Court of Appeals of Texas,

Houston (1st Dist.).

Lizzie J. LOVALL, Relator,

v.

The Honorable Richard BIANCHI, Presiding Judge of the 333rd District Court of Harris County, and the Honorable Katherine Tyra, Districk Clerk of Harris County, Respondents.

No. 01-93-00611-CV.

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February 3, 1994.

ANDELL, Justice.

OPINION

*1 On July 8, 1993, relator Lizzie J. Lovall filed a motion for leave to file a petition for writ of mandamus, complaining of the actions of the district clerk in contesting her affidavit of inability to pay the costs of appealing from a final judgment in cause number 91-04987-A in the 333rd district court of Harris County, and of the actions of the Honorable Richard Bianchi, the presiding judge of that court, in sustaining the district clerk’s contest. By our unpublished order entered September 21, 1993, we overruled relator’s motion with respect to the district clerk, and reserved decision on relator’s motion with respect to Judge Bianchi, pending the filing of a statement of facts from the contest hearing.¹ After reviewing that statement of facts, we now overrule relator’s motion with respect to Judge Bianchi.

Lovall had the burden of proof at the hearing of the contest of her pauper’s affidavit. TEX. R. APP. P. 40(a)(3)(D). Lovall was the only witness at the June 2, 1993, contest hearing. She testified as follows.

Lovall had income from unemployment insurance, in the amount of $962 per month, for 11 months, ending on May 28, 1993, and had had no income since then. Her rented housing cost $500 per month, and her total expenses during the 11 months exceeded $962 per month. She owned a 1983 Mercury automobile, which was inoperable at the time of the hearing. She had a 20-year old son, disabled by ulcers, who lived with her, and whom she supported. He got his medical care for free at a clinic. Her other children were all older, and there was no testimony that any of them were financially dependent upon her.

Lovall was a licensed vocational nurse, but had not worked as a nurse since May 1991. She was unable to work as a medical surgical nurse, her former occupation, because she was no longer able to do the lifting involved. At the time of the June 2, 1993, hearing, Lovall had graduated from paralegal school and was looking for a paralegal job. She also testified that she had been a licensed real estate broker until March 31, 1993, but she hadn’t sought that kind of work recently. She explained that she had let her license go because she couldn’t pay the $500 fee, and because she moved to a home where deed restrictions prohibited her from conducting that type of business.

Unemployment and workers’ compensation benefits are not based on indigency. See TEX. REV. CIV. STAT. ANN. art. 5221b-2 (Vernon Supp. 1993) (unemployment); TEX. LABOR CODE ANN. §§ 406.031–406.035 (Vernon Pamph. 1994) (workers’ compensation). In addition, Lovall had testified-in this same case, at a January 8, 1993, hearing on a prior pauper’s affidavit²-that, other than workers compensation and unemployment, she was not receiving any other benefits. This case is therefore distinct from cases like Lewelling v. Lewelling, 774 S.W.2d 801, 805 (Tex. App.-El Paso 1989), rev’d on other grounds, 796 S.W.2d 164 (Tex. 1990), where the court held, based on uncontradicted evidence that appellant’s only income was from aid to families with dependent children, that appellant was, as a matter of law, indigent, and therefore entitled to prosecute her appeal without paying costs or giving security. The other evidence Lovall presented, however, if believed, was sufficient to establish that she was unable to pay the cost of appeal.

*2 Lovall consistently answered a significant number of questions in a manner which could fairly be characterized as evasive. In addition, she claimed not to remember any of the following, when asked: (1) how many other suits she had testified she had pending as of the January 8, 1993, hearing on a prior pauper’s affidavit in this same case, even after she was shown the statement of facts from that hearing; (2) how many other times she had been found to be unable to pay costs of a suit, (3) how many audio tapes she owned, (4) whether her name was on a deed or mortgage, (5) whether she had ever been found mentally incompetent, (6) whether she had been indicted in January of 1986 for aggravated assault on a peace officer, (7) whether she had been placed on probation in the past, (8) whether she was presently serving a probated sentence, (9) the identity of the potential employer with whom she said she spoke face-to-face in May 1993, or the address at which that meeting took place, (10) the relief she was seeking in a pending workers’ compensation suit, (11) all of the “quite a few” other names by which she was known, and (12) whether, in the last 10 years, she had been convicted of a felony or misdemeanor involving moral turpitude.

The trial court is the trier of fact in connection with a contest to a pauper’s affidavit. See Cronen v. Smith, 812 S.W.2d 69, 72, 71 (Tex. App.-Houston [1st Dist.] 1991, orig. proceeding) (held, trial court properly resolved conflicting evidence regarding relator’s willingness to get a job, found that relator’s unemployment was not voluntary, and sustained contest to pauper’s affidavit). As trier of fact, the court is entitled to judge the credibility of the witnesses. Hudson v. Winn, 859 S.W.2d 504, 508 (Tex. App.-Houston [1st Dist.] 1993, writ requested). Here, the court was entitled to disbelieve Lovall’s claims that she did not remember whether she had experienced events like a felony conviction or an adjudication of mental incompetency, which typically effect some degree of significant and lasting change in a person’s life. In turn, the court was entitled to disbelieve Lovall’s other claims that she did not remember, and to conclude that, by claiming lack of recollection, Lovall was trying to avoid answering questions legitimately bearing on the issue of her alleged indigence, because the answers to those questions would be unfavorable to her. In that light, the court could conclude that Lovall’s uncontroverted testimony about her income, expenses, and ability to work-which comprised by far the bulk of the evidence of her alleged indigence-was unworthy of belief, and that Lovall had failed to meet her burden of proving that she was unable to pay the costs of appeal.

Judge Bianchi did not abuse his discretion by sustaining the district clerk’s contest to relator’s affidavit.

Relator’s motion for leave to file is overruled. Pursuant to our order entered September 21, 1993, the statement of facts was prepared and filed with this Court, at no cost to relator. Following our disposition of relator’s motion for leave to file, liability for and collection of the cost of preparing and filing that statement of facts shall be at the discretion of the trial court, as guided by the Texas Rules of Civil Procedure or other applicable law, in the underlying suit, its cause number 91-04987-A.

	Footnotes
1		Relator contended that the district clerk abused her discretion by filing the contest in the first place. A statement of facts from the hearing on the contest was not necessary to this Court’s review of relator’s claim that the district clerk abused her discretion in filing the contest. Because authorization to proceed with an appeal from a district court judgment in forma pauperis relieves an appellant of, inter alia, the duty to pay costs incurred by the district clerk’s office in preparing the transcript on appeal, the district clerk is an “interested officer of the court” authorized, under TEX. R. APP. P. 40(a)(3)(C), to contest an affidavit of inability to pay costs of an appeal. The express terms of TEX. R. APP. P. 40(a)(3)(C) place no limits upon the right of a proper party to file a contest to a pauper’s affidavit, other than the requirement that it be filed within 10 days after notice to that party under TEX. R. APP. P. 40(a)(3)(B). That latter requirement is not at issue in this proceeding, where relator expressly stated in her sworn petition for writ of mandamus that, “The timeliness of the filing of the … contest is undisputed.”
2		An excerpt from the statement of facts from the prior hearing was introduced into evidence at the June 2, 1993, contest hearing, without objection from Lovall.