Higgins v. Randall County Sheriff’s Office, No. 06-0917 (Higgins II) Decided: May 16, 2008

Normally, appellate filing fees are a prerequisite to an appeal. An appellant can, however, avoid the fees by establishing indigence under Rule 20.1. What happens if an appellant files an affidavit of indigency that is plainly lacking as to some of the elements enumerated in the rule yet no one invokes the provisions in the rule permitting the affidavit to be “contested”?

A split Texas Supreme Court held that the court of appeals should not have dismissed a technically deficient affidavit in the absence of such a contest. Accordingly, it reversed the dismissal and remanded.

Interestingly, although this case was decided without oral argument under Rule 59.1 (a route that usually results in per curiam opinions), the Court actually split 5-3 on the merits. Justice O’Neill wrote for the majority; Justice Green wrote for the dissent. (Justice Johnson did not participate.)

Even more interesting, perhaps, is that this is the second time this indigent appellant has reached the Texas Supreme Court even before the court of appeals considers the merits of his case.

In 2005, the court of appeals refused to hear his claims because he had not timely filed the affidavit of indigence. The Texas Supreme Court reversed, “holding that an appeal may not be dismissed for a formal procedural defect unless the party is provided a reasonable opportunity to correct the defect. See Higgins v. Randall County Sheriff’s Office, 193 S.W.3d 898, 899–900 (Tex. 2006) (‘Higgins I’).”

Subsequently, the court of appeals directed Higgins to file a new affidavit. He did so, although (he contends) prison library rules prevented him from ascertaining all of the requirements of the rule. The new affidavit reads, in its entirety:

I, Lawrence Daniel Higgins, hereby swear that I am unable to pay any court costs in court of appeals No. 07-05-00004-CV. I am incarcerated and do not receive any monies from anywhere. I have no money at this time nor do I expect any money in the immediate future. I have attached a copy of the last trust fund account statement that I received which shows my balance to be $00.03. Please allow my appeal to proceed in forma pauperis since I am unable to pay the costs.

The court of appeals held that this was inadequate. Further, it suggested that this filing was so inadequate that there was not even anything to formally “contest”:

Moreover, it is implicit from the Supreme Court’s May 26th opinion that though a belated affidavit may be filed, those entitled to contest it under Rule 20.1(e) should still be afforded the chance to do so.8 See TEX. R. APP. P. 20.1(e) (stating that the court clerk, court reporter, and any party to the litigation may challenge the claim of indigence). Yet, without an affidavit addressing the topics specified in Rule 20.1(b), one entitled to contest the claim of indigence lacks sufficient information to meaningfully assess whether to proffer a challenge. [From the court of appeals opinion.]

A five-Justice majority, in an opinion written by Justice O’Neill, concluded that this was error, based both on the language of the rules and the general policy disfavoring technical dismissals of appeals.

The key language is found in Texas Rule of Appellate Procedure 20.1(f): “Unless a contest is timely filed, no hearing will be conducted, the affidavit’s allegations will be deemed true, and the party will be allowed to proceed without advance payment of costs.”

The majority places emphasis on that last phrase, concluding that the failure to hold a contest means that “the party will be allowed to proceed without advance payment of costs.” Thus, a technically deficient affidavit can suffice unless the rule’s “contest” procedures are invoked.

The three dissenting Justices, in an opinion written by Justice Green, would have placed greater emphasis on Rule 20.1(f)’s statement that “the affidavit’s allegations are deemed true,” concluding that a facially invalid affidavit is not cured by the absence of a contest to declare it so. Accordingly, the dissent would have affirmed the court of appeals’s dismissal of the case. (( Those three dissenting Justices were actually the only voices in this case against Higgins — or, perhaps more precisely, in defense of the court of appeals’s dismissal power. Footnote 3 of the majority opinion notes that the sheriff’s office elected not to file a response to the petition or to file a brief on the merits. ))