TRAP 20.1 and TRCP 145 Amendments Change Texas Indigence Protections on Appeal

Amendments Change Texas Indigence Protections on Appeal.

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Texas Rule of Appellate Procedure 20.1 and Texas Rule of Civil Procedure 145 were amended by Texas Supreme Court Order, Miscellaneous Docket No. 16-9122, effective September 1, 2016 to change the procedure for a party claiming an inability to afford court costs. Instead of an affidavit of indigence, a party must now file a Statement of Inability to Afford Payment of Court Costs. Generally, if a party filed a Statement in the trial court, she is not required to pay costs in the appellate court unless the trial court overruled the party’s claim under TRCP 145(f). If the claim was overruled, the appellate court may permit the party to proceed without payment of costs if she can show a material change in her financial circumstances since the trial court overruled her claim. Even if no Statement was filed in the trial court, the appellate court may still permit the party to proceed without payment of costs.

The official comment to the 2016 change to TRAP 20.1 explains some of the rationale behind the amendment –

[TRAP 20.1] has been rewritten so that it only governs filing fees and any other fee charged by the appellate court. [TRCP] 145 governs a party’s claim that the party is unable to afford costs for preparation of the appellate record.

Because appellate filing fees are minimal, a party that filed a Statement of Inability to Afford Payment of Court Costs in the trial court is not required to file a new Statement in the appellate court unless the trial court made affirmative findings under [TRCP] 145 that the party is able to afford all court costs and to pay those costs as they are incurred. …

Experience has shown that, in most cases, a party’s financial circumstances do not change substantially between the trial court proceedings and the appellate court proceedings. Nonetheless, [TRAP 20.1(b)(3)] permits a party whom the trial court determined is able to afford all costs to demonstrate to the appellate court that the party’s circumstances have changed since the trial court’s ruling and that the party is unable to afford appellate filing fees.

How do the changes affect appellate practice? For full analysis of appealing as an indigent party, turn to O’Connor’s Texas Civil Appeals. Along with its case-annotated version of the Texas Rules of Appellate Procedure, Texas Civil Appeals includes commentary subchapters covering proceedings without payment of costs under TRAP 20.1 and motions for a free appellate record under Civil Practice & Remedies Code §13.003, as well as completely revised forms covering these topics.

O’Connor’s Texas Civil Appeals 2017 is now available—visit our online store to order your copy! And for an in-depth discussion of the changes to TRCP 145, we’ve got you covered with O’Connor’s Texas Rules * Civil Trials 2017.

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