Rule 20 — When Party is Indigent

20.1.  Civil Cases
(a) Costs Defined. In this rule, “costs” mean
filing fees charged by the appellate court.
Fees charged for preparation of the appellate
record are governed by Texas Rule of Civil
Procedure 145.
(b) When a Statement Was Filed in the Trial
Court.
(1) General Rule; Status in Trial Court
Carries Forward. A party who filed a
Statement of Inability to Afford Payment
of Court Costs in the trial court is not
required to pay costs in the appellate
court unless the trial court overruled the
party’s claim of indigence in an order
that complies with Texas Rule of Civil
Procedure 145. A party is not required to
pay costs in the appellate court if the trial
court ordered the party to pay partial
costs or to pay costs in installments.
(2) Establishing the Right to Proceed Under
the General Rule. To establish the right
to proceed without payment of costs
under (1), a party must communicate to
the appellate court clerk in writing that
the party is presumed indigent under this
rule. In an appeal under Section Two of
these rules, the applicability of the
presumption should be stated in the
notice of appeal and in the docketing
statement.
(3) Exception;
Material
Change
in
Circumstances. An appellate court may
permit a party who is not entitled to
proceed under (1) to proceed without
payment of costs if the party establishes
that the party’s financial circumstances
have materially changed since the date of
the trial court’s order under Texas Rule
of Civil Procedure 145.
(A) Requirements. The party must file a
motion in the appellate court
alleging that the party’s financial
circumstances
have
materially
changed since the date of the trial
court’s
order
and
a
current
Statement of Inability to Afford
Payment of Court Costs that
complies with Texas Rule of Civil
Procedure 145. The Statement that
was filed in the trial court does not
meet the requirements of this rule.
(B) Action by Appellate Court. The
appellate court may decide the
motion based on the record or refer
the motion to the trial court with
instructions to hear evidence and
issue findings of fact. If a motion is
referred to the trial court, the
appellate court must review the trial
court’s findings and the record of
the hearing before ruling on the
motion.
(c) When No Statement Was Filed in the Trial
Court. An appellate court may permit a party
who did not file a Statement of Inability to
Afford Payment of Court Costs in the trial
court to proceed without payment of costs.
The court may require the party to file a
Statement in the appellate court. If the court
denies the party’s request to proceed without
payment of costs, it must do so in a written
order.
20.2.  Criminal Cases
Within the time for perfecting the appeal, an
appellant who is unable to pay for the appellate record
may, by motion and affidavit, ask the trial court to
have the appellate record furnished without charge. If
after hearing the motion the court finds that the
appellant cannot pay or give security for the appellate
record, the court must order the reporter to transcribe
the proceedings. When the court certifies that the
appellate record has been furnished to the appellant,
the reporter must be paid from the general funds of the
county in which the offense was committed, in the
amount set by the trial court.

Comment to 1997 change: The rule is new and
combines the provisions of former Rules 13(k),
40(a)(3), and 53(j).  The procedure for proceeding in
civil cases in an appellate court without advance
payment of costs, in both appeals and original
proceedings, is stated. The information that must be
given in the affidavit is prescribed. An extension of
time to file the affidavit is now available.  The indigent
party is no longer required to serve the court reporter,
but must file the affidavit with the appropriate clerk
who is to notify the court reporter. A contest need not
be under oath. Provision is made for later ability to pay
the costs.   Nonsubstantive changes are made to the
rule for criminal cases.
Comment to 2008 change: Subdivision 20.1(a) is
added to provide, as in Texas Rule of Civil Procedure
145, that an affidavit of indigence accompanied by an
IOLTA or other Texas Access to Justice Foundation
certificate
cannot
be
challenged.
Subdivision
20.1(c)(1) is revised to clarify that an affidavit of
indigence filed to proceed in the trial court without
advance payment of costs is insufficient to establish
indigence on appeal; a separate affidavit must be filed
with or before the notice of appeal.   Subdivision
20.1(c)(3) is revised to provide that an appellate court
must give an appellant who fails to file a proper
appellate indigence affidavit notice of the defect and
an opportunity to cure it before dismissing the appeal
or affirming the judgment on that basis.  See Higgins
v. Randall County Sheriff's Office, 193 S.W.3d 898
(Tex. 2006).  The limiting phrase “under (c)(2)” in
Subdivision 20.1(d)(2) is deleted to clarify that the
appellate clerk's duty to forward copies of the affidavit
to the trial court clerk and the court reporter, along
with a notice setting a deadline to contest the affidavit,
applies to affidavits on appeal erroneously filed in the
appellate court, not only to affidavits in other appellate
proceedings properly filed in the appellate court under
subdivision 20.1(c)(2).  Although Subdivision 3.1(g)
defines “court reporter” to include court recorder,
subdivision 20.1(e) is amended to make clear that a
court recorder can contest an affidavit.

Comment to 2016 Change:
The rule has been rewritten so that it only governs
filing fees and any other fee charged by the appellate
court. Texas Rule of Civil Procedure 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 Texas Rule of
Civil Procedure 145 that the party is able to afford all
court costs and to pay those costs as they are incurred.
Furthermore, because a determination of indigence by
the trial court carries forward to appeal in all cases,
Family Code section 107.013 is satisfied.
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, (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.