Affirmed and Opinion filed October 19, 2017.

In The 

Fourteenth Court of Appeals 

NO. 14-16-00824-CV

WILLIAM H. POFF AND JULIA A. POFF, Appellants 

V.

JUAN CARLOS GUZMAN AND CYPRESS FOUR PROPERTY 

VENTURES, LLC, Appellees 

On Appeal from the 506th Judicial District Court 

Waller County, Texas 

Trial Court Cause No. 16-04-23698 

O P I N I O N 

Appellants Julia and William Poff were residential tenants of the appellees. 

The Poffs sued the appellees for breach of contract, various torts, and statutory 
2

violations after the appellees initiated a forcible detainer action against the Poffs in 

a justice court.1 

Although the Poffs initially obtained a default judgment, the trial court 

granted a new trial and vacated the default judgment. Then, the trial court dismissed 

the Poffs’ suit because the Poffs, proceeding in forma pauperis, filed a fraudulent 

affidavit of indigence and because the suit was barred by res judicata. 

We affirm. 

I. NEW TRIAL

In their first two issues, the Poffs challenge the trial court’s granting a new 

trial and vacating the default judgment.2 Generally, however, an order granting a 

new trial within the trial court’s plenary power is not subject to review either by 

direct appeal from that order or from a final judgment rendered after further 

proceedings in the trial court. See Cummins v. Paisan Constr. Co., 682 S.W.2d 235, 

236 (Tex. 1984) (per curiam) (holding that the trial court’s order setting aside a 

default judgment and granting a new trial was not reviewable on appeal); Rebector 

v. Angleton Danbury Hosp. Dist., No. 14-08-00811-CV, 2010 WL 2681721, at *2 

(Tex. App.—Houston [14th Dist.] July 8, 2010, pet. denied) (mem. op.) (“[T]he trial 

court’s act of granting a new trial and setting aside the default judgment is not 

reviewable on appeal.” (quotation omitted)); see also In re Columbia Med. Ctr. of 

 

1 We have issued an opinion today in the Poffs’ appeal from a judgment of eviction in that 

case, Cause No. 14-16-00603-CV.

2 The Poffs also raised these issues in a petition for writ of mandamus, which this court 

denied. See In re Poff, No. 14-16-00773-CV, 2016 WL 6134460, at *1 (Tex. App.—Houston [14th 

Dist.] Oct. 20, 2016, orig. proceeding) (mem. op.) (per curiam) (“Mandamus review is not 

available for an order that sets aside a default judgment when there has been no jury trial.” 

(quotation omitted)).
3

Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 208–09 (Tex. 2009) (orig. 

proceeding). 

The Poffs do not contend that any recognized exception applies. See Wilkins 

v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005) (citing Johnson v. 

Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985) (noting two recognized 

exceptions). 

Thus, the Poffs’ first two issues are overruled. 

II. MOTION TO DISMISS

In their third and fourth issues, the Poffs challenge each of the bases upon 

which the trial court dismissed the suit: respectively, the fraudulent affidavit of 

indigence and res judicata. We address only the third issue concerning the affidavit 

of indigence because it is dispositive of this appeal. See Brager v. James, No. 02-

13-00130-CV, 2014 WL 584795, at *3 (Tex. App.—Fort Worth Feb. 13, 2014, no 

pet.) (mem. op.) (dispositive motion to dismiss will be affirmed if any theory 

advanced in the motion supports dismissal); see also Clark v. Clark, No. 01-13-

00577-CV, 2014 WL 6853470, at *1 (Tex. App.—Houston [1st Dist.] Dec. 4, 2014, 

no pet.) (mem. op.). 

A. Background 

About a month after the Poffs filed an affidavit of indigence in this case, the 

Poffs filed a bankruptcy petition under Chapter 13 of the Bankruptcy Code. For the 

bankruptcy case, the Poffs completed several forms detailing their income and 

expenses. The bankruptcy court dismissed the Poffs’ case, noting that they were 

“serial filers” who had used the Bankruptcy Code “as both a sword and a shield” to 

benefit from the automatic stay while not “fulfilling their fundamental duties under 

the Bankruptcy Code.” 
4

After the bankruptcy dismissal, appellees filed a motion to dismiss “based 

upon fraud perpetuated upon the court.” Appellees attached the Poffs’ bankruptcy 

forms, arguing that there were discrepancies between the forms and the affidavit of 

indigence filed in this case. Appellees alleged that the affidavit of indigence was 

misleading and amounted to a knowing, intentional, and willful misrepresentation 

of fact. In particular, appellees pointed to a difference in the amount of income 

claimed. 

In the affidavit of indigence, the Poffs described “monthly net income after 

taxes” as $3,750.00. They attached a two-week paystub for William showing “gross 

pay” of $2,577.50, taxes totaling $225.05, and “net pay” of $1,882.78 after all 

deductions (including health, dental, and life insurance totaling $465.67, and a 

uniform deduction of $4.00). At the hearing on the motion to dismiss, Julia Poff 

explained that she reached the $3,750.00 figure by multiplying the two-week “net 

pay” from the paystub, resulting in $3,764.00, and then rounded down to $3,750.00. 

Also in the affidavit, the Poffs listed their monthly expenses totaling $4,599.00. 

Accordingly, it appears from the affidavit that the Poffs’ monthly expenses exceed 

their income by $849.00. The Poffs identified their bank account balance as negative 

$70.00 with total personal property valued at $1,430.00. 

The bankruptcy forms tell a different story. The Poffs identified their monthly 

“gross” income excluding payroll deductions as $5,457.50 with “take-home pay” 

after payroll deductions as $4,011.48. The Poffs listed their monthly expenses 

totaling $3,481.00. The Poffs calculated their monthly net income by subtracting 

their expenses from income: $530.48. Accordingly, the Poffs wrote that their 

monthly income exceeded their expenses by $530.48. They claimed total personal 

property valued at $16,600.67. 
5

At the hearing on appellees’ motion to dismiss, Julia Poff argued that the 

differences between the affidavit of indigence and the bankruptcy forms resulted 

from the affidavit’s listing of “net” income and the bankruptcy forms’ listing of 

“gross” income. The trial court explained that he understood the Poffs’ argument 

about “gross versus net,” but that the Poffs’ argument “doesn’t take into 

consideration the various subparts that are in discrepancies.” The trial court ruled 

that the “motion on the fraud of the Court is well-founded and I do adopt the 

allegations that are stated in the defendant’s motion as the Orders of this Court.” The 

court also ruled that the affidavit of indigence was “inadequate” and that the case 

should be dismissed. 

The trial court signed a written order dismissing the case. The court wrote that 

it “made findings of fact and conclusions of law as stated upon the record.” The court 

also found that the Poffs filed “a Paupers Affidavit when they were not qualified to 

file such papers” and that there was “an intentional violation of filing a fraudulent 

Paupers Affidavit.” 

The Poffs appealed. 

B. Issue and Argument 

The Poffs’ third issue is: “Abuse of judicial discretion in contesting of a 

Pauper’s Affidavit 6 months after it was filed and declaring that it was fraud without 

significant evidence in full as well as not allowing the Pro Se litigant the chance to 

fully explain the difference between ‘net Income’ on one document and ‘gross 

income’ on another.” Within this issue, the Poffs again note the difference between 

“gross income” and “net income.” They also contend that (1) William lost his job 

the day after one of the appellees’ friends, a Waller County deputy, went to 

William’s place of employment; (2) there is undisputed evidence of the Poffs’ 

receiving governmental assistance, which “barred any type of contest”; (3) the 
6

appellees contested the affidavit “well past the 10 days’ statutory limit”; and (4) the 

recently amended Rule 145 of the Texas Rules of Civil Procedure required sworn 

evidence to challenge the Poffs’ affidavit. 

C. Analysis 

Neither party, nor the trial court, has referred to any rule or statute that might 

authorize the trial court’s dismissal of the Poffs’ claim based upon a fraudulent 

affidavit of indigence. But, because the Poffs filed an affidavit of indigence under 

Rule 145 of the Texas Rules of Civil Procedure, the trial court had statutory authority 

to dismiss the action on a finding that “the allegation of poverty in the affidavit is 

false.” Tex. Civ. Prac. & Rem. Code § 13.001(a)(1).3

 Based on the trial court’s ruling 

that the affidavit of indigence was “inadequate” and “fraudulent,” and that the Poffs 

were not “qualified” to file the affidavit, we will treat the dismissal as within the trial 

court’s authority under Section 13.001(a)(1). See Clark v. Clark, No. 01-13-00577-

CV, 2014 WL 6853470, at *3 (Tex. App.—Houston [1st Dist.] Dec. 4, 2014, no pet.) 

(mem. op.) (holding that the trial court’s dismissal was based on Section 

13.001(a)(1), although the order did not expressly identify the statutory basis for 

dismissal, because the order stated that the party was able to pay all filing fees and 

had not filed the affidavit in good faith); Jackson v. N. Forest Indep. Sch. Dist., No. 

 

3 Furthermore, a trial court may have inherent authority to impose death penalty sanctions 

when a party has committed perjury or fabricated evidence. See JNS Enter., Inc. v. Dixie

Demolition, LLC, 430 S.W.3d 444, 452–53 (Tex. App.—Austin 2013, no pet.) (noting that a trial 

court has inherent authority to impose sanctions for a party’s deplorable conduct, and that 

fabricating evidence is the most egregious conduct amounting to a “fraud on the court” (quotation 

omitted)); Daniel v. Kelley Oil Corp., 981 S.W.2d 230, 232–36 (Tex. App.—Houston [1st Dist.] 

1998, pet. denied) (en banc) (noting that a trial court has implied power to manage controversies 

before it, that the trial court did not err by resolving a factual dispute as to whether certain evidence 

had been fabricated, and that the trial court did not err by imposing death penalty sanctions); 

Vaughn v. Tex. Emp’t Comm’n, 792 S.W.2d 139, 144 (Tex. App.—Houston [1st Dist.] 1990, no 

writ) (no abuse of discretion when trial court dismissed a party’s causes of action after the party 

committed perjury during discovery).
7

01-10-00010-CV, 2012 WL 246052, at *4 (Tex. App.—Houston [1st Dist.] Jan. 26, 

2012, no pet.) (mem. op.) (same). 

 We review a trial court’s dismissal under Section 13.001(a)(1) for an abuse of 

discretion. See Clark, 2014 WL 6853470, at *1; Jackson, 2012 WL 246052, at *3 & 

n.11. A trial court abuses its discretion if it acts in an arbitrary or unreasonable 

manner without reference to guiding rules or principles. Jackson, 2012 WL 246052 

at *3. “To show a clear abuse of discretion, an appellant must show that, under the 

circumstances of the case, the facts and law permitted the trial court to make but one 

decision.” Id. 

The test for determining indigence is whether the record as a whole shows by 

a preponderance of the evidence that the litigant would be unable to pay the costs, 

or a part thereof, or give security therefor, if the litigant really wanted to and made 

a good-faith effort to do so. Higgins v. Randall Cty. Sheriff’s Office, 257 S.W.3d 

684, 686 (Tex. 2008) (citing Pinchback v. Hockless, 164 S.W.2d 19, 20 (Tex. 1942)). 

The statutory text of Section 13.001(a)(1) does not require the trial court to find that 

the allegation of poverty was false when it was made or that the affidavit itself 

contained a false statement—a trial court may dismiss the action if the allegation of 

poverty, “although true when filed, subsequently becomes inaccurate.” Cf. 

Leachman v. Stephens, No. 02-13-00357-CV, 2016 WL 6648747, at *10–11, *13 

(Tex. App.—Fort Worth Nov. 10, 2016, pet. denied) (construing similar provision 

in Chapter 14 regarding in forma pauperis inmate litigation; collecting cases and 

reasoning that an indigent litigant “can give totally accurate information about his 

financial status or, more specifically, the status of his trust account, but may 

nevertheless be found to have given a false ‘allegation of poverty’ if the trial court 

disagrees with the inmate regarding whether his financial status constitutes 

‘indigence’ for purposes of paying costs” (quoting Tex. Civ. Prac. & Rem. Code § 
8

14.003(a)(1))); see also Tex. R. Civ. P. 145 (stating that a party may move to require 

the declarant to pay costs if “the Statement was materially false when it was made” 

or if “because of changed circumstances, the Statement is no longer true in material 

respects”).4

 The First Court of Appeals has held that a trial court abuses its discretion 

under Section 13.001(a)(1) when (1) the trial court is faced with a conclusory contest 

under Rule 145, (2) the only evidence concerning the matter is the uncontradicted 

affidavit of indigence, and (3) the trial court fails to set forth its reasoning in support 

of its finding that the allegation of poverty is false. See Clark, 2014 WL 6853470, at 

*3; Jackson, 2012 WL 246052, at *5–6. In both Clark and Jackson, no one identified 

any error or omission in the indigent parties’ affidavits; the only evidence in the 

record consisted of the affidavits, which demonstrated the inability to pay; and the 

trial courts did not identify any reasons for their rulings. See Clark, 2014 WL 

6853470, at *3; Jackson, 2012 WL 246052, at *5–6.

 In contrast, here, the trial court specifically noted discrepancies between the 

Poffs’ affidavit and their bankruptcy filings. The trial court understood the Poffs’ 

argument concerning the difference between “net” and “gross” income on the 

respective documents, yet the discrepancies among the subparts in the documents 

 

4 We consider Chapter 14 cases addressing whether an allegation of poverty is false 

because the two statutes use substantially the same language. Compare Tex. Civ. Prac. & Rem. 

Code § 13.001(a)(1) (court may dismiss if “the allegation of poverty in the affidavit is false”), with

Tex. Civ. Prac. & Rem. Code. § 14.003(a)(1) (court may dismiss if “the allegation of poverty in 

the affidavit or unsworn declaration is false”); see also West v. Robinson, 486 S.W.3d 669, 672 

(Tex. App.—Amarillo 2016, pet. denied) (analyzing the trial court’s frivolousness dismissal as 

one under Chapter 13 even though the trial court erroneously applied Chapter 14 because of the 

“historical and direct relationship between Chapters 13 and 14, and because there is effectively no 

difference in the two statutes’ descriptions of the court’s inquiry”); Lynch v. Jack in the Box, No. 

03-06-00444-CV, 2007 WL 2274838, at *2 (Tex. App.—Austin Aug. 9, 2007, no pet.) (mem. op.) 

(applying the reasoning from a Chapter 14 case to a Chapter 13 case; noting that Chapter 14 was 

the “counterpart to [C]hapter 13 that applies specifically to inmate litigation”).
9

were substantial. For example, although the Poffs claimed in the affidavit that their 

monthly expenses exceeded income by $849.00, they claimed in the bankruptcy 

forms that their monthly income exceeded expenses by $530.48. 

 Based on the Poffs’ bankruptcy court filings, the trial court heard evidence 

that the Poffs were able to pay court costs if they had wanted to and had made a good 

faith effort to do so. Thus, the facts and law permitted the trial court to find that the 

allegation of poverty was false. Under these circumstances, we cannot conclude that 

the trial court’s finding amounted to an abuse of discretion. Cf. Mendoza v. 

Livingston, No. 09-12-00594-CV, 2014 WL 670119, at *3 (Tex. App.—Beaumont 

Feb. 20, 2014, no pet.) (mem. op.) (no abuse of discretion to dismiss based on false 

affidavit of indigence when the litigant had an account balance of $6.15, an average 

six-month balance of $32.21, and cash deposits in the prior six months totaling 

$690.00); McGoldrick v. Velasquez, No. 13-12-00766-CV, 2013 WL 3895315, at 

*1–2 (Tex. App.—Corpus Christi July 25, 2013, no pet.) (mem. op.) (no abuse of 

discretion to dismiss based on false affidavit of indigence when the litigant had an 

average six-month balance of $36.18 and cash deposits in the prior six months 

totaling $453.42); Vega v. Tex. Dep’t of Crim. Justice–Corr. Inst. Div., No. 12-10-

00149-CV, 2011 WL 3273256, at *2–3 (Tex. App.—Tyler July 29, 2011, no pet.) 

(mem. op.) (no abuse of discretion to dismiss based on false affidavit of indigence 

when the litigant had an average six-month balance of $172.02 and cash deposits in 

the prior six months totaling $530.00); McCullough v. Dretke, No. 2-07-294-CV, 

2008 WL 4180365, at *3 (Tex. App.—Fort Worth Sept. 11, 2008, no pet.) (mem. 

op.) (no abuse of discretion to dismiss based on false affidavit of indigence when the 

litigant had an average six-month balance of $184.92). 

 Regarding the Poffs’ specific arguments on appeal, we note that the Poffs 

never made any of their complaints to the trial court or obtained rulings on any such 
10

objections—that William lost his job, that the court was “barred” from dismissing 

based on the Poffs’ claiming governmental benefits or because the appellees’ 

challenged the Poffs’ affidavit more than ten days after the Poffs filed it, or that the 

appellees’ evidence was not sworn. See Tex. R. App. P. 33.1 (to preserve error, 

generally, appellants must make timely complaints to the trial court and obtain 

rulings). No evidence in the record supports the Poffs’ contention that William lost 

his job. The Poffs cite no authority for the contention that their receipt of 

governmental benefits, or the fact that the appellees did not contest the affidavit 

within ten days, “barred” the trial court’s dismissal. To the extent the Texas 

procedural rules concerning contests to affidavits of indigence might govern the 

exercise of a trial court’s discretion under Section 13.001,5

 nothing in the applicable 

versions of the rules supports the Poffs’ contentions. See Tex. R. Civ. P. 145 (noting 

that the receipt of governmental benefits is “evidence of the declarant’s inability to 

afford costs,” but not setting up a bar to challenge based on receipt of governmental 

benefits; not including any time limit for challenging the affidavit); see also Tex. R. 

App. P. 20.1.6

 

5

See In re CompleteRx, Ltd., 366 S.W.3d 318, 324 (Tex. App.—Tyler 2012, no writ) (“It 

is well established that when a conflict arises between a statute and a rule of procedure, we must 

harmonize the statute and the rule if possible.”); see also Johnstone v. State, 22 S.W.3d 408, 409 

(Tex. 2000) (“[W]hen a rule of procedure conflicts with a statute, the statute prevails unless the 

rule has been passed subsequent to the statute and repeals the statute as provided by Texas 

Government Code section 22.004.”).

6 Although the Poffs might have based their appellate arguments on older versions of the 

rules, the rules were amended and made effective before appellees filed their motion to dismiss. 

See Sup. Ct. Tex., Final Approval of Amendments to the Texas Rules of Civil Procedure and the 

Texas Rules of Appellate Procedure and of a Form Statement of Inability to Afford Payment of 

Court Costs, Docket No. 16-9122 (Aug. 31, 2016) (“The amendments are effective September 1, 

2016. The amended rules apply to any contest of, or challenge to, a claim of inability to afford 

payment of court costs that is pending on September 1.”), available at

www.txcourts.gov/media/1435934/169122.pdf.
11

 Finally, we reiterate that the Poffs did not obtain a ruling on any objection 

concerning the trial court’s consideration of unsworn evidence under Rule 145, so 

the Poffs did not preserve this complaint for appellate review. See Thomas v. Daniel, 

No. 02-12-00397-CV, 2013 WL 3771321, at *2 (Tex. App.—Fort Worth July 18, 

2013, no pet.) (mem. op.) (no error preserved for a complaint that the trial court 

admitted unsworn testimony); De La Garza v. Salazar, 851 S.W.2d 380, 383 (Tex. 

App.—San Antonio 1993, no writ) (“[B]y failing to object to the informal 

presentation of evidence appellant has not preserved the right to complain about the 

absence of sworn evidence. To hold otherwise would permit a litigant to acquiesce 

in an informal recitation of essentially undisputed evidence, obtain a ruling, and then 

later appeal and argue lack of sworn evidence.” (citations omitted)); cf., e.g., Choice 

v. Gibbs, 222 S.W.3d 832, 838 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (no 

error preserved regarding objection to summary judgment affidavit when the trial 

court never ruled on the objection). 

 The Poffs’ third issue is overruled. 

III. CONCLUSION

Having overruled the Poffs’ issues necessary for the disposition of the appeal, 

we affirm the trial court’s judgment.

 

 /s/ Ken Wise

 Justice 

Panel consists of Justices Christopher, Brown, and Wise.