Rule 145(f) Burden to Prove Inability to Afford Costs | Flores v. Flores (2026)

Flores v. Flores, 04-25-00706-CV, June 03, 2026.

On appeal from 288th Judicial District Court, Bexar County, Texas

Synopsis

Texas Rule of Civil Procedure 145(f) does permit a trial court to require payment of appellate costs after an evidentiary hearing when the declarant fails to prove inability to afford costs. In Flores v. Flores, the Fourth Court of Appeals held that the burden remained on the appellant to prove indigency, and his failure to appear—combined with record evidence of income, earning capacity, and property interests—supported the trial court’s detailed findings sustaining the contest.

Relevance to Family Law

This opinion matters in family law because inability-to-afford-costs issues routinely arise in divorce, enforcement, SAPCR, and post-judgment appellate practice, especially where one party claims financial distress after fee awards, support obligations, or property division. Flores shows that family-law findings already in the record—net resources, business ownership, vehicle purchases, and real-property interests—can become powerful evidence against a Rule 145 indigency claim, and that a litigant who does not appear to carry the burden at the evidentiary hearing is in a particularly poor position to challenge an adverse ruling on appeal.

Case Summary

Fact Summary

Edward Flores filed a premature notice of appeal from a post-divorce enforcement order, and the appellate court later confirmed that the supplemental clerk’s record contained the signed enforcement order, giving the court apparent jurisdiction over the appeal. The immediate procedural problem, however, was not merits briefing—it was costs. Flores had not paid the appellate filing fee, and the appellate record reflected that he had previously filed a statement of inability to afford payment of court costs or an appeal bond in the trial court.

When the reporter’s record became overdue, the court reporter notified the court that Flores was not entitled to proceed without paying the reporter’s fee and had not paid or made arrangements to pay it. The Fourth Court treated that filing as a contest to Flores’s statement of inability and abated the appeal for a Rule 145(f) hearing in the trial court.

The trial court conducted the required oral evidentiary hearing on January 27, 2026. Flores did not appear. After receiving evidence, the trial court signed a January 28 order finding that Flores had the ability to afford court costs and appellate costs. The findings were detailed and drew heavily from the existing divorce record and evidence of assets and earning capacity. Among other things, the court found that Flores was not represented by legal aid, did not receive indigency-based public benefits, had not proven any legal dependents, had no proof of current income in his statement or at the hearing, had a net monthly income of $4,201.60 as found in the divorce decree, owned and operated a home remodeling company, had the ability to earn at least that amount monthly, had ownership interests in two parcels of real property, possibly retained an interest in or control over additional transferred property, and had purchased a 2024 Ford Expedition valued at $80,000 during the litigation.

Flores later asked the appellate court to review the order sustaining the contest. In his motion, he asserted that he had not been employed since February 2023 and was receiving SNAP and Medicaid benefits. But those assertions were not supported by the hearing record, and neither side filed merits briefing on the indigency issue after the court invited it.

Issues Decided

• Whether Texas Rule of Civil Procedure 145(f) permits a trial court to require payment of appellate costs after an oral evidentiary hearing where the declarant fails to prove inability to afford costs.
• Whether a litigant’s failure to appear at the Rule 145(f) hearing, coupled with evidence of income, earning capacity, and property interests, supports sustaining a contest to indigency.
• Whether the trial court abused its discretion in finding that Flores could afford costs of court and costs of appeal.

Rules Applied

Texas Rule of Civil Procedure 145(b) requires a party seeking to avoid payment of court costs to file the approved Statement of Inability to Afford Payment of Court Costs or another sworn document containing the same information. Rule 145(e) permits the district clerk, a court reporter, or an opposing party to challenge the claim of indigency.

Rule 145(f) controlled the core dispute. Under that rule, a declarant may not be ordered to pay costs unless the trial court holds an oral evidentiary hearing, gives at least ten days’ notice, and makes detailed findings that the declarant can afford to pay costs. The opinion also emphasizes the key burden allocation in Rule 145(f)(1): at the hearing, the burden is on the declarant to prove inability to afford costs.

The court relied on Basaldua v. Hadden, 298 S.W.3d 238, 241 (Tex. App.—San Antonio 2009, order), for the governing indigency test in the trial court: whether the record as a whole shows by a preponderance of the evidence that the applicant would be unable to pay the costs, or a part of them, or give security therefor, if he really wanted to and made a good-faith effort to do so.

For the standard of review, the court cited Rodriguez v. H-E-B, No. 04-19-00795-CV, 2020 WL 354766, at 2 (Tex. App.—San Antonio Jan. 22, 2020, order), and In re J.P.N., No. 04-17-00633-CV, 2018 WL 626526, at 1 (Tex. App.—San Antonio Jan. 31, 2018, order), confirming that appellate review of a trial court’s ruling on inability to pay costs is for abuse of discretion.

The opinion also referenced Texas Rule of Appellate Procedure 20.1 concerning inability to afford costs in appellate proceedings, and Rules of Appellate Procedure 5, 37.3(c), and 42.3 regarding filing fees, absent reporter’s records, and potential dismissal consequences.

Application

The Fourth Court’s analysis was straightforward and procedural, but strategically important. Once the court reporter contested Flores’s claimed inability to pay, Rule 145(f) required an oral evidentiary hearing with notice and detailed findings before costs could be imposed. That process occurred. The appellate court then focused on what happened—or more precisely, what did not happen—at the hearing.

Flores did not appear. That mattered because Rule 145(f)(1) places the burden on the declarant, not the contestant. The trial court was not required to assume inability from the filed statement alone. Instead, the declarant had to prove inability to afford costs by evidence. In Flores’s absence, the trial court heard evidence undermining the claim of indigency, including prior judicial findings about his net monthly income, evidence that he owned and operated a home remodeling company, evidence of his ability to earn at least $4,201.60 per month, evidence of ownership interests in multiple parcels of real property, and evidence that he had purchased an $80,000 vehicle during the litigation.

The court also noted the trial court’s findings regarding supposed dependents. Flores had declared his mother as a legal dependent without proof, and he had listed the child of the marriage as a legal dependent even though the divorce decree awarded the right to claim the child to the mother. Those findings mattered because claimed dependents often figure prominently in inability analyses. Here, the trial court resolved those issues against Flores.

On review, the appellate court looked only to the record before it. Flores’s post-hearing assertions that he was unemployed and receiving SNAP and Medicaid were unsupported by the record. That is a recurring appellate lesson: a Rule 145 review is not won by unsworn or extra-record assertions in a motion. Because the hearing record supported the trial court’s detailed findings, the Fourth Court held that the ruling fell within the zone of reasonable discretion.

Holding

The court held that under Texas Rule of Civil Procedure 145(f), the declarant bears the burden at the oral evidentiary hearing to prove inability to afford court costs and appellate costs. A filed statement of inability does not shift that burden to the contestant once a proper challenge is made.

The court further held that the trial court did not abuse its discretion in sustaining the contest to Flores’s claim of indigency. The hearing record supported detailed findings that Flores had income, earning capacity, and property interests inconsistent with his claim that he could not afford costs.

The court also effectively held that nonappearance at the Rule 145(f) hearing is highly consequential. Where the declarant fails to appear and the record contains evidence supporting an ability to pay, the trial court may sustain the contest and require payment of filing fees and reporter’s fees.

Practical Application

For Texas family-law litigators, Flores is less about abstract indigency doctrine and more about litigation discipline. In post-divorce enforcement appeals, contempt-adjacent proceedings, SAPCR modifications, and fee-heavy property disputes, a party’s trial-level financial record rarely disappears at the appellate stage. If your opponent has testified to business ownership, earning capacity, access to assets, or recent discretionary spending, expect those facts to reappear at a Rule 145 hearing.

The case is particularly useful where the declarant’s sworn inability statement is thin, inconsistent with prior family-law rulings, or contradicted by decree findings, child-support evidence, inventory and appraisement materials, deed records, loan applications, tax returns, or vehicle purchases. The opinion confirms that trial courts may lean on the broader record, not just the four corners of the statement, so long as the Rule 145(f) hearing is held and detailed findings are made.

For counsel representing the declarant, the lesson is blunt: show up, bring documents, and clean up inconsistencies before the hearing. If the client has had changed circumstances since the decree or prior temporary-orders findings, those changes must be proved with admissible evidence. A family-law record often contains stale or context-specific income findings. But unless the declarant affirmatively develops a contrary record at the Rule 145 hearing, those earlier findings may remain the best evidence before the court.

For counsel contesting indigency, Flores provides a roadmap. Use the divorce record aggressively. Prior findings on net resources, business control, title to property, beneficial interests, trust transfers, and recent purchases can be assembled into a coherent narrative that the declarant has not made a good-faith showing of inability. In family-law litigation, where financial transparency is often contested, Rule 145 can become an important pressure point in appellate strategy.

Checklists

Checklist for Counsel Representing the Declarant

• Confirm that the Rule 145 statement is complete, sworn, and internally consistent.
• Review the entire family-law record for prior findings on net resources, business ownership, real property, vehicles, and discretionary spending.
• Identify any inconsistencies between the statement of inability and prior testimony, inventories, discovery responses, loan documents, or decree findings.
• Prepare the client to appear at the oral evidentiary hearing without fail.
• Bring documentary proof of current income, unemployment, public benefits, bank balances, debts, monthly expenses, and inability to borrow or liquidate assets.
• If circumstances changed after the decree or temporary orders, present competent evidence of that change.
• Prove claimed legal dependents with specificity rather than assumption.
• Address asset ownership issues directly, including equitable interests, trust transfers, beneficial control, and encumbrances.
• Make a clean record if the court excludes evidence or limits testimony.
• If review is sought in the court of appeals, tie every factual assertion to the record.

Checklist for Counsel Contesting Indigency

• File or prompt a proper Rule 145 contest through an authorized challenger.
• Ensure the hearing is set with at least ten days’ notice.
• Gather prior family-law findings regarding income, earning capacity, and net resources.
• Pull deed records, business records, assumed-name filings, corporate records, and trust-transfer documents.
• Assemble evidence of vehicle ownership, recent purchases, and other discretionary expenditures.
• Test claimed dependents against the decree, support orders, and tax-allocation provisions.
• Compare the inability statement against sworn inventories, interrogatory answers, and prior hearing testimony.
• Ask the court to make detailed written findings on income, earning capacity, assets, dependents, public benefits, and credibility.
• Emphasize that the burden remains on the declarant under Rule 145(f)(1).
• Preserve the reporter’s record of the indigency hearing.

Checklist for Trial and Appellate Preservation in Family Cases

• Treat inability-to-pay disputes as evidentiary hearings, not motion practice.
• Request that the hearing be recorded.
• Offer exhibits formally and obtain rulings.
• Ask the court to specify whether it is finding actual income, earning capacity, asset liquidity, or both.
• If relying on decree findings, identify the exact portions of the decree or related orders.
• If property interests are disputed, clarify whether the issue is title, possession, control, or beneficial ownership.
• After the ruling, review the written order to confirm it contains detailed findings required by Rule 145(f).
• Calendar all deadlines for filing fees, reporter’s fee arrangements, and any appellate motion for review.
• Advise the client immediately about dismissal and limited-record risks if costs are not paid.
• In appellate briefing, avoid factual assertions that are not supported by the clerk’s or reporter’s record.

Citation

Flores v. Flores, No. 04-25-00706-CV, 2026 WL ___ (Tex. App.—San Antonio June 3, 2026, mem. op.).

Full Opinion

Read the full opinion here

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