Lovall v. University of Houston (Tex.App.- Houston [1st Dist.] Mar. 27, 2009)(per
curiam)(attempted IFP appeal, indigency affidavit contested)
DISMISS APPEAL: Per Curiam
Before Justices Jennings, Keyes and Higley
01-06-00775-CV Lizzie J. Lovall v. The University of Houston, The College of Liberal Arts and Social
Sciences, The Board of Regents, John Antel and Jay Gogue
Appeal from 334th District Court of Harris County
Trial Court Judge: Hon Sharon McCally
Appellant, Lizzie Lovall, has neither established indigence, nor paid all the required fees. See
Tex. R. App. P. 5 (requiring payment of fees in civil cases unless indigent), 20.1 (listing
requirements for establishing indigence); see also Tex. Gov't Code Ann. §§ 51.207 (Vernon
2005), 51.208 (Vernon Supp. 2008); 51.941(a) (Vernon 2005), 101.041 (Vernon Supp. 2008)
(listing fees in court of appeals); Fees Civ. Cases B(1), (3) (listing fees in court of appeals).
The trial court sustained the district clerk's contest to her affidavit of indigence. See Tex. R.
App. P. 20.1(a)(2) (if appellant's affidavit of indigence is contested, trial court may sustain the
contest by written order). Appellant then filed in this Court her "First Amended Motion for
Review of Trial Court's Order Sustaining District Clerk's Contest to Affidavit of Inability." This
Court requested the trial court record relative to indigence. We then considered the record,
appellant's motion, and appellee's response brief. Lovall v. The University of Houston, (Tex.
App.--Houston [1st Dist.] January 27, 2009, order).
In her motion, Lovall, in three issues, had contended that the trial court erred in not making
findings of fact and conclusions of law in support of its order sustaining the district clerk's
contest, concluding that Lovall had not "sufficiently proved her indigence," and "granting more
relief than that requested." We note first that the trial court was not required to enter findings of
fact and conclusions of law. Lovall had the burden of proof to establish the allegations in her
indigency affidavit. Tex. R. App. P. 20.1(g). However, as conceded in her motion, Lovall did
not present any evidence in support of her allegations. Rather she relied upon her affidavit
exclusively, which the district clerk challenged as insufficient to establish indigency.
Accordingly, fact findings would not be helpful to this Court and, thus, not appropriate.
Second, in its order sustaining the district clerk's contest, the trial court held that Lovall had
"not established that she is unable to pay the costs of appeal." Although Lovall claimed that
evidence of her food stamps, social security income, and Medicaid benefits "established
prima facie proof of indigence," her affidavit of indigence did not comply with Rule 20.1. See
Tex. R. App. P. 20.1(a)(1), (b). Importantly, for example, although Lovall stated in her affidavit
that she owns property "claimed as homestead," she provided the trial court with no
"complete information" about this real property. See Tex. R. App. P. 20.1(a), (b) (requiring
that affidavit "contain complete information about . . . real and personal property the party
owns"). Finally, although Lovall complained that the trial court erred in "granting more relief
than that requested," the district clerk challenged Lovall's claim of indigence by contesting her
affidavit, and the trial court entered an order sustaining the clerk's contest.
Accordingly, we affirmed the trial court's order sustaining the district clerk's contest to
appellant's affidavit of indigence, and we ordered appellant to pay the appellate filing fee
within 30 days of the date of the order on pain of dismissal of her appeal. Id.; see also Arroyo,
988 S.W.2d at 739 ("The court of appeals should also defer the payment of fees under Rule 5
until it determines whether payment is due."). Thirty days from the date of the order have
passed, but appellant has not paid the $125 filing fee.
Appellant has filed an "Amended Motion for Court to Issue its Opinion Giving Rise to Its
January 27, 2009 Order," "Amended Motion for Extension of Time to File Motion For
Rehearing," and "Amended Motion to Pay Fees Ordered on January 27, 2009." We deny
these and any other pending motions.
We dismiss the appeal for nonpayment of all required fees.
Panel consists of Justices Jennings, Keyes, and Higley.