### NO. 03

- 15

- 00107

- CV

__________________________________________________________________ IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS

__________________________________________________________________ SUZANNA ECKCHUM Appellant,

v. THE STATE OF TEXAS FOR THE PROTECTION OF HAL KETCHUM Appellee.

__________________________________________________________________ ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2 OF COMAL COUNTY CAUSE NO. C2014

- 1690C

__________________________________________________________________ APPELLANT’S MOTION TO CHALLENGE TRIAL COURT ORDER SUSTAINING CONTEST TO APPELLANT’S AFFIDAVIT OF INDIGENCY

__________________________________________________________________ Mysha Lubke B AKER 

### B OTTS 

### L.L.P. State Bar No. 24083423 98 San Jacinto Blvd., Suite 1500 Austin, TX 78701 (512) 322

- 2500 (512) 322

- 2501 (fax) mysha.lubke@bakerbotts.com
A TTORNEY FOR 

### A PPELLANT

Active 18038052.1 

### 1 ACCEPTED 03-15-00107-CV 4404588 THIRD COURT OF APPEALS

AUSTIN, TEXAS 3/6/2015 2:57:19 PM JEFFREY D. KYLE

CLERK

### TO THE HONORABLE THIRD COURT OF APPEALS: Appellant Suzanna Eckchum 1 

### respectfully requests that this Court deny Court Reporter Dana Dance’s Contest to the Affidavit of Indigency Filed by Suzanna Eckchum pursuant to Rule 20.1(j) of the Texas Rules of Appellate Procedure. The trial court erred in sustaining the court reporter’s contest to Appellant’s affidavit of indigence for two reasons. First, Appellant’s completed and verified affidavit shows that she is unemployed, disabled, and receives public benefits, which is all sufficient to prove indigence. Second, Appellant had no notice of the hearing on the contest and thus had no opportunity to offer testimony about the contents of her affidavit as proof o f indigence. For these reasons, Appellant respectfully requests that this Court grant Appellant’s motion to challenge, deny the court reporter’s contest, and order court reporter Dana Dance to prepare the reporter’s record for appeal at no cost to the ind igent appellant. Appellant has requested that the trial court reconsider its order sustaining the
contest.

1 

### Respondent respectfully notes that the style of the case in the trial court order listed her name incorrectly, and the name should be listed as Suzanna Eckchum.

Active 18038052.1 

### 2

### BACKGROUND FACTS AND PROCEDURE After a hearing on January 16, 2015, the trial court entered a Stalking Protective Order against Appellant on Janu ary 22, 2015. I CR 18

- 21. Proceeding
pro se 2 

### , Appellant timely filed her first Notice of Appeal on February 12, 2015. 3


### Id. at 24. On that same date, Appellant filed an “Affidavit of Indigency,” in which she swore that she receives government entitlemen ts, has been unemployed since 2010, has no property of any value, and cannot pay costs. Id. at 22

- 23. This is the affidavit that Court Reporter Dana Dance timely contested on February 23, 2015. The trial court set and held a hearing on the contest on Fe bruary 25, 2015 at 1:30 p.m. C.R. Supp. I. Notice for this hearing was sent by counsel for Court Reporter Dana Dance by certified mail, postmarked February 23, 2015. Id. Delivery of the notice was not attempted until February 25, 2015 4



### — after the hearin g. Ex. A.

2 

### Appellant had trial counsel, but represented herself after trial and before engaging appellate counsel on February 26, 2015 after qualifying for pro bono appellate representation, without contingent fee, by a volunteer attorney through the Third Court of Appeals Pro Bono Program. Counsel has not agreed to pay or advance any costs.

3 

### Appellant filed multiple documents entitled “Notice of Appeal,” but each appears to be different. The Notice of Appeal filed on February 17, 2015 also included a request for a court transcript. I CR 25. And the Notice of Appeal filed on February 19, 2015 also included a request for a new trial. Id. at 26.

4 

### Appellant received the letter sent via First Class Mail as well as the notice of a Certified mailing on the evening of February 26, 2015. However, accepting that the U.S. postal service attempted to deliver at least the certified letter on February 25, 2 015, Appellant refers to that date as the date of receipt.

Active 18038052.1 

### 3

### ARGUMENT AND AUTHORITIES The trial court abused its discretion in granting the contest as the evidence before the court proved Appellant’s indigence. The trial court also failed to give Appellant due process in entering an order sustaining Court Reporter Dana Dance’s Contest to the Affidavit of Indigency filed by Suzanna Eckchum without notice of the hearing and without permitting Appellant the opportunity to be heard.

I. The Trial Court Record As A Whole Shows Appellant Is Indigent and Unable to Pay Costs Even without Appellant’s appearance at the hearing on the contest, evidence of Appellant’s indigence was properly before the trial court under Rule 20.1. “The purpose of Rule 20.1 is to permit parties to proceed without paying filing fees if they are unable to do so, and we have long interpreted the Rules of Appellate Procedure liberally in favor of preserving appellate rights.” Higgins v. Randall County Sheriff's Office , 257 S.W.3d 684, 688 (Tex. 2008) “The test for determining indigence is straightforward: Does the record as a whole show by a preponderance of the evidence that the applicant 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?” Id. at 6 86. Moreover, “[t]he fact that any individual is dependent upon the charity of the public afforded through the various welfare programs is, by itself, prima facie evidence that the person is financially unable to

Active 18038052.1 

### 4

### pay the court costs or give security there for.” Griffin Indus., Inc. v. Honorable Thirteenth Court of Appeals , 934 S.W.2d 349, 351 (Tex. 1996) (quoting Goffney v. Lowry , 554 S.W.2d 157, 159

- 60 (Tex. 1977). 5


### Yet the court reporter did not contest the accuracy or contents of the affidavit showing prima facie evidence of Appellant’s indigence. The court reporter did not contest the indigent Appellant’s dependence on public welfare programs such as SNAP food ben efits listed in her affidavit or that her expenses exceeded income sourced solely from government benefits. C.R. Supp. I. She only contested the completeness of Appellant’s affidavit specifically with regards to her income, personal property, and cash. See id. But an indigent appellant is not required to attach any documents to the affidavit or address every factor in Rule 20.1(b) because “[s]atisfaction of the indigence rules should be liberally construed in favor of the right to appellate review.” Mo reno v. Perez , 363 S.W.3d 725, 743 (Tex. App.

— Houston [1st Dist.] 2011, no pet.); see also In re C.H.C. , 331 S.W.3d 426, 430 (Tex. 2011) (taking as true the allegations in an affidavit of indigence although the indigent appellant did not attach any documen ts to her affidavit or address every factor in Rule 20.1(b), but did swear that she had a negative cash flow and no investments or cash to help pay for a record).

5 

### The Texas Supreme Court has declined to rule on whether this standard is applicable in appellate courts under Tex. R. App. P. 20.1 as it is in trial courts under Tex. R. Civ. P. 145. In re C.H.C

. , 331 S.W.3d 426, 430 n.7 (Tex. 2011).

Active 18038052.1 

### 5

### Moreover, Appellant’s affidavit was complete and indicated that she would not be able to affo rd the costs of appeal. As to personal property and cash, Appellant left blank the lines for financial assets, other property, and real estate because she has none of these items. Evidence before the trial court showed that Appellant rents an RV situated on a local ranch. She owns no property, so it follows that she would have nothing to report for real estate and the like, and those lines would be blank. Similarly, as to income, Appellant left blank the boxes that did not apply to her. She has been un employed since 2010, so it follows that she would not have anything to provide in the spaces for “wages,” “job title,” “employer,” “2nd job,” and the like. She provided the amount of income she receives from government benefits, and her affidavit was comp lete and complied with Rule 20.1. To suggest otherwise is to hold that an indigent Appellant must pay costs of appeal if she fails to mark each available space with a “0” or strikethrough. Such an elevation of form over substance is something the Texas
S upreme Court has admonished is particularly inappropriate when assessing indigence. Higgins , 257 S.W.3d at 688

– 89. Thus, this Court should deny the court reporter’s contest because the trial court abused its discretion in sustaining the
contest.

Active 18038052.1 

### 6

### II. The Heari ng on Contest was Held with No Notice to Appellant Appellant had no notice of any hearing on the court reporter’s contest to her affidavit of indigence. After a contest to an affidavit is filed, “the trial court must set a hearing and notify the parties a nd the appropriate court reporter of the setting.” Tex. R. App. 20.1(i)(1) (emphasis added); Kastner v. Texas Bd. of Law
Examiners , 03

- 10

- 00355

- CV, 2011 WL 3659146, at *1 (Tex. App.

— Austin Aug. 18, 2011, no pet.) (“[T]he trial court must provide notice an d set a hearing to determine whether the party is indigent.”). While it is true that a rebuttable presumption exists that if notice is properly addressed and mailed, that it was received by the addressee, In re M.A.H. , 98 S.W.3d 745, 748 (Tex. App.

— Waco
2 003, no pet.), Appellant did not receive notice of this hearing on the contest until after the contest occurred.
The notices sent regarding the contest prove that they were not sent in time to provide the indigent Appellant with actual notice of the hearin g and rebut any presumption otherwise. Appellant received two mailings from counsel for Dana Dance both containing identical correspondence: a cover letter dated February 20, 2015 enclosing (1) the contest, (2) a motion to inspect Appellant’s home and tax returns going back eight years, and (3) a motion to set with notice of the setting. C.R. Supp. I; Ex. A. The Notice of Setting was signed by the Civil District Court Coordinator on February 23, 2015 setting a hearing for two days

Active 18038052.1 

### 7

### later on February 25, 2015. Id. Although the cover letter attaching the contest, motions, and notice was dated February 20, 2015, it contains the date and time of the hearing

— a setting that was not obtained until February 23, 2015. Thus, the cover letter, contest, motions, a nd notice could not have been sent at any time before February 23, 2015. This is so despite counsel for Dana Dance’s certifications on each motion that the motions were served on Appellant on February 20, 2015. That cannot be so especially considering th at the postmarked date on each envelope received by Appellant was not stamped until the following Monday, February 23, 2015. Ex. A. Further, the envelope of the certified mailing shows that the postal service did not attempt delivery until February 25, 20 15

— the day that the hearing was set. Id. Thus, Appellant had no notice of a hearing on the
contest.
It is well established that procedural due process requires notice and a hearing. City of Houston v. Fore , 412 S.W.2d 35, 37 (Tex. 1967). Yet, the lack of notice of a hearing as to this contest in preparation for an appeal has resulted in the possibility of excluding Appellant from the courts, when “[c]ourts should be open to all, including those who cannot afford the costs of admission.” In re C.H.C. , 3 31 S.W.3d at 429. For these reasons, the Court should deny the contest to the affidavit of indigence and order Court Reporter Dana Dance to prepare the reporter’s record. Appellant has provided additional evidence to support her

Active 18038052.1 

### 8

### “Affidavit of Indigency” which she was not permitted to provide to the trial court in the attached affidavit and exhibits.

CONCLUSION For the above reasons, Appellant respectfully requests to be allowed to proceed with her appeal without payment of costs, including requiring that the court reporter prepare the appellate record without payment.

Respectfully submitted, By: _/s/ Mysha Lubke Mysha Lubke State Bar No. 24083423 mysha.lubke@bakerbotts.com B AKER 

### B OTTS 

### L.L.P. 98 San Jacinto Blvd., Suite 1500 Austin, TX 78701 Telephone : (512) 322

- 2500 Facsimile: (512) 322

- 2501 A TTORNEY FOR 

### A PPELLANT 

### S UZANNA 

### E CKCHUM

Active 18038052.1 

### 9

### CERTIFICATE OF CONFERENCE I hereby certify that counsel for Appellant Suzanna Eckchum conferred with Josh Presley, Counsel for the State of Texas for the Protection of Hal Ketchum on March 5, 2015 and determined that the State of Texas opposes this motion at this time.
/ s / Mysha Lubke Mysha Lubke

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been served by fax on th is 5th day of March, 2015: Counsel for the State of Texas for the Protection of Hal Ketchum: The Honorable Jennifer A. Tharp Comal County Criminal District Attorney 150 North Seguin, Suite 370 New Braunfels, Texas 78130 fax: 830

- 608

- 2008 Counsel for Court Reporter Dana Dance: James S. Bettersworth The Bettersworth Law Firm 110 W. Faust Street New Braunfels, Texas 78130 fax: 830

- 626

- 1414 / s / Mysha Lubke Mysha Lubke

Active 18038052.1 

### 10

### NO. 03-15-00107-CV

IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS

SUZANNA ECKCHUM

v . 

### Appellant,

THE STATE OF TEXAS FOR THE PROTECTION OF HAL KETCHUM Appellee.

ON APPEAL FROM THE COUNTY COURT AT LA WNO. 2 OF COMAL COUNTY

ST A TE OF TEXAS
COUNTY OF TRAVIS 

### CAUSE NO. C2014-1690C

§ 

### § §
1. My name is Suzanna Eckchum, and I am the Appellant in this case. I am over 18 years of age, of sound mind, and capable of making this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct.
2. I received first-class mail addressed from the Bettersworth Law Firm on February 26, 2015. On that same date, I received a notice of a certified mailing being held at the post office for pick-up. Exhibit A to this affidavit is a true and correct copy of the envelopes I received on that date.
3. My only source of income is government assistance. I receive Social Security benefits due to a disability. I also receive SNAP benefits to cover the costs of food monthly. Exhibit B is documentation from the Texas Health and Human Services Commission regarding my Medicare, SNAP Food Benefits, and Social Security benefits. Exhibit C is my 2014 Form SSA-1099 Social Security Benefit Statement.
4. I receive these government benefits via a debit card provided by the government which also allows me to charge expenses on the same card.
5. Because my income is provided on a debit card not tied to a bank account, I do not use any bank accounts. I keep a bank account open, but have no funds on deposit.

Active 18060973. I6. In addition to government assistance for income, I rely on government assistance for healthcare expenses. I receive both Medicare and Medicaid. Exhibit D to this affidavit is a true and correct copy of my Medicaid card.
7. I am receiving pro bono legal assistance with my appeal and my appellate attorney has not agreed to advance costs of appeal. There is no contingent fee.
8. I am unemployed, but have pursued work as a photojournalist for decades. I am also a radio host at a non-profit radio station which is an unpaid position. I am a singer-songwriter, but due to my disability-multiple sclerosis-I have not been able to earn any money from my music since before 2010.
9. I own a 1993 Honda Accord LX that I purchased in 2008 for $1,5 00. It is in poor condition, and I cannot afford to repair it. Because it is my only source of transportation to doctors appointments and in seeking employment, I cannot sell it. There is very limited and umeliable public transportation in Wimberley, Texas that cannot transport me to my doctor's appointments in Northwest Austin, Texas.
I 0. I own no other property of any value and live in a rented motor home.
11. I owe tens of thousands of dollars of debf and cannot obtain a loan for court costs.
12. Because I am unemployed, rely on government assistance, am indebted, poor, and struggling, I cannot afford the costs of appeal, including the cost of a court reporter's record.
I verify that the statements made in this affidavit are true and correct.

# cic:A~**~** - A 

### fiant
BEFORE me, Melissa V. De Pagter, Notary Public, on this day personally appeared Suzanna Eckchum, known to me through personal knowledge to be the person whose name is subscribed to the foregoing instrument

. SUBSCRIBED AND SWORN TO BEFORE ME, on March 6, 2015.

NOTARY PUBLIC, STATE OF TEXAS



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Date: 02/11/2015
Case Number:



# Notice about your case: Medicare Savin 

# M\TEXAS k...,.. .• · Health and Human -..,( Services Commi:>sion

Need help? Form TF0001 August2014

Call 2-1-1 or 1-877-541-7905 If you have a hearing or speech disability, call 7-1-1 or any relay service. All numbers are free to call.

SUZANNE ECKCHUM PO BOX476 WIMBERLEY TX 78676-0476



### Who is in a Medicare Savings Program
Name EOG Number and Benefit Suzanne Eckchum C-QMB



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### SNAP F.ood Benefits EOG number: 604200638 Unearned Income RSDI



### Who gets SNAP Food Benefits
Name Date Suzanne Eckchum 03/01 /2015

- 02/29/2016

Page 1 of 3 Date 12/01 /2014

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before taxes (gross) 

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### $ 194.00

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Month Type of cost Cost March 2015 Shelter 

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### FORM SSA-1099 - SOCIAL SECURITY BENEFIT STATEMENT 

# 201 4 • PART OF YOUR SOCIAL SECURITY BENEFITS SHOWN IN BOX 5 MAY BE TAXABLE INCOME. •SEE THE REVERSE FOR MORE INFORMATION. e_**B-o .N** **~~~~~~~~~~ ~~~** **~~ ~~~~~** **~~----.- ox** **e-ne fi_ci** **a~ ,s** **oc ia** **ec ri** **N-u er---+** **~.** SUZANNE ECKCHUM**~** 

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$944.10 $9,047.60 DESCRIPTION OF AMOUNT IN BOX 4 NONE

Box 6. Voluntary Federal Income Tax Withheld NONE

Box 7. Address

SUZANNE ECKCHUM POBOX476 WIMBERLEY TX 78676-0476 

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