### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00029- CV

In re Myr iam Mer edith

ORI GINAL P ROCEEDI NG F ROM MI LAM CO UNTY

M E M O R A N D U M O P I N I O N My riam Mere dith has filed a petition for writ of mandamus seeking relief from the county court’s ruling s conce rning her timely filed and uncontested statement of inability to pay costs

on appea l from the just ice c ourt. Real party in interest Thorndale Housing Authority (THA) filed suit to evict Mere dith for lease violations, and the justice court rende red judgme nt in favor of THA.
Mere dith seeks to appea l and asks this Court to order Respondent the Honora ble Dave Ba

rkeme y er, i n t h e M i l am County Court, to vaca te his order s deny ing Mere dith’s reque st to proce ed with h er
appea l w ithout pay

ing costs in c ounty court, motion for rec onsideration, and reque st f or a hear ing, which re sulted in the remand of the appe al to justice court. We conditionally g rant the w rit.

BACK GR OUND On November 18, 2014, the justice court rende red judgme nt for possession in favor of THA. I t appea

rs from the rec ord that on the following day , Mere dith, acting pro se, filed a notice of appea l and a sworn statement of inability to pay . I n her aff idavit, Mere dith testified that she had

no cash on hand, incurre d monthly expenses of $541, and rec eived $341 in Social Security , $388 in Supplemental Securi t y I ncome, and $81.00 in food assistance per month. The justice courtforwa

rded the file to the Milam County Court, wher e it was rec eived on November 24, 2014. That

same day , the Milam County Clerk sent notice to Mere dith that a $2 3 5 fi l l ing fee had to be paid within 20 day s “for the appea l to be deeme d to be perf ecte d, in acc ordanc e with Rule 143A of [t he]
Texas Rules of Civil Procedur e.” On De cembe r 3, 2014, Mere dith filed an unsworn handwr itten letter informing the c ourt of her inability to pay , repe ating the i ncome statements contained in the aff idavit she filed in justice court, and informing the county court that she had “pre viously rec ieved [si c] appea l in [j ustice court] for inabi l i t y to pay .” On Dec ember 5, 2014, Respondent denied
Mere dith’s “re quest” by an order handwr itten on Mere dith’s let t er . On Dec ember 9, 2014, the Milam County Clerk notified Mere dith that her “re quest for an I nability to Pay ” had been denied and that if pay ment was not rec eived by noon on Dec ember 24, 2014, her case would be “dire cted back
to J P#4 and the judg ment there will stand.”

On Dec ember 18, Mere dith obtained counsel thr o ug h L one Star L eg al Aid. On
Dec ember 23, 2014, her attorney filed a motion for rec onsideration of her reque st to proce ed without
pay ing costs and attache d a copy of Mere dith’s s wo rn s t at em ent of inability to pay filed in the justice court. Without holdi ng a hea ring , Respondent denied the motion on J anuar y 6, 2015. On

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J anuar y 9, 2015, Mere dith’s counsel soug ht a hear ing by submitt ing a proposed notice of hear ing to be signe d by Respondent. That same day , the cler k’s office provided Mere dith’s counsel a copy of the notice of hear ing with an undated, handwr itten entry , signe d by Respondent, order ing “Reque st

The county court docket sh ee t re fl ec t s that the motion was denied on J anuar y 6, 2014, 1 which we construe a s a ty pog raphic al er

ror in the da te. 2denied.” The cler k’s office also informed Mere dith’s c ounsel that if no other paper work was filed by J anuar y 12, 2015, the file would be returne d to the justice court.
On J anuar y 14, 2015, Mere dith lear

ned that a writ of possession had issued and filed this petition for writ of mandamus and an emer g ency motion for a temporar y stay pending this
Court’s ruling on her mandamus petition. On J anuar y 15, 2015, we g rante d temporar y relief stay ing
execut i o n o f t h e wr it of possession until further order of this Court and reque sted rea l party in interest THA to file a re sponse no later than J anuar

y 20, 2015. No re sponse has be en re ceive d.

STANDARD OF REVIEW
A party seeking mandamus relief must establish that (1) the trial court clea rly abused its discr etion and (2) there is no adequa te re medy by appea l. See I

n re Prudential Ins. Co. of Am. , 148 S.W

. 3 d 1 2 4 , 135–36 (Tex. 2004) (orig

. proce eding ). “Unless a statute authorizes an interlocutory appea l, appellate courts g ener ally only have jurisdiction over final judgme nts.” CMH
Homes v. Perez , 340 S.W

. 3 d 444, 447 (Tex. 2011). A county court’s decision deny ing a party ’s attempt to appea l from ju s t i ce co u rt without furnishing a bond or pay ing a cash deposit is not
among the list of appea lable interlocutory order s, see Tex. Civ. Prac. & Rem. Code § 51.014(a) , and

we find no other statute that au t h o ri z es s uch an appea l. See Redlich v. Stonewood Ranch , No. 02-14-00390- CV, 2015 Tex. App. L EXI S 385, at *1–2 (Tex. App.—For t Worth J an. 15, 2015,

no pet.) (per curia

m) (mem. op.) (“We are awa re of no statute that authorizes an appea l to this court from the county court’s decision on appea l from the justice court deny ing Redlich’s attempt to appea l without f urnishing a

bond or pay

ing a cash bond.” ). This Court has previously held that a rema nd
to justice court unde r R u l e 1 4 3 a fo r failure t o pay costs on appea l from jus tice court is not a final

3judgme nt subject to appea l. McG aughy v. Lamm , No. 03-99-00643- CV , 2 0 0 0 T e x. A p p. L EXI S 921,
at *3–4 (Tex. App.—Austin Fe b. 10, 2000, no pet.) (not desig nated for publication) (whe re county

co u rt disapproved pauper ’s aff idavit and returne d file to justice court, and rec ord ref lected n o
proce eding bey ond county cler k’s notation that she was returning re cord to justice court, there

was no final appea lable order , and court of appea ls lacke d jurisdiction over appea l); see Rey nolds v. Garcia , No. 05-08-01453- CV, 2009 Tex. App. L EXI S 2053, at *2 (Tex. App—Dallas
Mar. 25, 2009, no pet.) (per curia m) (mem. op.) (“A n order requiring appellant t o post an appea l bond to proce ed with an appea l to a county court from the justice court is not a final judgme nt, nor is it an ap p ea l ab l e interlocutory order .”); see also Redlich , 2015 Tex. App. L EXI S 385, at *1–2 (citing McG aughy and dismiss ing for lack of jurisdiction appea l from county court order sustaining
contest to a ffidavit of inability to pa y on appea l from justice court). As a result, Mere dith lac ks an adequate reme dy at law and is entitled to mandamus if she establishes that the county court abused its discretion in deny ing he r re quest to proce ed without pay ing c osts.

“A trial court ‘abuse s its discret i o n wh en i t rea ches a decision so arbitra ry or

unrea sonable as to amount to a clea r and prejudici al er ro r o f l aw.’ ” BMC Software Belg., N.V.

v. Marchand , 83 S.W .3d 789, 800 (Tex. 2002) (quoting Johns o n v. Fourth Court of Appeals , 700 S.W .2d 916, 917 (Tex. 1985)). Be cause a trial court has no discretion in deter mining what the law is or in apply ing the law to the fac ts of the case , the failure to analy ze or apply the law corr ectly constitutes an abuse of discretion. In re Texas Dep’ t of Family & Protective Servs. , 210 S.W .3d 609,
612 (Tex. 2006); In re Thompson , 330 S.W

. 3 d 4 1 1, 417 (Tex. App.—Austin 2010, orig

. proce eding ).

4DISCUSSIO N
I t appea rs from the rec ord that the Milam County Court relied on Rule 143a in requiring Mere dith to pay costs on appea l and rema nding the case to the justice court upon her failure
to do so. See Tex. R. Civ. P. 143a (if appellant fails to pay costs on appea l from judgme nt of justice
court within 20 day s afte r being notified to do so by county cler k, appea l deeme d not perf ecte d and file returne d to justice court). Mere dith contends that the county court has misapplied the law to the fac ts of this case and has there fore abused its discretion. We ag ree . Section 24.0052 of the Property Code provides that a tenant in a residential eviction suit who is unable to pay the costs of appea l or file an appea l bond may appea l the judgme nt of the justice court by filing with the justice court, not later than the fifth day afte r t he d at e t he judgment i s signe d, a pauper’s affida vit sworn before the cler k of the justice court or a notary public. See Tex. Prop. Code § 24.0052(a) ; see also Tex. R. Civ.
P. 510.9(a) (par

ty may appea l judgme nt in eviction ca s e b y fi ling bond, making cash deposit, or filing sworn statement of inability to pay with justi ce co u rt within five day s afte r judgme nt is signe d), (c) (1) (appe llant who cannot furnish bond or pay cash deposit may file sworn statement of i n abil ity to pay that meets require ments of Rule 502.3(b))

. The aff idavit must contain cer

tai n specifie d information, including the tenant’s identity ; t h e n at u re and amount of the tenant’s employ ment, g overnme ntal entitlement, and other income; the income of the tenant’s spouse, if any ; other available cash, funds, an d p ro p er t y ; debts and monthly expenses, and the number of the
tenant’s dependa

nts. See Tex. Prop. Code § 24.0052(a) ; Tex. R. Civ. P. 502.3(b), 510.9(c) (1). Rule
510.9 further provides that “[a]n appea l is perf ecte d when a bond, cash d eposi t, or statement of inability to pay is filed i n ac co rd an ce with the rule.” Tex. R. Civ. P. 510.9(f)

. Moreove r, under

5section 24.0052, if the justice court approves the pauper ’s aff idavit of a tenant, the tenant is not require d to pay the county court filing fee or file an additional aff idavit in the county court. See Tex. Prop. Code § 24.0052(e)

.

Her e, the rec ord ref

lects that Mere dith timely filed with the justice court a s wo rn statement of inability to pay on a for m provided by

the justice cour

t. See id. § 24.0052(c) (justice
court may make available aff idavit form that person may use to comply with req u i re ments for
pauper ’s aff

idavit). The aff

idavit contained the require d financ ial information and otherwise complied with the require ment s o f the Property Code and the rules of civil proce dure, see id. § 24.0052(a) ; Tex. R. Civ. P. 502.3(b), 510.9(c) (1), and Mere dith’s a ppeal was perf

ecte d upon her filing the aff

idavit, see Tex. R. Civ. P. 510.9(f)

. THA did not contest the statement of inability to
pay , see Tex. R. Civ. P. 502.3(d), 510.9(c) (2), and the justice court forwa rded the file to the county court, indicating its approva l of the compliant aff idavit. There fore , under section 24.0052, Mere dith

was not re q u ired to pay the county court filing fee or file an additional aff idavit in the county
court. See Tex. Prop. Code § 24.0052(e) ; see als o Hi g g i n s v. Randall Cnty. Sheriff’s Office , 257 S.W .3d 684, 688 (Tex. 2008) (“‘ I ndige ncy provisions, like other appellate rules, have long been liberally construed in favor of a rig ht to appea l.’”) (quoting Jones v. Stayman , 747 S.W .2d 369, 370 (Tex. 1987)). Ba sed on the rec ord befor e us, we conclude that the county court misapplied the law
to the facts of this case and ther efor e cle arly abused its discre tion in refusing to acc ept Mere dith’s sworn and uncontested affida vit of i nability to pay that was timely filed with the j ustice court and complied with applicable provisions of the Property Code and the rules o f ci v i l proce dure; in requiring her to pay costs on appea l in the county court; and in rema nding the case upon her failure

6to pay costs. See In re Texas Dep’ t of Family & Protective Servs. , 2 1 0 S

. W .3d at 612; In re

Thompson , 330 S.W .3d at 417.

CONCLUSION

We condit i o n al ly g rant Mere dith’s petition for writ of mandamus and direc t the county court to vaca

te its handwr itte n o rd er of Dec ember 5, 2014, deny ing Mere dith’s reque st to
proce ed with her appea l without pay ing costs in county court, its order of J anuar y 6, 2015, deny ing her motion for rec onsideration, and its undated handwr itten order deny ing her reque st for a hear ing

on her motion for rec onsideration. We further direc t the county court to reinstate Mere dith’s appea l and allow her to proce ed without pay ing costs. Writ wil l i s s u e o n l y i f the county court fails to comply within ten day s of the date of this opinion.

__________________________________________ Melissa Goodwin, Jus tice
Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field Filed: May

1, 2015

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