S.W.2d at 543. In ruling on the merits of the affidavit at the trial court level, the test for determining entitlement to proceed in forma pauperis is whether the preponderance of the evidence shows that the appellant would be unable to pay the costs, or a part thereof, or give security therefor, if he really wanted to and made a good faith effort to do so. Allred v. Lowry, 597 S.W.2d 353, 355 (Tex.1980); Pinchback v. Hockless, 139 Tex 536, 164 S.W.2d 19, 20 (1942); Keller, 652 S.W.2d at 543.

At the May 21, 1990 hearing, the trial court heard considerable evidence of relator's financial condition including the following: In January 1990, relator nearly amputated his finger while on the job and had been unable to work since that time; he was receiving worker's compensation benefits of $238 a week; he had received food stamps in the past but was no longer on welfare of any kind; while at his job prior to his injury he had earned $403.36; and at some point in time he had also received eight weeks of unemployment benefits at $54 a week. Relator's own evidence showed that, at the time of the hearing, his income could total approximately $989 per month from worker's compensation.

Relator also stated that he had expected his doctor to release him for light duty work that same day, but he had missed the appointment because of the hearing; he was to see the doctor and expected the release later that same week or the next; he had been working for the last fifteen years but not every day; and his income for 1989 was $5,728. Relator claimed that he also has problems looking for work and working regularly because he has to go to court all the time. Relator also testified that he can no longer afford to drive his car; he lives in a shack without utilities; and he has no refrigerator. He pays $55 per month to maintain his furniture in storage. At the time of the hearing, he had a savings account balance of $5.01. Relator testified that he had been prevented from working regularly because he has been doing "court work" on the many court cases that he filed.

Cross-examination and argument by counsel for the contestant focused on relator's immediate expectation of being released for work and his excuse that his court cases prevent him from obtaining and keeping employment. Thus, the contestant put into issue whether relator could have paid the costs of appeal or a part thereof, if he really wanted to and made a good faith effort to do so.

The trial court found that relator's unemployment was not involuntary. The court also found that relator's filing of numerous lawsuits against various governmental entities in Harris County was by his own choice and was, therefore, an inadequate excuse for his not working. The court sustained the contest to relator's affidavit.

Mandamus is an extraordinary remedy which will issue to compel a nondiscretionary act, Smith v. Rankin, 661 S.W.2d 152, 153 (Tex.App.--Houston [1st Dist.] 1983, orig. proceeding), or to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no adequate remedy by appeal. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985). A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Id. To show a clear abuse of discretion, the relator must show that, under the circumstances of the case, the facts and law permit the trial court to make but one decision. Id.; Rowe v. Moore, 756 S.W.2d 117, 119 (Tex.App.--Houston [1st Dist] 1988, orig. proceeding) (emphasis added). In Downer v. Aquamarine Operators, Inc., the supreme court stated,

"[t]he test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action. Rather, it is a question of whether the [trial] court acted without reference to any guiding rules and principles ... whether the act was arbitrary and unreasonable."

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

The dissent relies on Ranier v. Brown, 623 S.W.2d 682 (Tex.Civ.App.--Houston [1st Dist.] 1981, orig. proceeding), in concluding that the trial court abused its discretion. However, we believe Ranier can be distinguished and harmonized with this case. In Ranier, a husband and wife both sought to appeal an order terminating their parental rights. Both husband and wife filed affidavits of indigency. Timely contests were also filed. The trial court held a hearing and sustained the contest to each affidavit. However, because the trial court failed to timely enter its orders sustaining the contests to the affidavits, this Court held that all allegations in the affidavits were to be taken as true. TEX.R.APP.P. 356 (Vernon 1967), now TEX.R.APP.P. 40(a)(3). The Court then reviewed the evidence from the hearing to determine whether the trial court had abused its discretion in sustaining the contests. ²

The Court first concluded that both the husband and wife were undeniably impoverished. Ranier, 623 S.W.2d at 686. Neither had any money or property; both had lost their jobs; they lived with Ronald Ranier's mother and used her car for transportation; there was no reasonable expectation that either could borrow money for appellate costs.

Finding the evidence insufficient to show that Alice Ranier could have paid the cost of the appeal, or any part thereof, the Court concluded that the trial judge abused his discretion in sustaining the contest to Alice Ranier's affidavit. However, the Court also noted that Ronald Ranier had obtained a job just two weeks prior to the hearing and had been working at that time for approximately two weeks. His expected income from that job was less than $800 per month. He had not, at the time of the hearing, received any wages. Nor had he ever held any job for longer than one month. Nevertheless, because the evidence showed that he could save the $500 necessary for his cost bond, the Court concluded that the trial judge did not abuse his discretion in sustaining the contest to Ronald Ranier's affidavit. Ranier, 623 S.W.2d at 686.

In the instant case, all statutory deadlines were timely met, and no presumption was operating in favor of the allegations in the affidavit. The record in the instant case showed that relator, like Mr. Ranier, had an expected income of approximately $989 per month at the time of the hearing. There was also conflicting evidence regarding his willingness to get a job and thereby make a good faith effort to pay the costs of the appeal or some part thereof. Based upon the conflicting evidence presented in the record as a whole, we cannot say that the trial court's decision to sustain the contest to relator's affidavit was made arbitrarily and without regard for any guiding rule or principle.

Accordingly, relator's motion for leave to file a petition for writ of mandamus is overruled.

MIRABAL, Justice, dissenting.

I respectfully dissent.

First, I disagree with the majority's conclusion that the verification attached to relator's petition for writ of mandamus is defective. On the page containing the verification appears both relator's signature and the notary public's signature. The fact that the relator signed above the verification statement, instead of below it, is not a fatal defect, in my...