On September 28, 2013, the Commission presented a proposed rule change to the Texas Supreme Court Advisory Committee. The Commission’s Self-Represented Litigants Rules Subcommittee had received numerous reports from legal aid attorneys, judges, clerks, court personnel, and law librarians about continued struggles with Texas Rule of Civil Procedure 145 (“TRCP145”) affidavits of indigency. The proposed revision to TRCP 145 was intended to provide clarity and ensure that all low-income Texans are able to access the courts and are not barred by the Rule’s varying interpretation across counties, jurisdictions, and courts.
On May 16, 2016, the Texas Supreme Court announced a rewrite of the rules that govern affidavits of inability to pay costs: Texas Rules of Civil Procedure 145 and 502 and Texas Rules of Appellate Procedure 20. The amended rules were effective September 1, 2016.
In a comment on the May 16, 2016 order adopting the rewrite, the Court stated, in part:
Access to the civil justice system cannot be denied because a person cannot afford to pay court costs. The issue is not merely whether a person can pay costs, but whether the person can afford to pay costs. Experience indicates that almost all filers described in (e)(1)-(3), and most filers described in (e)(4), cannot in fact afford to pay costs. Because costs to access the system—filing fees, fees for issuance of process and notices, and fees for service and return—are kept relatively small, the expense involved in challenging a claim of inability to afford costs often exceeds the costs themselves. Thus, the rule does not allow the clerk or a party to challenge a litigant’s claim of inability to afford costs without sworn evidence that the claim is false. The filing of a Statement of Inability to Afford Payment of Court Costs—which may either be sworn to before a notary or made under penalty of perjury, as permitted by Civil Practice and Remedies Code § 132.001—is all that is needed to require the clerk to provide ordinary services without payment of fees and costs.
Rule 145(a) underscores the Court’s assertion above by stating the general rule: a party who files a Statement of Inability to Afford Payment of Court Costs cannot be required to pay costs, except by court order. The Rule defines “costs” to mean any fee charged by the court or an officer of the court that could be taxed in a bill of costs.
Rule 145(f) outlines the three situations a court may require a party to prove inability to pay costs; if after an evidentiary hearing the court finds the party can pay, it can order the party to pay costs:
Rule 145(f) outlines the three situations a court may require a party to prove inability to pay costs; if after an evidentiary hearing the court finds the party can pay, it can order the party to pay costs:
1) if there is sworn evidence that the Statement was materially false when made or is no longer true due to changed circumstances in a motion filed by the clerk or any party, or an attorney ad litem for a parent under Section 107.013, Family Code;
2) if the declarant requests a reporter’s record but cannot make arrangements to pay for it, the court reporter can move to have the declarant prove his inability to pay; or
3) if evidence comes before the court that the party can afford to pay, or when a professional needs to be appointed to the case.
The declarant must be given twenty-one-day notice of hearing and any order requiring a party to pay costs must contain detailed findings that the declarant can pay. The declarant can challenge the order by filing a motion within 10 days.
Additionally, a judgment cannot order a party to pay costs and if a judgment does so, it is void unless the court has issued an order finding that the party can pay or the party can pay the costs from a monetary recovery. TRCP 145(h).
The Court has also promulgated a form that parties must use unless they file a form that has the same information in it. (TCRP 145(b). Clerks cannot refuse to file a Statement unless it is not sworn. (TCRP 145(d)).
These amendments bring much needed clarity to Rules that were inconsistently administered and should help ensure that all Texans can receive access to the court.
