Rule 145 Indigency Contest Burden | Perricone v. Perricone (2026)

Perricone v. Perricone, 11-25-00213-CV, June 04, 2026.

On appeal from 29th District Court, Palo Pinto County, Texas

Synopsis

Once a Rule 145 contest is filed, the burden shifts squarely to the declarant to prove inability to afford costs by a preponderance of the evidence. In Perricone, the Eastland Court of Appeals affirmed denial of indigency status because the record supported the trial court’s findings of material misstatements, unsupported claims of means-tested benefits, and available income or assets, and because the contestant’s unsworn declaration substantially complied with Civil Practice and Remedies Code section 132.001.

Relevance to Family Law

For Texas family-law litigators, this case matters well beyond filing-fee disputes. In high-conflict divorce, SAPCR, modification, enforcement, and collateral tort litigation arising out of family cases, Rule 145 is often used offensively and defensively: offensively by a party seeking to file or appeal without advance costs, and defensively by the opposing side testing whether the indigency claim is accurate. Perricone confirms that courts will scrutinize the declarant’s credibility, omissions, household finances, and access to support from others, and it gives practitioners a useful roadmap for challenging deficient inability statements in family cases where a party is actively litigating multiple matters yet claiming inability to pay ordinary court costs.

Case Summary

Fact Summary

The appellant filed a multi-defendant civil suit tied to ongoing fallout from his divorce and child-custody litigation, along with a Rule 145 Statement of Inability to Afford Payment of Court Costs. After an initial clerk challenge failed for noncompliance, one of the defendants, an attorney sued by the appellant, filed a Rule 145(e) contest asserting that the inability statement contained material falsehoods and omissions.

The contest was supported by an unsworn declaration and attached documents aimed at undermining the appellant’s claimed indigency. Those materials included the appellant’s own inability statement, child-support payment information, the appellant’s prior bankruptcy petition, an unsworn declaration from the ex-spouse of the appellant’s current wife concerning child-support payments made into the household, and records indicating ownership of a mobile home not disclosed on the inability statement. The contestant also argued that the appellant had claimed receipt of means-tested public benefits without attaching supporting proof, had understated disability income, and had assigned a zero value to a Tesla despite evidence of market value.

After an evidentiary hearing, the trial court sustained the contest and entered detailed findings. Among other things, the court found that the appellant presented no relevant or credible evidence supporting indigency, that his evidence was conclusory and uncorroborated, that the inability statement contained numerous material misrepresentations, and that he had sufficient income and additional support to cover his living expenses and court costs. The appellant appealed the order denying Rule 145 relief.

Issues Decided

• Whether, under Texas Rule of Civil Procedure 145(f), the declarant bears the burden at a contest hearing to prove inability to afford costs by a preponderance of the evidence.
• Whether the trial court abused its discretion in sustaining the Rule 145 contest and denying indigency status based on the evidentiary record.
• Whether alleged defects in the contestant’s unsworn declaration defeated the Rule 145 contest under Civil Practice and Remedies Code section 132.001.
• Whether substantial compliance with section 132.001 is sufficient when the declaration supporting the contest contains only minor defects.

Rules Applied

The court relied primarily on Texas Rule of Civil Procedure 145. Rule 145(a) and (b) permit a party claiming inability to pay costs to file a statement of inability. Rule 145(d) requires the declarant to submit evidence of inability to pay and recognizes a rebuttable presumption where the declarant receives means-tested public benefits. Rule 145(e) permits a contest, and Rule 145(f) places the burden at the evidentiary hearing on the declarant to prove inability to afford costs by a preponderance of the evidence.

The court also applied the indigency standard articulated in Higgins v. Randall County Sheriff’s Office, 257 S.W.3d 684 (Tex. 2008): Whether the party would be unable to pay costs, or provide security, if he truly wanted to do so and made a good-faith effort. In evaluating inability, the court recognized that the trial court may consider income, assets, property holdings, debts, and monthly expenses.

On evidentiary form, the court looked to Civil Practice and Remedies Code section 132.001, which authorizes unsworn declarations in lieu of sworn affidavits if the declaration substantially complies with statutory requirements. The court treated minor technical defects as nonfatal where the declaration included the essential statutory components and clearly declared the truth of the matters stated under penalty of perjury.

Finally, the court reviewed the ruling under the familiar abuse-of-discretion standard, emphasizing that trial courts remain the sole judges of witness credibility and evidentiary weight in contested Rule 145 hearings.

Application

The court treated the Rule 145 hearing as what it is: an evidentiary contest, not a pleading exercise. Once the contest was properly before the trial court, the declarant could no longer rely on the face of his inability statement or on generalized claims of hardship. He had to prove inability to afford costs by a preponderance of the evidence. That burden mattered here because the contestant came forward with documentary material suggesting the inability statement was not merely incomplete, but materially misleading.

The appellate court deferred to the trial court’s role as factfinder. The trial court expressly found the appellant not credible, found his evidence uncorroborated and conclusory, and determined that his statement omitted assets and misstated income and expenses. The court also noted the absence of competent proof supporting the appellant’s checked boxes for means-tested benefits. That is a practical point litigators should not miss: the Rule 145 presumption does not carry much force if the claimed qualifying benefits are unsupported and the broader record cuts the other way.

Just as importantly, the court rejected the argument that the contest failed because the supporting unsworn declaration was technically defective. The declaration included the declarant’s identifying information and an affirmation under penalty of perjury that the contents were true and correct. That was enough. Substantial compliance with section 132.001 supported consideration of the contest, and the trial court was entitled to reach the merits.

Holding

The court held that under Rule 145(f), when a Rule 145(e) contest is filed, the declarant bears the burden to prove inability to afford court costs by a preponderance of the evidence. A party seeking to proceed without costs must do more than file the statement; if challenged, the party must substantiate the claimed inability with credible evidence.

The court further held that the trial court did not abuse its discretion in denying indigency status where the record supported findings of material misrepresentations, unsupported assertions of means-tested benefits, and the existence of income, assets, or other support sufficient to pay costs. In that setting, the trial court was entitled to reject the declarant’s claim of indigency.

The court also held that the contestant’s unsworn declaration was not fatally defective. An unsworn declaration that substantially complies with Civil Practice and Remedies Code section 132.001 is sufficient to support a Rule 145 contest despite minor defects, and the order denying the statement could be affirmed on that basis.

Practical Application

Family-law practitioners should read Perricone as a credibility-and-proof case. In divorce and SAPCR litigation, inability statements often appear in emergency filings, interlocutory fights, and appeals. This opinion underscores that courts may look beyond the four corners of the Rule 145 form and examine the party’s total financial reality, including undisclosed assets, inconsistent statements in bankruptcy filings or other litigation, household contributions from a spouse or partner, support from third parties, and whether claimed public benefits are actually proven.

For counsel challenging a Rule 145 statement, Perricone supports a targeted documentary attack. Prior sworn or unsworn financial representations, property records, child-support histories, vehicle valuations, bank information, and evidence of regular household support can all be relevant. In family cases, that often means comparing the inability statement against inventories, financial information statements, loan applications, child-support records, tax returns, and testimony from temporary-orders or enforcement hearings.

For counsel defending a Rule 145 statement, the lesson is equally clear: do not assume the form itself will carry the day. If your client claims means-tested benefits, attach proof. If a vehicle is encumbered or effectively unavailable, prove it. If household expenses are paid by others, explain the arrangement carefully and accurately. And if the client has made prior financial representations in bankruptcy court, support proceedings, or related family litigation, reconcile them before the hearing rather than after impeachment.

In appellate family practice, this case also has strategic value because it confirms that substantial compliance principles apply to the contestant’s declaration. A declarant facing a contest should focus on the merits unless the defect is genuinely substantive; minor section 132.001 complaints are unlikely to defeat an otherwise supported challenge.

Checklists

Preparing a Defensible Rule 145 Statement

• Verify every income source, including disability benefits, self-employment income, child support received for other household members, gifts, and recurring third-party assistance.
• Disclose all real and personal property, even if encumbered, disputed, or of limited net value.
• Attach proof of any means-tested benefits claimed on the Rule 145 form.
• Reconcile the statement with bankruptcy schedules, tax filings, financial information statements, and prior sworn testimony.
• Be ready to explain vehicle values, account balances, and nontraditional household support.
• Prepare corroborating exhibits before the hearing rather than relying on client testimony alone.

Contesting an Opponent’s Indigency Claim

• Obtain prior financial representations from bankruptcy filings, family-court disclosures, support proceedings, and other litigation.
• Compare the inability statement against public records for vehicles, real property, business interests, and manufactured housing.
• Subpoena or gather payment records showing support, gifts, or contributions from third parties.
• Challenge unsupported claims of means-tested benefits if no documentation is attached.
• Use market-value evidence for vehicles or other assets listed at implausibly low values.
• Frame the challenge around credibility, omissions, inconsistencies, and ability to make a good-faith effort to pay costs.

Drafting a Rule 145 Contest That Will Survive Form Challenges

• Include an unsworn declaration stating that the factual assertions are true and correct under penalty of perjury.
• Include the declarant’s full name, date of birth, and address.
• Use statutory language tracking Civil Practice and Remedies Code section 132.001 as closely as possible.
• Attach supporting documents authenticated, where appropriate, by declaration.
• Avoid overreliance on technical objections; build a record on the merits.
• Request express findings if the court sustains the contest.

Presenting the Evidentiary Hearing

• Organize the proof by income, assets, expenses, and inconsistencies.
• Cross-examine on omitted assets, understated income, and unsupported expenses.
• Highlight discrepancies between claimed inability and the party’s actual litigation conduct or lifestyle only if tied to admissible financial proof.
• Ask the court to make credibility findings where the record supports them.
• Emphasize the declarant’s burden under Rule 145(f) to prove inability by a preponderance of the evidence.
• Preserve exhibits and hearing objections for appellate review.

Citation

Perricone v. Perricone, No. 11-25-00213-CV, ___ S.W.3d ___, 2026 WL ___ (Tex. App.—Eastland June 4, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion here

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