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

BAKER BOTTS 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

ATTORNEY FOR APPELLANT

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

 FILED IN 3rd 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 Eckchum1 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 of 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 indigent 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 January 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 entitlements, 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 February 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, 20154

—after the hearing. 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, 2015, 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 goodfaith effort to do so?” Id. at 686. 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 therefor.” 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 benefits 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.” Moreno 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 documents 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 afford 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 unemployed 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 complete 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 

Supreme 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 Hearing 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 and 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 and 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 

2003, 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 hearing 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, and 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 that 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, 2015—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., 

331 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

BAKER BOTTS L.L.P.

98 San Jacinto Blvd., Suite 1500

Austin, TX 78701

Telephone: (512) 322-2500

Facsimile: (512) 322-2501

ATTORNEY FOR APPELLANT

SUZANNA ECKCHUM

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 this 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. I 
6. 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. 

- A fiant ~ cic:A~ 

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 

Me1, ~ .sl\ v · w f~.f.-4,, Printed Name 

My commission Expires: t)/ ~ </ }o(l 

Active 18060973. I 2 
EXHIBIT A 
ill 111.~ I}qt:t.r:r~w.oi: . r.cyf,~i rr1 . ,

1 

, \ 1 tff w. Faast Street" · ,. ' . · ... . I \.. 0 ~ !I': ~ New Braunfels, TX 7813 1 

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. 

I l11II11l 11111!'! I! Ii! I !l • '11 •i llj1l1l11•'l"'··11' '"1111 lilll·' 

Suzanna [.ckchum 

PO Box 476 

'Nirr~berley TX 78676-0476 

7013 3020 0002 0978 9193 

1\r11'!!II!1l'llh! 11 \ 11 11llf111l11! Ill 1

!ilI1111 1

1111 11hlll1 IP I 

c)··L!7 ...... n,...,a E·ckchum ' .... a ' - . 

PO Bex 4"15 

VVirnber!ey TX 7867'6-04 76 

'!11 cto .o .. 90- . j.: ~ (., ~,'. 

US PQSTAGE · r. 

FIRST-CLASS ' Bi 

FROM 7'8130' ~ . FEl3 23 ~015 · ,' · g 

stamml .. , .·"' .ccrn 
EXHIBIT B 
HHSC - MIDLAND 

PO BOX 14900 

MIDLAND TX 79711-4900 

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 

F ac t swe h ave a b OU t vour case: 

Money coming into your home (income) 

Where the money 

Month Person who gets the money Type of money comes from 

March 2015 Suzanne Eckchum 

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 -

Ongoing 

Monthly amount 

before taxes 

(gross) 

$ 766.00 

Monthly Amount 

$ 194.00 

2221 
F ac t swe h ave a b OU t vour case: 

Money coming into your home (income) 

Where the money 

Month Person who gets the money Type of money comes from 

March 2015 Suzanne Eckchum Unearned Income RSDI 

Costs that lower your income (deductions) 

Month Type of cost Cost 

March 2015 Shelter $ 938.00 

Page 2 of 3 

Form TF0001 

August2014 

Monthly amount 

before taxes 

(gross) 

$ 766.00 

Deduction 

$ 632.50 

2222 
EXHIBIT C 
LIFTTO OPEN 

2014"- ShoWs the ' fut.al am.omit 

1993-261-00 

CU1263424-11A61263800 , 

1\Il10UilL ill DOX '±. 

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-nefi_ci a~,s ocia ec ri N-u er---+ ~. 

SUZANNE ECKCHUM ~ .. 1-- ~~ ~~~~~~~~ ....--~~ ~~~~~~~ ~---l,....----------------.-------------- ~ Box 3. Benefits Paid in 2014 Box 4. Benefits Repaid to SSA in 2014 ii: 

$9,!f'47.60 NONE ~ 

DESCRIPTION OF AMOUNT IN BOX 3 

Paid by check or direct deposit $9,572.10 

Medicare Part B premiums deducted 

from your benefits 

Total Additions 

Subtract 

Non-taxable payments 

Benefits for 2014 

$419.60 

$9,991.70 

$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 

"' 

n 

c: 

S1 1--~~~~~~~~~~~~~~~~~~~~~ 

Box 8. Claim Number (Use this number if you need to contact SSA.) t 

~ 

§ 

"'" "' rm A--1 99 ___ 1-20 ~~----~DO~~O-T~~ETU TR=n~~~~O~~~M= O-S ~O~rR~S~~....--~~~~~~ ~~--' "' 
EXHIBIT D 
~Your Te.ma Benefits ..r Health and Human Sesvica Commbsion 

M11dicaid ID Card M•mb..-Name: 

SUZANNA ECKCHUM 

' Mo<n1>or10 1n1d .101: 

._ I0<(8GUOJ 

610258 

RllalN: 610084 1WCNt DRTXPROO RxGRP: MEDICAID 

Olllo =<I sont: 

11123/12 

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