Rule 145 Indigency Hearing Cannot Deny Costs for Nonappearance | Perez v. Akene (2026)

Perez v. Akene, 03-26-00605-CV, September 17, 2026.

On appeal from 169th District Court of Bell County

Synopsis

Rule 145 does not allow a trial court to deny indigency status and require payment of appellate costs solely because the declarant failed to appear at the indigency hearing when no sworn contest was filed and the declarant submitted prima facie evidence of inability to pay. In Perez v. Akene, the Third Court held that means-tested benefits and supporting financial records established a prima facie showing under Rule 145(d), and absent contrary evidence, the order requiring costs was an abuse of discretion.

Relevance to Family Law

This opinion matters in family cases because appellate-cost issues frequently arise after final orders in divorce, SAPCR, modification, enforcement, and protective-order litigation, especially when one party is self-represented or financially distressed. For family-law litigators, Perez is a useful Rule 145 decision on preserving appellate access: if your client files a compliant statement of inability and supplies prima facie proof—particularly means-tested benefits—the trial court cannot convert a missed hearing into a merits-based denial of indigency without a proper sworn contest and actual rebuttal evidence. In practical terms, this case protects appeals in high-conflict custody and property disputes where financial pressure is often used as leverage after judgment.

Case Summary

Fact Summary

Rebecca Perez, a pro se litigant, filed a Statement of Inability to Afford Court Costs or an Appeal Bond after the trial court entered final judgment in a Bell County family case. The appellate record reflected no sworn motion contesting her indigency. Even so, the trial court set what it called a “Contest Inability to Pay” hearing.

Before the hearing, Perez moved to appear remotely, explaining that she lived in Florida, could not afford travel to Texas, and faced additional travel constraints because she was on probation supervision in Florida. She also filed an exhibit index with supporting financial materials, including a lease, a Florida SNAP award letter, an SSA verification letter reflecting SSI benefits paid on behalf of a disabled minor child, a current pay stub, utility and phone bills, and Texas and Florida probation-fee statements.

The trial court did not grant remote appearance. The day before the hearing, court staff advised Perez that her presence was required, though the hearing could be reset briefly to allow travel. Perez responded that additional time would not cure the same inability to travel and again requested Zoom or telephone appearance. The trial court proceeded with the hearing the next morning. Perez did not appear in person and did not log in to Zoom.

At the hearing, the court voiced concerns about parts of Perez’s filing, including tip income, her rent level, the treatment of SSI paid for a child, and whether some submitted payment records required further explanation. But no witness testified against Perez, and no documentary evidence was introduced to rebut her sworn statement or exhibits. Appellee’s counsel stated opposition to the statement of inability but offered no evidence contradicting it. The trial court then denied indigency and ordered Perez to pay appellate costs, expressly basing the ruling on her failure to appear and the court’s inability to obtain further explanation from her.

Perez timely challenged that order in the court of appeals under Rule 145(g).

Issues Decided

• Whether Texas Rule of Civil Procedure 145 permits a trial court to order payment of appellate costs based solely on the declarant’s failure to appear at an indigency hearing.
• Whether nonappearance alone defeats a Statement of Inability to Afford Payment of Court Costs when no sworn contest under Rule 145(e)(1) was filed.
• Whether a declarant’s submission of prima facie evidence under Rule 145(d), including proof of means-tested public benefits, prevents the trial court from requiring costs absent contrary evidence.
• Whether the trial court abused its discretion by ordering payment of appellate costs on this record.

Rules Applied

The court worked from the text and structure of Texas Rule of Civil Procedure 145. Several components mattered.

• Rule 145(b) allows a party to file a sworn Statement of Inability to Afford Payment of Court Costs.
• Rule 145(d) provides that the declarant should submit available evidence of inability to pay and identifies what qualifies as prima facie proof, including receipt by the declarant or the declarant’s dependent of means-tested government benefits.
• Rule 145(e)(1) allows a clerk, court reporter, or party to file a motion requiring payment of costs, but that motion must contain sworn evidence, not merely allegations, showing either material falsity when made or that the statement is no longer true because of changed circumstances.
• Rule 145(e)(2) separately permits the trial court to require proof when evidence comes before the court suggesting the declarant may be able to afford costs or when an officer or professional must be appointed.
• Rule 145(f)(1) bars a court from requiring payment of costs without an oral evidentiary hearing after proper notice if indigency is contested.
• Rule 145(f)(2) requires detailed findings that the declarant can afford to pay costs before ordering payment.
• Rule 145(f)(4) authorizes appellate challenge to an order requiring costs.

The court also relied on the familiar indigency standard from Higgins v. Randall County Sheriff’s Office, 257 S.W.3d 684 (Tex. 2008): the question is whether the person could pay the costs if she really wanted to and made a good-faith effort to do so. The Rule 145 comment was also important because it frames the inquiry as affordability, not bare theoretical ability to pay, with emphasis on preserving basic necessities such as housing and food. And the court referenced authority recognizing that a trial court may not simply disregard uncontroverted positive evidence of inability to pay.

Application

The Third Court treated Perez’s evidentiary showing as the starting point, and that mattered. Her filings included proof that her household received means-tested public benefits—specifically SNAP and SSI paid on behalf of a dependent disabled child—along with records reflecting income, rent, utilities, and supervision-related financial obligations. Under Rule 145(d), that type of evidence constitutes a prima facie showing of inability to pay.

From there, the problem for the trial court was procedural and evidentiary. The record did not show a sworn contest under Rule 145(e)(1). That omission was significant because Rule 145 does not authorize a trial court to defeat a prima facie indigency showing based merely on suspicion, unanswered questions, or the opposing side’s unsworn disagreement. The trial court identified concerns about omissions or ambiguities in the papers, but those concerns were not evidence. Nor were they a substitute for the sworn contest mechanism built into the rule.

The appellate court also focused on the absence of rebuttal proof at the hearing. Appellee’s counsel opposed the request, but no witness testified and no documents were admitted to show that Perez’s statement was materially false, incomplete in a way that changed the outcome, or obsolete because circumstances had improved. That left Perez’s evidence as the only affirmative proof in the record.

Against that backdrop, the trial court’s stated basis for denial—Perez’s nonappearance—could not carry the order. The court of appeals concluded that Rule 145 does not make physical attendance, by itself, a forfeiture device when the declarant has already submitted prima facie proof and no contrary evidence appears. The hearing may be an evidentiary mechanism, but it is not a license to deny indigency simply because the declarant is absent, particularly where the absence itself was tied to the same claimed inability to afford costs. In effect, the trial court treated nonappearance as substantive proof of affordability. The Third Court rejected that move.

The court therefore concluded that, on this record, ordering Perez to pay appellate costs was arbitrary enough to constitute an abuse of discretion. The proper remedy was reversal of the Rule 145 order and direction to the clerk and court reporter to prepare the appellate record without prepayment.

Holding

The court held that Rule 145 does not permit a trial court to require payment of appellate costs solely because the declarant failed to appear at the indigency hearing when no sworn contest was filed and the declarant had already submitted prima facie evidence of inability to pay under Rule 145(d). Nonappearance alone is not evidence that the declarant can afford costs.

The court further held that where the declarant’s proof includes means-tested public-benefit evidence sufficient to establish a prima facie case, and the opposing side offers no testimony or documentary evidence to rebut that showing, an order requiring payment of costs is unsupported. A trial court’s concerns about unexplained entries, suspected omissions, or lifestyle choices do not substitute for actual contradictory evidence.

Finally, the court held that the trial court abused its discretion by ordering Perez to pay appellate costs on this record. The court reversed the indigency order and directed the district clerk and court reporter to prepare the appellate record without prepayment of costs.

Practical Application

For Texas family-law litigators, Perez is a strong procedural opinion to keep handy when appellate access becomes contested after judgment. In many family cases, the economically weaker party is also the appellant, and cost disputes can become an extension of the merits fight. This case clarifies that Rule 145 is not a discretionary gatekeeping tool that allows a trial judge to deny indigency because the papers raise questions or because the declarant failed to attend a hearing.

In divorce litigation, this matters when a client is appealing a property division but has unstable housing, public-benefit income, wage irregularity, or supervision-related expenses. In SAPCR and modification cases, it matters even more because parties often live in different counties or states and may be juggling transportation, compliance obligations, and child-care constraints. Perez provides authority that a court cannot sidestep the Rule 145 framework by pointing to nonappearance rather than evidence of actual ability to pay.

Practitioners representing the indigent appellant should still treat the hearing seriously. The win in Perez does not mean appearance is irrelevant; it means absence alone is not enough to defeat a prima facie showing. If remote appearance is needed, build a written record early, tie the request directly to the inability-to-pay showing, and file supporting material that makes the economics undeniable. The better your paper record, the less room there is for a trial court to justify an adverse ruling.

For practitioners opposing indigency, Perez is equally instructive. If you intend to challenge a statement of inability, file a sworn contest and come to the hearing with evidence, not argument. Unsworn skepticism about reported expenses, living arrangements, family assistance, tip income, or benefit treatment will not do the work. If you suspect the declarant omitted income, understated support, or mischaracterized expenses, prove it with records or testimony.

The case also has strategic implications for preserving error and accelerating appellate relief. In family cases with emergency overtones—possession disputes, relocation restrictions, protective-order collateral consequences, or post-judgment enforcement exposure—the ability to compel preparation of the record without prepayment can determine whether appellate review is meaningful. Counsel should be prepared to invoke Rule 145(g) immediately when a defective order is signed.

Checklists

Build a Prima Facie Rule 145 Record

• File a sworn Statement of Inability that is complete, internally consistent, and signed under oath or penalty of perjury.
• Attach documentary support for income, expenses, debts, and recurring obligations.
• Include proof of means-tested benefits whenever available, including SNAP, Medicaid, TANF, SSI, or similar benefits received by the client or a dependent.
• Include current pay information, housing costs, utilities, transportation expenses, and any supervision or support-payment obligations.
• If the client resides out of state or far from the courthouse, document travel barriers as part of the affordability narrative.

Preserve the Remote-Appearance Issue

• File a written motion for remote appearance as soon as the hearing is set.
• Explain specifically why in-person attendance is financially infeasible.
• Tie the request to facts already reflected in the inability-to-pay materials.
• Document any additional barriers such as probation restrictions, child-care obligations, disability, or work constraints.
• Follow up in writing if the court does not rule.
• Save emails with the court coordinator and file them if necessary to preserve the record.

Challenge an Adverse Rule 145 Order

• Review whether a sworn contest under Rule 145(e)(1) was ever filed.
• Review whether the hearing actually produced rebuttal evidence, as opposed to argument from counsel.
• Examine whether the order contains detailed findings that the declarant can afford to pay costs.
• Compare the court’s findings to the actual evidence in the record.
• File the Rule 145(g) challenge in the court of appeals within the deadline stated in the order.
• Ask the appellate court to direct the clerk and court reporter to prepare the record without prepayment.

Oppose Indigency the Right Way

• File a sworn contest supported by admissible evidence.
• Identify whether the challenge is based on material falsity at the time of filing or changed circumstances.
• Use bank records, employment records, social media evidence, support-payment records, or witness testimony if they genuinely undermine the declarant’s showing.
• Do not rely solely on cross-examination opportunities that may never occur.
• Be prepared to rebut means-tested-benefit evidence with something more than speculation.
• Request findings tied to actual evidence of affordability, not merely inconsistencies or unanswered questions.

Draft a Defensible Trial-Court Order

• Ensure the order is based on evidence, not nonappearance alone.
• Include detailed findings explaining why the declarant can afford costs.
• Identify the specific evidence supporting affordability.
• Avoid findings based on conjecture about third-party financial help unless the record proves it.
• Include the required Rule 145(f)(4) notice regarding appellate challenge.
• Confirm that the hearing and notice requirements were satisfied.

Citation

Perez v. Akene, No. 03-26-00605-CV, 2026 WL ___ (Tex. App.—Austin Sept. 17, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

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