Motion Denied; Order filed December 8, 2016. 

In The

Fourteenth Court of Appeals

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NO. 14-16-00619-CV

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DORA LINDA RODRIGUEZ AND FRANCISCO RODRIGUEZ, Appellants

V.

OVATION SERVICE, LLC, Appellee

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Cause No. 2014-41901

ORDER

Appellants were not permitted to proceed without payment of costs in the trial 

court. On September 23, 2016, appellants Dora Linda Rodriguez and Francisco 

Rodriguez filed in this court a motion to show material change in financial 

circumstances. See Tex. R. App. P. 20.1(b)(3). According to appellants’ motion, on 

October 16, 2014, the trial court sustained the district clerk’s contest to appellants’ 

pauper’s oaths. Texas Rule of Appellate Procedure 20.1(b)(3)(B) provides that this 

court may decide such a motion based on the record or refer the motion to the trial 
court with instructions to hear evidence and issue findings of fact. 

On October 13, 2016, this court referred appellants’ motion to the trial court. 

On November 10, 2016, the trial court held a hearing at which all parties appeared. 

Appellants Francisco and Dora Linda Rodriguez testified at the hearing. Francisco 

testified that their financial circumstances had changed dramatically since the trial 

court’s initial ruling in 2014. He testified that their previous lawyer drained their 

finances by charging them $3,000, but not performing to the Rodriguezes’ 

satisfaction. At the time of the hearing Francisco had been unemployed for 

approximately one month. His electricity and gas had been turned off, and his car 

had been repossessed. He has paid property taxes on the property that is the subject 

of the litigation. 

Francisco submitted an affidavit to the court, which was deficient in that it 

failed to (1) state the costs he had to pay for the appeal; (2) list real or personal 

property; (3) list dependents or debts owed; or (4) list the nature and amount of 

monthly expenses. Francisco testified that his wife attempted to obtain loans to pay 

the court costs, but was denied. He had no records of the attempts to obtain loans.

Dora Linda Rodriguez, Francisco’s wife, testified that at the time of the 

hearing the Rodriguezes were one month behind in rent. Dora Linda testified that 

their previous lawyer moved to Kuwait before completing work for them. Dora 

Linda testified that they still owned property that was the subject of the suit. They 

were paying property taxes and no financial institution or taxing authority had begun 

foreclosure proceedings. Dora Linda takes home approximately $2,000 in monthly 

income, and has a car. 

No evidence was presented as to the cost of the clerk’s record or reporter’s 

record. 
On November 11, 2016, the trial court signed findings of fact and conclusions 

of law in which the court found:

Findings of Fact

1. On September 23, 2016, Plaintiffs/Appellants filed a Motion at the

Fourteenth Court of Appeals to show material change in financial 

circumstances.

2, On October 18, 2016, Plaintiffs/Appellants filed a Motion to 

Determine Inability to Pay Costs (titled by Plaintiffs/Appellants as 

“Motion to Determine Indigency Upon Hearing, For Purposes of 

Appeal.”).

3. On October 19, 2016, Court Reporter, Jodi Masera, filed a Contest 

of Affidavit of indigence under Texas Rule of Appellate Procedure 

20.1.

4. Plaintiff/Appellant, Francisco Rodriguez, filed an Affidavit of 

Indigency with the Court on September 7, 2016.

5. On November 10, 2016 an evidentiary hearing was held to determine

Plaintiffs/Appellants ability to afford costs.

6. Plaintiff/Appellant, Francisco Rodriguez, testified that there was a 

change in the affidavit, in particular that his net income after taxes 

decreased, but that his wife’s income increased by more than the 

decrease.

7. Plaintiff/Appellant, Dora Rodriguez, did not file an Affidavit of 

Indigency itemizing the information required by Texas Rule of 

Appellate Procedure 20.1(b).

8. Plaintiff/Appellant, Dora Rodriguez, filed an Affidavit certain facts

about her financial condition, but did not describe the items set forth in 

Texas Rule of Appellate Procedure 20.1(b).

9, Plaintiffs/Appellants did not provide evidence regarding the amount 

of court costs.

10. Plaintiffs/Appellants did not provide evidence of their inability to 

afford court costs.

Conclusions of Law

1. Plaintiffs/Appellants bore the burden to prove inability to afford 
costs.

2. Proper notice of the oral evidentiary hearing required under Texas 

Rule of Civil Procedure 145(f)(5) was given.

3. The Court finds that despite being given proper notice of the oral 

evidentiary hearing, the Plaintiffs/Appellants failed to provide 

sufficient evidence of costs. Based on the burden and the lack of 

evidence presented to carry their burden, this Court finds that

Plaintiffs/Appellants can afford to pay the costs of Court,

4. The Court finds that despite being given proper notice of the oral 

evidentiary hearing, Plaintiffs/Appellants failed to provide sufficient 

evidence of their inability to afford costs. Based on the burden and the 

lack of evidence presented to carry their burden, this Court finds that 

Plaintiffs/Appellants can afford to pay the costs of Court.

5. The Court finds that despite being given proper notice of the oral 

evidentiary hearing, Plaintiffs/Appellants failed to comply with the 

requirements of Texas Rule of Appellate Procedure 20.1(b). Based on 

the burden and the lack of evidence presented to carry their burden, this 

Court finds that Plaintiffs/Appellants can afford to pay the costs of

Court

6. The Court finds that despite being given proper notice of the oral 

evidentiary hearing, Plaintiffs/Appellants failed to provide sufficient 

evidence to illustrate a change in financial circumstances to show 

inability to afford costs. Based on the burden and the lack of evidence 

presented to carry their burden, this Court finds that 

Plaintiffs/Appellants can afford to pay the costs of Court[.]

7. The Court finds that, the Plaintiffs/Appellants’ Net Combined 

Income increased from the Plaintiff/Appellant Francisco Rodriguez 

filed his Affidavit of Indigency.

8. The Court finds that, based on the evidence provided by

Plaintiffs/Appellants, they have not had a change in financial 

circumstances and can therefore afford costs.

Having reviewed the record, we conclude it contains sufficient evidence to 

support the trial court’s findings that appellants’ financial circumstances have not 

materially changed. Accordingly, we deny appellants’ motion to proceed without 

payment of costs.
Appellants are directed to pay the filing fee in this appeal, and to pay or make 

arrangements to pay for the clerk’s record and the reporter’s record. Unless 

appellants pay the filing fee, and provide this court with proof of payment for the 

record within fifteen days of the date of this order, we will dismiss the appeal for 

want of prosecution. See Tex. R. App. P. 37.3(b).

PER CURIAM

Panel consists of Chief Justice Frost and Justices McCally and Brown.