Adam E. Salazar v. Pauline Dickey, Frank E. Dickey, Elizabeth Coronado, Robert Ross, M.D., SCI Texas Funeral Services, Inc. d/b/a Roy Akers Zizik Kearns Funeral Chapels and d/b/a Sunset Northwest Chapel

Summary

The Fourth Court of Appeals of Texas held that the trial court failed to comply with Texas Rule of Appellate Procedure 20.1 after the appellate court referred a contest to an affidavit of indigence. Because the trial court did not conduct a new hearing within ten days of the referral, the court reversed the order sustaining the contest and rendered judgment allowing Salazar to proceed without advance payment of costs.

Holdings

1. A trial court that lacks plenary power has no authority to conduct a hearing on a contest to an affidavit of indigence.
2. An appellate order directing the trial court to determine the merits of an indigence contest and citing Rule 20.1(i) sufficiently refers the contest and triggers the rule's ten-day requirements.
3. When an appellate court refers an indigence contest, the trial court must conduct a hearing or sign an order extending the time within ten days; if it does neither, the affidavit's allegations are deemed true and the party must be allowed to proceed without advance payment of costs.

Questions Presented

1. Whether the trial court was required to conduct a hearing or sign an order extending the hearing period within ten days after the court of appeals referred the contest to it under Texas Rule of Appellate Procedure 20.1(i).
2. Whether a trial court lacking plenary power may conduct a hearing on a contest to an affidavit of indigence or rely on evidence presented at such a hearing.
3. Whether failure to conduct the required hearing within ten days required that Salazar be deemed indigent and allowed to proceed without advance payment of costs.
4. Whether the court of appeals' February 26, 2008 order sufficiently referred the contest to the trial court to trigger Rule 20.1(i)'s requirements.

Disposition

reversed