Rule 145 Protects Basic Essentials Such as Housing and Food| Morris v. Morris (2026)

Morris v. Morris, 04-26-00115-CV, September 30, 2026.

On appeal from 224th Judicial District Court, Bexar County, Texas

Synopsis

Texas Rule of Civil Procedure 145 does not ask merely whether a litigant has income; it asks whether the litigant can afford court costs without sacrificing basic essentials such as housing and food. Because the uncontradicted evidence showed that Rachael Morris’s essential monthly expenses exceeded her net income, the trial court abused its discretion by requiring her to pay the costs of appeal based primarily on her gross income and ability to work.

Relevance to Family Law

Ability-to-afford-costs disputes arise frequently in divorce, modification, conservatorship, child-support, and property cases because appellate records can be expensive while the parties’ finances are already strained by support obligations, divided households, attorney’s fees, and post-judgment awards. Morris confirms that a family-law litigant is not disqualified from Rule 145 protection merely because the litigant is employed or earns more than the federal poverty guidelines. The controlling inquiry is practical: after considering net income, necessary expenses, debts, dependents, available assets, and access to credit, can the litigant pay court costs without foregoing basic essentials?

The opinion is also important when the challenged order itself materially affects the appellant’s finances. Here, the modification order changed the children’s primary-residence designation, imposed monthly child support, and awarded more than $24,000 against the appellant. Family-law practitioners should therefore present the client’s actual post-judgment financial condition rather than permit the Rule 145 hearing to focus narrowly on salary or employability.

Case Summary

Fact Summary

Rachael and Marcus Morris divorced in 2022 and had two children. Both parties later sought modification of the order affecting the parent-child relationship. On January 20, 2026, the trial court appointed the parties joint managing conservators, gave Marcus the exclusive right to designate the children’s primary residence, and ordered Rachael to pay $1,041 in monthly child support. The court also ordered her to pay Marcus $24,256 for attorney’s fees and overpaid child support.

Rachael timely filed a notice of appeal and a Statement of Inability to Afford Payment of Court Costs under Texas Rule of Civil Procedure 145. The court reporter challenged the statement and requested proof of Rachael’s inability to pay. After an evidentiary hearing, the trial court found that Rachael could afford the appellate costs, including preparation of the clerk’s and reporter’s records.

Rachael, appearing pro se, was the only witness at the Rule 145 hearing. She testified that she earned gross monthly income of $4,804.17 as a teacher, but her monthly take-home pay after deductions was $2,962.43. She could bartend for additional income during the summer, but she was prohibited from holding another job during the school year.

Her uncontradicted evidence identified monthly expenses of $1,400 for rent, $675 for a vehicle payment, $110 for automobile insurance, between $300 and $360 for utilities, $288 for telephone service for herself and the children, and $35 for internet service. Even using the lower utility figure, those expenses left no more than $154.43 for food, gasoline, medical copayments, medication, and other necessities. Her sworn statement reflected total monthly expenses of approximately $3,540—more than her net income.

The trial court nevertheless found that Rachael could afford costs. Its written findings emphasized that her gross annual income was more than twice the 2026 federal poverty-guideline threshold for a household of two, that she was capable of gainful employment, including summer employment, and that she was not represented by legal aid. The findings did not address her monthly expenses or debts.

Issues Decided

• Whether a litigant can afford appellate court costs under Rule 145 when uncontradicted evidence establishes that the litigant’s essential monthly expenses exceed net income.

• Whether gross earnings above the federal poverty guidelines, employability, and the absence of legal-aid representation support an ability-to-pay determination without findings addressing the litigant’s expenses and debts.

• Whether the trial court abused its discretion by sustaining the court reporter’s challenge and requiring Rachael to pay for the appellate record.

Rules Applied

Texas Rule of Civil Procedure 145 allows a party who cannot afford court costs to proceed by filing a Statement of Inability to Afford Payment of Court Costs with supporting evidence. A district clerk, court reporter, or opposing party may challenge the statement. Once challenged, the trial court must conduct an oral evidentiary hearing, and the declarant bears the burden of proving an inability to afford costs. TEX. R. CIV. P. 145(b), (d)–(f).

Under Higgins v. Randall County Sheriff’s Office, the trial court considers whether the record as a whole establishes, by a preponderance of the evidence, that the declarant could not pay costs, provide security, or pay part of the costs despite a good-faith effort to do so. Relevant financial considerations include:

• The nature and amount of the declarant’s income;
• A spouse’s income, if it is available to the declarant;
• Real and personal property;
• Available cash and bank deposits;
• The number of dependents;
• Monthly expenses and debts;
• The ability to obtain a loan for court costs;
• Whether counsel is providing free legal services without a contingent fee; and
• Whether counsel has agreed to pay or advance court costs.

Rule 145’s 2016 comment distinguishes an abstract ability to pay from an actual ability to afford costs. A person cannot afford costs when paying them would prevent the person from paying for basic essentials such as housing or food.

If the trial court determines that the declarant can afford costs, Rule 145(f)(2) requires the resulting order to be supported by detailed findings. An ability-to-afford determination is reviewed for abuse of discretion. A trial court acts within its discretion when some evidence reasonably supports its ruling or when the ruling resolves conflicting evidence, but it abuses that discretion when it acts arbitrarily, unreasonably, or without reference to governing legal principles.

Application

The Fourth Court of Appeals accepted that the trial court’s express findings had evidentiary support. Rachael was employed, her gross income exceeded the cited poverty threshold, she had some potential to earn summer income, and she was not represented by legal aid. Those facts, however, did not resolve the controlling question under Rule 145.

The relevant comparison was between income actually available to Rachael and the expenses necessary to maintain basic living conditions. Her gross salary was $4,804.17 per month, but her net monthly income was only $2,962.43. Her unchallenged testimony regarding rent, transportation, utilities, telephone service, and internet left no more than $154.43 for food, gasoline, medical expenses, and other necessities. Her sworn statement placed her overall monthly expenses at approximately $3,540, meaning her expenses exceeded her take-home income.

No witness contradicted Rachael’s evidence. Nor did the trial court make findings rejecting particular expenses as unnecessary, inflated, avoidable, or unsupported. Instead, the order focused on gross earnings, employability, and legal-aid status while omitting findings on expenses and debts—the considerations that showed whether payment of appellate costs would displace housing, food, or other essentials.

The appellate court concluded that an income figure exceeding the federal poverty guidelines did not overcome the undisputed evidence of a monthly deficit. Because payment for the appellate record would necessarily create additional hardship when essential expenses already exceeded net income, the trial court’s findings did not support its determination that Rachael could afford the costs.

Holding

A declarant cannot afford court costs under Texas Rule of Civil Procedure 145 when paying those costs would preclude payment for basic essentials such as housing or food. The inquiry is not limited to whether the declarant has employment, gross earnings, or a theoretical capacity to generate additional income.

The trial court’s findings concerning gross annual income, employment capacity, summer work, and lack of legal-aid representation were insufficient because they did not address Rachael’s uncontradicted evidence concerning net income, necessary expenses, and debts. Federal poverty guidelines may be relevant, but they are not dispositive of the Rule 145 analysis.

Because the uncontradicted evidence established that Rachael’s essential expenses exceeded her net income, the trial court abused its discretion by sustaining the challenge to her statement and ordering her to pay the costs of appeal. The Fourth Court of Appeals reversed the June 8, 2026 ability-to-afford-costs order and remanded the matter.

Practical Application

For the declarant, Morris underscores the need to prove cash flow rather than rely on a generalized assertion of hardship. Counsel should present gross income, mandatory deductions, net income, liquid assets, debts, dependents, and itemized monthly expenses. Housing, food, transportation, insurance, utilities, medical costs, child-related expenses, and existing support obligations should be documented whenever possible.

In a divorce or property appeal, a client may have substantial gross income but little liquidity because of temporary orders, debt service, property-related expenses, attorney’s-fee awards, or restrictions on access to marital funds. Rule 145 does not equate salary with available cash, but the declarant should explain why property cannot be sold, borrowed against, or otherwise used to fund the record.

In conservatorship and child-support litigation, counsel should account for the financial effect of the order being appealed. New child-support obligations, loss of support, travel expenses associated with possession, health-insurance premiums, and unreimbursed medical expenses may materially affect the client’s ability to pay appellate costs. Those expenses should be tied to testimony and supporting exhibits rather than left for the trial court to infer.

When challenging a Rule 145 statement, the reporter, clerk, or opposing party should develop evidence that contradicts the claimed shortfall. Relevant areas include undisclosed accounts, discretionary spending, available household income, nonessential assets, recent transfers, access to credit, inconsistent financial disclosures, and counsel’s agreement to advance costs. Merely showing that the declarant works or earns above the poverty guidelines may not sustain the challenge.

Finally, the proposed order matters. If the court finds that the declarant can afford all or part of the costs, the order must contain detailed findings addressing the complete financial picture. Findings limited to gross income and employability are vulnerable when the record contains unrebutted evidence that necessary expenses consume or exceed net income.

Checklists

Preparing the Rule 145 Statement

• Identify every source of gross income.
• Calculate net income using current pay records.
• Separate mandatory deductions from voluntary deductions.
• Identify available cash, bank deposits, investments, and other liquid assets.
• List real and personal property and explain any lack of equity or liquidity.
• Identify all dependents and recurring child-related expenses.
• Itemize monthly housing, food, transportation, insurance, utility, medical, and support expenses.
• Include installment debt, judgments, attorney’s-fee awards, and other mandatory payments.
• Disclose whether a spouse or household member’s income is available to the declarant.
• Address the ability—or inability—to borrow money for appellate costs.
• Disclose whether counsel is serving without charge or has agreed to advance costs.
• Attach documents that corroborate the financial information.

Building the Evidentiary Record

• Offer recent pay stubs showing gross pay, deductions, and net pay.
• Offer recent tax returns when they accurately reflect present income.
• Provide bank statements and explain unusual deposits or withdrawals.
• Introduce leases, mortgage statements, utility bills, insurance invoices, and loan statements.
• Document child support, health-insurance premiums, childcare, and medical expenses.
• Establish whether employment restrictions limit additional work.
• Explain whether seasonal or speculative income is actually available.
• Testify about food, gasoline, medication, and other expenses not reflected in fixed bills.
• Calculate the client’s monthly surplus or deficit on the record.
• Establish the anticipated amount of clerk’s and reporter’s record costs, if available.
• Explain specifically which essentials would go unpaid if costs were imposed.
• Ensure the sworn statement and hearing testimony are internally consistent.

Defending Against an Indigency Challenge

• Keep the analysis focused on net income and available resources rather than gross salary alone.
• Emphasize that the federal poverty guidelines are relevant but not dispositive.
• Identify any uncontradicted testimony concerning necessary expenses.
• Distinguish theoretical earning capacity from income presently available.
• Explain why assets are unavailable, exempt, illiquid, encumbered, or necessary for basic living.
• Address whether loans or credit are realistically obtainable.
• Demonstrate the financial effect of the judgment or order being appealed.
• Ask the court to evaluate whether payment would displace housing, food, transportation, or medical care.
• Request findings addressing expenses, debts, dependents, assets, and borrowing capacity.
• Confirm that the reporter’s record from the Rule 145 hearing is preserved for appellate review.

Challenging a Rule 145 Statement

• Compare the statement with discovery responses and prior inventories.
• Investigate omitted employment, accounts, assets, or household income.
• Examine whether claimed expenses are necessary, reasonable, and actually paid.
• Identify discretionary or unusually high spending.
• Determine whether the declarant recently transferred or dissipated assets.
• Explore home equity, vehicle equity, available credit, and borrowing history.
• Determine whether another person regularly pays the declarant’s expenses.
• Clarify whether counsel has agreed to advance court costs.
• Present contradictory evidence rather than relying solely on cross-examination.
• Propose detailed findings addressing both income and expenses.
• Consider whether the evidence supports partial payment or installment payments rather than payment of all costs.

Drafting an Ability-to-Pay Order

• State the declarant’s gross and net income separately.
• Identify each additional source of income found to be available.
• Address cash, deposits, property, and other assets.
• Make findings concerning dependents.
• Address necessary monthly expenses individually or by supported categories.
• Identify debts and mandatory support obligations.
• State whether spouse or household income is available.
• Address the declarant’s realistic ability to obtain a loan.
• Address counsel’s fee arrangement and any agreement to advance costs.
• Explain any finding that an asserted expense is unnecessary or not credible.
• Compare available monthly resources with the amount and timing of the required costs.
• Explain why payment would not preclude the declarant from paying for basic essentials.

Citation

Morris v. Morris, No. 04-26-00115-CV (Tex. App.—San Antonio Sept. 30, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion in Morris v. Morris.

~~19dc92fc-e481-41ce-b5c6-ae88f37253df~~