NO. 07-10-00205-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A AUGUST 15, 2011

HAROLD F. EGGERS, JR., APPELLANT

v. JOHN TOWNES VAN ZANDT, II, WILLIAM VINCENT VAN

ZANDT, K. B. V. Z., A MINOR BY AND THROUGH HER NEXT FRIEND JEANENE VA N ZANDT, JEANENE VAN ZANDT, AND TVZ RECORDS, LLC, APPELLEES

FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY; NO. D-1GN-06-01169; HONORABLE GI SELA D. TRIANA-DOYAL, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION Appellant Harold F. Eggers, Jr. s ought to proceed on appeal without advance payment of costs by filing an a ffidavit of indigence. Appellees 1 contested the affidavit

1 Eggers’ affidavit of i ndigence was challenged by th e court reporter, LaDelle Abilez, the plaintiffs in t he underlying litigation John Townes Van Zandt, II, William Vincent Van Zandt, Katie Belle Van Zand t, a minor, by and through her next friend Jeanene Van Zandt, Jeanene Van Zandt, and th ird-party defendant TV Z Records, LLC. Throughout this opinion the cont estants of Eggers’ affidavit of indigence are collectively identified as “appellees” and the plaintiffs in the underlying litigation are collectively identified as “the Van Zandts.”2 and the trial court sustained the contest. On Eggers’ appeal, we find the trial court did not abuse its discretion by sustaining the contest, and will affirm its order.
Background
The Van Zandts sued Eggers for declaratory relief and damages on claims arising from the ownership of rights to s ound recordings of the late musician, John Townes Van Zandt. The case was tried to a jury which found in favor of the Van Zandts. The court signed a money judgment on December 15, 2009. 2 Following the completion of trial but befor e judgment, Eggers filed for re lief under Chapter 13 of the United States Bankruptcy Code. 3 His Chapter 13 plan was confirmed by order of the bankruptcy court.
Meanwhile, Eggers filed a notice of appea l of the December 2009 judgment in the underlying case. He qualified for pro bono appellate representat ion by a volunteer attorney through a program of t he Appellate Law Section of t he State Bar of Texas. At the hearing on appellees ’ contest, Eggers testified the estimated total cost of the reporter’s record and the clerk’s record is $8,500. Egger’s pro bono counsel testified neither he nor his firm agreed to advance or pay Eggers’ costs on appeal. The trial court sustained the contest and Eggers chal lenges the order through this separate

2 The Van Zandts’ suit against Eggers bor e trial court cause number D-1-GN-06- 00169 in the 345th District Court of Travis County. In this court, its appeal carries appellate case number 07-10-0109-CV.

3 11 U.S.C. § 1301, et seq

.3 appeal. For this appeal, we ordered preparat ion of a record limit ed to the indigence proceedings. 4 Findings of fact and conclusions of law were not requested or filed. 5
Analysis
Eggers presents one issue through which he argues the trial court abused its discretion in sustaining appellees’ contest. In support, he specifically contends his evidence of entitlement to veterans’ disability benefit s was prima facie proof of indigence which went unrebutted; his affi davit and hearing evidence established indigence; and his qualificat ion for pro bono representat ion through the volunteer attorney program established in digence “as a matter of law.”
On appeal of an order sustaining a challenge to an affidavit of indigence, we review the trial court’s ruling unde r the abuse of discretion standard. White v. Bayless, 40 S.W.3d 574, 576 (Tex.App.--San Antonio 2001, pet. denied). A trial court abuses its discretion if it acts without reference to any guiding rules or principles; in other words, we must decide whether the decision of the tr ial court was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

4 An appellate court may on its own initiative apply Ru les of Appell ate Procedure 34.5(c)(1) and 34.6(d) to obt ain preparation by the cler k and court reporter of the portions of record necessary to revi ew an order denying indigence status. In re Arroyo, 988 S.W.2d 737, 739 (Tex. 1998) (orig. proceeding); Kastner v. Texas Board of Law Examiners, No. 03-08-00515-CV, 2009 Tex. App. Lexis 6381, at *3 n.5 (Tex.App.-- Austin August 12, 2009, no pet.) (mem. op.) (citing In re Arroyo ); Tex. R. App. P. 34.5, 34.6.
5 The present appeal and the underlying case were transferred to this court from the Third Court of Appeals by docket equalization order of t he Supreme Court of Texas. See Tex. Gov’t Code Ann. § 73.001 (West 2005).4 “A party who cannot pay the costs in an appellate court may proceed without advance payment of costs if t he party files an affidavit of indigence in compliance with [Rule of Appellate Procedure 20.1]; the claim of indigence is not contestable, is not contested, or, if contested, the contest is not sustained by written order; and the party timely files a notice of appeal.” Tex. R. App. P. 20.1(2). When a contest is filed, it is the burden of the party filing an affidavit of indi gence to prove the affidavit’s allegations. Tex. R. App. P. 20.1(g). “T he 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 gi ve security therefor, if he really wanted to and made a good-faith effort to do so?” Higgins v. Randall Co unty Sheriff’s Office, 257 S.W.3d 684, 686 (Tex. 2008) (internal quotation marks omitted, citing Pinchback v. Hockless, 139 Tex. 536, 539, 164 S.W. 2d 19, 20 (Tex. 1942)).
Receipt of Veterans ’ Disability Payments
Eggers testified he is a military veter an and has received veterans’ disability benefits since 1972. His initial 10 perc ent permanent disability rating was later increased to 50 percent. According to Eggers, he receives disability benefits for anxiety and a retention disorder. He added that his retention capacity is “almost gone.”
Rule of Civil Procedure 145, governing affida vits of indigency in the trial courts, defines a “party who is unable to afford costs” as “a person who is presently receiving a governmental entitlement based on indigency or any other person who has no ability to pay costs.” Tex. R. Civ. P. 145. In cases under former Rule 40 of the Rules of Appellate Procedure, courts also f ound that indigence was demons trated by a showing of5 dependence on public assistance. See Griffin Indus. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex. 1996). “The fact t hat any individual is dependent upon the charity of the public afforded through the various welfare pr ograms is, by itself, prima facie evidence that the person is financially unable to pay the court costs or give security therefor.” Id. (quoting Goffney v. Lowry, 554 S.W.2d 157, 159-60 (Tex. 1977)).
Recently, the Supreme Court of Texas ha s pointed out that the current appellate procedure rule on indigency in civil cases, Rule 20.1, “ does not contain the broad definition found in Ci vil Rule 145.” In re C.H.C., 331 S.W.3d 426, 430 n.7 (Tex. 2011). The court went on to state that the case before it did not require a determination “whether the standar d mentioned in Griffin and present in Civil Rule 145 also applies to our new Appellate Rule 20.1.” Id

. A claim for veterans’ disability benefits r equires establishment of five elements: (1) veteran status; (2) existence of a disabili ty; (3) service connection of the disability; (4) degree of disability; and (5) effective date of the disability. Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); see 38 U.S.C.A. § 1110 (West 2002) (setting forth the basic requirements for compensation for a disabili ty resulting from acti ve military service during a period of war); 38 U.S.C.A. § 1131 (West 2002) (s etting forth the basic requirements for a disability resulting from active military service during other than a period of war). The veteran must have been “discharged or released under conditions other than dishonorable.” 38 U.S.C.A. § 1110; 38 U.S.C.A. § 1131.
For demonstrating indigence based on receipt of public assistance or charity, we find a material distinction between dependence on a public charity and dependence on6 disability benefits. Receipt of need-based public assistance means the party asserting indigence on appeal has met the qualifying standard of a government agency or program for receipt of need-based benefits. Cf. Tex. R. App. P. 20.1(a)(1) (affidavit of party meeting rule’s criteria, includ ing screening and rescreening by designated programs, may not be contest ed). Civil Rule 145 speaks of “governmental entitlement based on indigency.” Tex. R. Civ . P. 145. Entitlement to ve terans’ disability benefits is not based on the applicant ’s indigency.
Assuming the standard previously noted in Griffin and Rule of Civil Procedure 145 also applies to Rule of Appellate Procedure 20.1, a questi on we also need not address, we conclude Eggers di d not make prima facie proof of indigence merely by proving his receipt of veterans’ disability benefits.
Proof of Indigence by Affi davit and Hearing Evidence
At the hearing on appellees’ contest, Egger s presented evidence of his financial condition. His veterans’ disability payment amounts to $770 per month. He also earns $150 per week straightening displays for an Au stin newspaper. For nine weeks during 2009, he did “computer work” for an individual. He was terminated from this position, however, as he was unable to perform the wo rk. Between the computer work and his newspaper position, Eggers ear ned $6,600 in 2009. At the c onclusion of the hearing, Eggers was permitted to address the court. In his narrative, among other things Eggers explained, “I’m in the music business. We work on spec.” He added that he makes “record deals” which require th ree years to complete.7 Eggers owns a condominium, free of encum brance, which he valued at $63,000. He testified this property was originally purchased with proceeds of a loan made by his parents and was at times titled to his parents or his sister to prevent him from selling or encumbrancing the dwelling. Eggers owns a 2003 Toyota Matrix automobile. The vehicle has been driven 130,000 m iles and requires repairs he said would cost in the “range of two thousand dollars .” He also expressed the opinions his assets 6 are “really not worth anything,” and any attempted sale would require approval of the bankruptcy court. Eggers testified his monthly income is $1,370.
Eggers’ affidavit listed m onthly expenses totaling some $1325. Additionally, Eggers’ monthly plan payment in bankruptcy is $201.88. At the time of the hearing, Eggers had not been ordered to make regularl y scheduled child support payments for his minor son nor did he voluntarily make such payments.
Eggers’ bankruptcy schedules were appended to his affi davit of indigence. There, he itemized his personal property and valued it collect ively at $33,556.17. He listed “accounts receivable” described as “[m]oni es owed by TVZ records” as a property item. He valued the receivables at $15,269. 7 Eggers listed a “50% interest in copyrights to Townes Van Zandt recordings[,] Townes Van Zandt CD documentary [, and] Richard Dobson CD--Mankind.” Accordi ng to the schedule, Eggers does not have

6 Apparently, excluding his condominium.

7 Also in a bankruptcy schedule, Eggers identified “Jeanene Van Zandt, et al” (sic) as creditors of a disputed $300,000 claim partially collateralized by monies ($15,269.17) owed him by TVZ Reco rds. According to the judgment in the main case, the trial court “made no determi nation concerning any offset or recoupment issues, and the Parties are free to seek disposition of these issues in [Eggers’] bankruptcy proceeding.”8 an appraisal of these assets but values them at $1,000. Eggers listed an interest in “Donovan/Eggers Music,” with the explanation “ no present income,” and an interest in a book valued at “$200/year for 10 years/$100 y ear for 20 years.” Eggers values these two assets at $2,000 apiece although he testif ied neither is “worth anything” and the book “had already had its day.”
There was no evidence Eggers attempted to raise cash from his personal property for payment of the reporter’s record. While the overarching fact that Eggers is a Chapter 13 debtor sounds generally synonymous with inso lvency, specific facts demonstrating how his Chapter 13 plan could stymie an effort to generate funds for payment of the record, either by asset liquida tion or obtaining credit, were not presented to the trial court. Along with Eggers’ testimony attributing little or no value to his business assets, the trial court also was faced with his bankruptcy schedules in which he swore to the values we have noted.
As appellees point out, Eggers owns a condominium and per sonal property he valued in excess of $33,000. Even with his Chapter 13 pl an payment, Eggers presents a positive monthly cash flow and offered no proof why some of his monthly expenses could not be further reduced. Cf. Morris v. Aguilar, No. 03-08-0078-CV, 2010 Tex. App. Lexis 5365, at *9-*11 (Tex.App.--Austin July 9, 2010, pet. filed) (questioning why appellant and her husband could not further r educe expenses, including some related to husband’s deafness, and hold ing trial court did not abuse it s discretion in denying free record on appeal even though appellant present ed a negative monthly cash flow).9 The trial court was the sole judge of the credibility of t he witnesses and the weight assigned their testimony. In re T.E.G., 222 S.W.3d 677, 679 (Tex.App.-- Eastland 2007, no pet.) (citing City of Keller v. Wilson, 168 S.W.3d 802, 821-28 (Tex. 2005)). There is no abuse of discretion if the trial court bases its decision on conflicting evidence and, as here, some ev idence supports its decision. In re Barber, 982 S.W.2d 364, 366 (Tex. 1998) (orig. proceeding). An d we may not reverse the trial court’s decision simply because we might have reached a different result. Downer, 701 S.W.2d at 242. We are unable to see an abuse of discret ion in the trial court’s evaluation of the evidence before it. Tex. R. App. P. 20.1(g); Higgins, 257 S.W.3d at 686.
Participation in Pro Bono Program Finally, Eggers asserts because he is repr esented by pro bono counsel as part of the State Bar of Texas Appellate Section’s pro bono program he is entitled to a free record as a matter of law. Eggers conc edes, however, this is not the law. He nevertheless asks that we extend the law so that he is accommodated.
The website of the Appellate Section indicates it sponsors a pro bono pilot program in the Third Court of Appeals. See http://www.tex-app.org/probono.php

. According to the Third Court of Appeals’ Pro Bono Pilot Program Pamphlet (09/01/07) (available at: http://www.tex-app .org/pamphlet), the program’s goal “is to match clients who are financially unable to obtain legal representation with volunteer lawyers who agree to serve without expectation of compens ation for their service.” A party with retained counsel in the trial court may qualify for the program if he can no longer afford an attorney. A “significant factor” in qualifying a program applicant is his ability to pay10 for legal services although the screening commi ttee considers such other factors as current program case volume, the number of avail able volunteer attorneys, and issues presented by the appeal. The screening co mmittee applies 175% of the poverty guidelines published by the United States Department of Health and Human Services as a benchmark for determining whether an applicant qualifies for free legal services. Of these facts concerning the pilot program, we ta ke judicial notice on our own initiative. See Tex. R. Evid. 201(b)(2), (c), (f) (at any stage of proc eeding, court in its discretion and on its own motion can take judicial notice of facts capable of accurate and ready determination by resort to sources whos e accuracy cannot reasonably be questioned).
Rule of Appellate Procedure 20.1 provides in part:
If the appellant proc eeded in the trial court wit hout advance payment of costs pursuant to a certificate under Te xas Rule of Civil Procedure 145(c) confirming that the appell ant was screened for eligibility to receive free legal services under income guide lines used by a program funded by Interest on Lawyers Trust Accounts or the Texas Access to Justice Foundation, an additional certificate ma y be filed in t he appellate court confirming that the appellant was re screened after rendition of the trial court's judgment and again found el igible under program guidelines. A party’s affidavit of inability accom panied by the certificate may not be contested. Tex. R. App. P. 20.1(a)(1). The record contains no i ndication Eggers proceeded in the trial court without advance pay ment of costs under a Rule of Civil Procedure 145(c) certificate. There is also no indication the program th rough which Eggers was matched with his appellate counsel is an Interest on Lawyers Trust Accounts program or Texas Access to Justice Foundation program. As is apparent, factors beyond poverty may favor an applicant’s acceptance by the pilot program. And we are not shown that the11 income guidelines applied by the pilot program mirror those of the programs Rule 20.1(a)(1) specifies. We conclude it is not possible to bring the pro bono appellate representation the pilot program is providing Eggers within t he ambit of Rule 20.1(a)(1). 8
In that regard, and especially considering that Eggers’ appeal originated in the Third Court of Appeals, we take note of that court’s opinion in Morris , 2010 Tex. App. Lexis 5365. While the effect of participation in the Third Court of Appeals’ pro bono pilot program was not at issue in Morris , the appellant there test ified that she and her husband qualified for the program; yet, the appellate court affirmed the trial court’s order sustaining the court reporter’s contest of the appellant’s affidav it of indigence. Morris, 2010 Tex. App. Lexis 5365, at *7, *11. While we commend counsel’s willingness to provide pro bono legal services for Eggers, and find the Appellate Section’s pilot pro bono pr ogram laudable, we are not authorized to stretch the bounds of Ru le 20.1(a)(1) to include it.
Finding none of Eggers’ appellate contenti ons persuasive, we overrule his sole issue on appeal.

8 Rule of Appellate Procedur e 2 authorizes us on motion or our own initiative to suspend a rule’s operation in a particular case and order a diffe rent procedure, “to expedite a decision or for other good cause.” Tex. R. App. P. 2. We will not invoke Rule 2 here.12 Conclusion

Because we find the trial court did not abuse its discretion in sustaining appellees’ contest of Eggers’ a ffidavit of indigence and Egger s is not otherwise entitled to a free record on appeal, we affi rm the trial court’s order.

James T. Campbell Justice