Order issued July 24, 2012

In The

Court of Appeals 

For The

First District of Texas

NO. 01-09-01059-CV ____________

FELDON BONNER, II, Appellant

V.

SAUL AUSTIN AND LINDA MAY AUSTIN, Appellees

On Appeal from the 280th District Court

Harris County, Texas

Trial Court Cause No. 2007-51857

MEMORANDUM ORDER

Appellees, Saul and Linda May Austin, sued appellant, Feldon Bonner, II, 

individually and d/b/a Powerhouse Ministry/Church, for fraudulent transfer of 

certain real property and for slander of title, seeking actual damages, punitive 
2

damages, and declaratory relief. Appellant counterclaimed to quiet the title to the 

property at issue and brought claims in trespass and unjust enrichment. A jury 

found in favor of appellees on all claims, except that appellant was declared to be 

the owner of two of the several tracts at issue. Appellant filed a notice of appeal

and claimed that he was unable to pay the costs of appeal. Appellant challenges the 

trial court’s order sustaining a contest to his indigence claim. See In re Arroyo, 988 

S.W.2d 737, 739 (Tex. 1998). 

We affirm the trial court’s order.

Standard of Review and Principles of Law

Texas Civil Practice and Remedies Code section 13.003 sets out the statutory 

requirements that must be met for an appellant to obtain a free record on appeal. 

See TEX. CIV. PRAC. & REM. CODE ANN. § 13.003(a) (West 2002).1 Section 13.003 

 1 We recognize that section 13.003 does not apply to a suit governed by Civil 

Practice and Remedies Code Chapter 14, “Inmate Litigation.” See TEX. CIV. PRAC.

& REM. CODE ANN. § 13.004 (West 2002); Nabelek v. Aldrich, 157 S.W.3d 884, 

885 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Appellant was an inmate 

throughout the underlying proceedings and was paroled after filing his appeal from 

the trial court’s judgment on the merits. Chapter 14 does not, however, govern the

appeal. 

Civil Practice and Remedies Code section 14.002, which defines the scope of 

Chapter 14, was recently amended. Prior to amendment, section 14.002 provided 

that Chapter 14 “applie[d] only to a suit brought by an inmate in a district, county, 

justice of the peace, or small claims court in which an affidavit or unsworn 

declaration of inability to pay costs [was] filed by the inmate.” See Act of May 19, 

1995, 74th Leg., R.S., ch. 378, § 2, 1995 Tex. Gen. Laws 2921, 2922, amended by

Act of , 2011, 82nd Leg., 1st C.S., ch. 3, § 12.01, 2011 Tex. Sess. Laws Serv. 116, 

161. This and other courts have concluded that, in its pre-amended form, “Chapter 
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states, in pertinent part, that a trial court clerk and court reporter shall provide a 

record for appeal without cost only if:

(1) an affidavit of inability to pay the cost of the appeal has 

been filed under the Texas Rules of Appellate Procedure; 

and

(2) the trial judge finds:

(A) the appeal is not frivolous; and

(B) the statement of facts and the clerk’s transcript is 

needed to decide the issue presented by the appeal.

Id. Thus, to obtain a free record on appeal, an appellant must both file an affidavit 

of indigence under the Rules of Appellate Procedure and request certain findings 

from the trial court. 

 

14 [did] not apply to appellate courts.” Nabelek, 157 S.W.3d at 885; see Jackson v. 

Bd. of Pardons and Paroles, 178 S.W.3d 272, 277–78 (Tex. App.—Houston [1st 

Dist.] 2005, no pet.) (concluding that section 14.004 did not apply to appeal and 

applying section 13.003). As amended, section 14.002 now provides that Chapter 

14 applies to “an action, including an appeal or original proceeding, brought by an 

inmate in a district, county, justice of the peace, or small claims court or an 

appellate court, including the supreme court or the court of criminal appeals, in 

which an affidavit or unsworn declaration of inability to pay costs is filed by the 

inmate.” TEX. CIV. PRAC. & REM. CODE ANN. § 14.002 (West Supp. 2011) 

(emphasis added). The amended version “applies only to an action brought on or 

after the effective date,” January 1, 2012. 

In 1989, appellant was convicted of the offenses of aggravated robbery and murder, 

and he was assessed punishment of confinement for life. See Bonner v. State, 804 

S.W.2d 580, 581 (Tex. App.—Houston [1st Dist.] 1991, pet. ref’d). While 

appellant was an inmate, appellees brought the underlying suit against appellant 

and appellant brought this appeal. Because appellant brought his appeal prior to 

January 1, 2012, the appeal does not fall within the scope of Chapter 14. See 

Nabelek, 157 S.W.3d at 885. Hence, section 13.003 applies. See Jackson, 178 

S.W.3d at 277–78.
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Affidavits of indigence are governed by Rule of Appellate Procedure 20.1. 

TEX. R. APP. P. 20.1; see TEX. CIV. PRAC. & REM. CODE ANN. § 13.003(a)(1) 

(requiring that affidavit of indigence be filed in accordance with Rules of Appellate 

Procedure). Rule 20.1 allows a party to proceed on appeal without advance 

payment of costs2 if (1) the party files an affidavit of indigence in compliance with 

the rule, (2) the indigence claim is either not contestable, is not contested, or, if 

contested, the contest is not sustained by written order, and (3) the party timely files 

a notice of appeal. See TEX. R. APP. P. 20.1(a)(2). 

Generally, the appellant must file the affidavit of indigence in the trial court 

“with or before the notice of appeal.” TEX. R. APP. P. 20.1(c)(1). The affidavit 

must identify the party filing the affidavit, state the amount of costs the party can 

pay, if any, and present complete information about the party’s financial condition. 

See TEX. R. APP. P. 20.1(b). 

The trial court clerk, court reporter, or any interested party may file a contest 

to the affidavit of indigence, but must do so within 10 days after the date the 

affidavit is filed. TEX. R. APP. P. 20.1(e). Within 10 days after a contest is filed, the 

trial court must either conduct a hearing or sign an order extending the time for the 

hearing no more than 20 days from the date of the order. TEX. R. APP. P. 20.1(i)(2). 

 2 Rule 20.1(n) defines “costs” as the filing fee and the charges for preparing the 

appellate record. TEX. R. APP. P. 20.1(n).
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At the hearing on the contest, the appellant bears the burden to prove his 

indigence by a preponderance of the evidence. Higgins v. Randall Cnty. Sheriff’s 

Office, 257 S.W.3d 684, 686 (Tex. 2008); see TEX. R. APP. P. 20.1(g); Arevalo v. 

Millan, 983 S.W.2d 803, 804 (Tex. App.—Houston [1st Dist.] 1998, no pet.). If the 

party seeking to be declared indigent is incarcerated at the time of the hearing, the 

affidavit must be considered as evidence and is sufficient to meet the indigent 

party’s burden to present evidence without the party attending the hearing. TEX. R.

APP. P. 20.1(g)(1). The party contesting the affidavit then has the burden to offer 

evidence to rebut what was established. See Griffin Indus., Inc. v. Hon. Thirteenth 

Court of Appeals, 934 S.W.2d 349, 352 (Tex. 1996). “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?’” In re C.H.C., 331 S.W.3d 426, 429 (Tex. 2011) (citing Higgins, 257 S.W.3d 

at 686). 

Unless, within the period set for the hearing, the trial court signs an order 

sustaining the contest, the affidavit’s allegations will be deemed true and the party 

will be allowed to proceed without advance payment of costs. TEX. R. APP. P.

20.1(i)(4); see C.H.C., 331 S.W.3d at 429; Higgins, 257 S.W.3d at 688. When the 
6

trial court sustains the contest to the appellant’s affidavit, the appellant may obtain 

the record pertaining to the trial court’s ruling and may challenge that ruling as part 

of his appeal. See Arroyo, 988 S.W.2d at 738–39. 

We review the trial court’s order under an abuse of discretion standard. 

White v. Bayless, 40 S.W.3d 574, 576 (Tex. App.—San Antonio 2001, pet. denied). 

The trial court abuses its discretion if it acts without reference to any guiding rules 

or principles or in an arbitrary or unreasonable manner. Id. Rule 20.1 is to be 

interpreted “liberally in favor of preserving appellate rights.” See Higgins, 257 

S.W.3d at 686. 

Background

On December 1, 2009, appellant claimed through a bare statement in his 

notice of appeal that he was indigent. The trial court notified appellant that he had 

failed to comply with Rule 20.1 and gave him an opportunity to cure the defect. 

The trial court appended forms to its notice; directed appellant to complete the 

forms and to “disclose the real estate that he owns”; admonished that the “fact that 

he owns real estate may be evidence against [appellant’s] claim of indigence”; and 

instructed that appellant “show why he should not be required to use his real estate 

to pay for the fees on this appeal.” See id. (stating that “the applicant must declare 

to the court, by affidavit, an inability to pay any, or the ability to pay only some, of 
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the costs of appeal,” citing TEX. R. APP. P. 20.1). Because appellant was 

incarcerated at the time,3 the trial court notified appellant that a hearing would be 

held on December 17, 2009, at which appellant could appear by his affidavit. See

TEX. R. APP. P 20.1(g)(1).

Although the trial court gave appellant an opportunity to file an affidavit in 

accordance with Rule 20.1, nothing in the record before us reflects that appellant 

complied. Nevertheless, contests were filed by the district clerk and court reporter. 

In addition, appellees filed written objections, to which they appended 

documentation of appellant’s real estate holdings. On December 17, 2009, after a 

hearing, the trial court sustained the court reporter’s contest. Appellant did not 

challenge the order sustaining the contest. 

In May 2010, this Court notified appellant that his affidavit of indigence was 

deficient and that his appeal was subject to dismissal if he did not remedy the defect 

within 20 days. See TEX. R. APP. P 20.1(c)(3) (providing that appellate court may 

not dismiss appeal or affirm trial court’s judgment on ground that appellant has 

failed to file affidavit or sufficient affidavit without first providing appellant notice 

of deficiency and chance to cure).

Appellant then filed in this Court an affidavit of indigence in accordance with 

Rule 20.1, which this Court sent to the trial court. See TEX. R. APP. P. 20.1(b), 

 3 Appellant was released on parole on November 4, 2011. 
8

(c)(1), & cmt. The district clerk and court reporter each timely contested the 

affidavit. Appellees filed objections to the affidavit. On August 15, 2011, after a 

hearing, the trial court signed an order sustaining the court reporter’s contest. 

Appellant challenges the trial court’s order.

Analysis

Appellant has paid the filing fee for the appeal. We consider appellant’s 

challenge with respect to obtaining a free record for appeal. 

To obtain a free record for appeal, appellant must have complied with the

statutory requirements set out in Civil Practice and Remedies Code section 13.003. 

See TEX. CIV. PRAC. & REM. CODE ANN. § 13.003. Section 13.003 expressly 

provides that a court reporter or clerk shall provide a record without cost “only if”: 

(1) an affidavit of inability to pay the cost of the appeal has been filed under the 

Texas Rules of Appellate Procedure; and (2) the trial court finds: (A) the appeal is 

not frivolous; and (B) the statement of facts and the clerk’s transcript is needed to 

decide the issue presented by the appeal. TEX. CIV. PRAC. & REM. CODE ANN.

§ 13.003(a). 

The record before us does not reflect any findings as required by section 

13.003(a)(2). See id. In addition, the record does not reflect any request for such 

findings by appellant or any objection or complaint to the trial court regarding the 
9

absence of such findings. Furthermore, appellant has not raised the absence of such 

findings as error in this Court. By failing to request or obtain the findings required 

by section 13.003, appellant has failed to meet the statutory requirements for 

receiving a free record and has failed to preserve any error upon which we could 

reverse the trial court’s order. See id.; TEX. R. APP. P. 33.1; Schlapper v. Forest, 

272 S.W.3d 676, 678 (Tex. App.—Austin 2008, pet. denied) (concluding that 

appellant had failed to preserve any issue for review by failing to obtain or request 

the findings required by section 13.003); Rhodes v. Honda, 246 S.W.3d 353, 356 

n.4 (Tex. App.—Texarkana 2008, no pet.) (noting that it would be error to reverse 

trial court and allow appellant to obtain free record without required statutory 

findings).

Even if we were to consider appellant’s challenge in the absence of the 

required statutory findings, the trial court’s order must be upheld.

By his affidavit, appellant declared that he is incarcerated and has no income. 

Appellant claimed he has no assets, as follows: 

I legally conveyed all my personal and combined property interests to 

Powerhouse Ministry Church in 2005, and I do not own any real 

estate. Appellees have contacted [the] Appraisal District to claim that 

I own property, but I don’t, since 2005, in Harris County Deed No. 

Y974461 transferring all real estate and property interest out of my 

ownership.
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In addition, appellant declared that he has “no other assets”; is not married and 

therefore has no spousal income available to him; has no dependants; has no “cash 

on deposit that [he] can withdraw”; has no monthly expenses; owes $6,000 in 

student loans and $400 in court fees; is unable to obtain a loan due to his 

incarceration; has no attorney assistance; and that he does not have the skills or 

access to equipment to prepare an appendix, as required by Rule 38.5. 

Appellant addressed the factors required by Rule 20.1(b). See TEX. R. APP. P. 

20.1(b). Because appellant was incarcerated at the time of the hearing on the 

contest, his affidavit must be considered as evidence and was sufficient to meet his 

burden to present evidence without attending the hearing. TEX. R. APP. P.

20.1(g)(1). 

The court reporter then had the burden to offer evidence to rebut what was 

established. See Griffin Indus., Inc., 934 S.W.2d at 352. At the hearing on the 

contest, evidence was admitted that appellant had failed to disclose certain real 

property in his affidavit.

4

 By his affidavit, appellant claims to have transferred all 

of his property interests to “Powerhouse Ministry/Church.” The trial court admitted 

 4 The record shows that the court reporter joined in the arguments and offer of 

evidence by the district clerk and appellees. At the hearing, it was also asserted 

that appellant had failed to file a certified statement of his inmate trust account, 

pursuant to Civil Practice and Remedies Code sections 14.004 and 14.006. See

TEX. CIV. PRAC. & REM. CODE ANN. § 14.004(c) (West Supp. 2011), 14.006(f)

(West 2002). This case is not governed by Chapter 14. See supra note 2. 
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a copy of a deed and documentation from the Fort Bend County Appraisal District

reflecting that appellant had owned real property that he purportedly conveyed to 

Powerhouse.

5

 Appellees argued that the conveyance was a sham. The trial court 

admitted evidence of the business organization of Powerhouse; that appellant 

identifies himself as the “Founder/Owner” of Powerhouse; and that appellant serves 

as its minister, director, CEO, and president and governs its financial matters. 

On this evidence, the trial court could have concluded that appellant had 

failed to properly disclose his assets or his financial means. As the fact-finder, the 

trial court is the sole judge of the credibility of the witnesses and evidence. See 

Prince v. Am. Bank of Tex., 359 S.W.3d 380, 382 (Tex. App.—Dallas 2012, no pet.)

(concluding that trial court may choose to believe evidence presented at hearing on 

contest). There is no abuse of discretion if some evidence supports the trial court’s

decision. In re Barber, 982 S.W.2d 364, 366 (Tex. 1998). We may not reverse the 

trial court’s decision simply because we might have reached a different result. See

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). 

 5 In the judgment being appealed, the trial court declared “Feldon Bonner II, d/b/a 

Powerhouse Ministry/Church” to be the owner of 1.14 acres of the C.J. Bonnette 

tract, Harris County, and of the house and lots located at 6828 Knox Street, Harris 

County. As appellees asserted at the hearing on the contest, appellant did not 

disclose this property in his affidavit of indigence. Because this property is listed 

in the trial court’s judgment being appealed and is therefore, in part, the subject of 

this suit, we do not include it in our analysis. We need not resolve whether this 

property should have been listed in the affidavit because appellees offered evidence 

of other property that was not listed in appellant’s affidavit and that is not the 

subject of this suit. 
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By sustaining the contest to appellant’s affidavit of indigence, we cannot 

conclude that the trial court acted without reference to any guiding rules or 

principles; that the facts and law permit only one decision, which is the opposite of 

the trial court’s decision; or that the trial court’s ruling is so arbitrary and 

unreasonable as to be clearly wrong. See Arevalo, 983 S.W.2d at 804. Therefore, 

we cannot conclude that the trial court abused its discretion. See id. 

Accordingly, we affirm the trial court’s August 15, 2011 order. 

Appellant has paid the filing fees. Because appellant has not established 

indigence, it is ORDERED that appellant file with this court no later than 30 days

from the date of this order, proof that he has paid, or has made arrangements to pay, 

the fees for preparing the clerk’s record and, if any, the reporter’s record. See TEX.

R. APP. P. 34.5, 34.6(b), 37.3.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Jennings and Higley.