TRCP Rule 145: Payment of Costs Not Required

(a) Costs Defined. “Costs” mean any fee charged by the court or an officer of the court, including, but not limited to, filing fees, fees for issuance and service of process, fees for copies, fees for a court-appointed professional, and fees charged by the clerk or court reporter for preparation of the appellate record.

(b) Sworn Statement Required. A party who cannot afford payment of court costs must file the Statement of Inability to Afford Payment of Court Costs approved by the Supreme Court or another sworn document containing the same information. A “sworn” Statement is one that is signed before a notary or made under penalty of perjury. In this rule, “declarant” means the party filing the Statement.

(1) must make the Statement available to any person for free without request;
(2) may return a Statement for correction only if it is not sworn—not for failure to attach evidence or any other reason; and
(3) must, on the filing of a sworn Statement, docket the case, issue citation, and provide any other service that is ordinarily provided to a party.

(d) Prima Facie Evidence of Inability to Afford Payment of Costs. The declarant should submit with the Statement any available evidence of the declarant’s inability to afford payment of costs. An attachment demonstrating any of the following is prima facie evidence:

(1) the declarant or the declarant’s dependent receives benefits from a means-tested government entitlement program;
(2) the declarant is being represented in the case by an attorney who is providing legal services to the declarant through: (A) a provider funded by the Texas Access to Justice Foundation; (B) a provider funded by the Legal Services Corporation; or (C) a nonprofit that provides civil legal services to persons living at or below 200% of the federal poverty guidelines published annually by the United States Department of Health and Human Services; or
(3) the declarant has applied for free legal services for the case through a provider listed in (2) and was determined to be financially eligible but was declined representation.

(e) Motion to Require Payment of Costs. A motion to require the declarant to pay costs must comply with this paragraph.

(1) By the Clerk, the Reporter, or a Party. A motion filed by the clerk, the court reporter, or a party must contain sworn evidence—not merely allegations—either that the Statement was materially false when made or that because of changed circumstances, it is no longer true.
(2) By the Court. The court on its own may require the declarant to prove the inability to afford costs when evidence comes before the court that the declarant may be able to afford costs or when an officer or professional must be appointed in the case.

(f) Notice; Hearing; Requirements of Order. When a Statement has been filed, the declarant must not be ordered to pay costs unless these procedural requirements have been satisfied:

(1) Notice and Hearing. The declarant must not be required to pay costs without an oral evidentiary hearing. The declarant must be given 10 days’ notice of the hearing. Notice must either be in writing and served in accordance with Rule 21a or given in open court. At the hearing, the burden is on the declarant to prove the inability to afford costs.
(2) Findings Required. An order requiring the declarant to pay costs must be supported by detailed findings that the declarant can afford to pay costs.
(3) Partial and Delayed Payment. The court may order that the declarant pay the part of the costs the declarant can afford or that payment be made in installments. But the court must not delay the case if payment is made in installments.
(4) Order Must State Notice of Right to Appeal. An order requiring the declarant to pay costs must state in conspicuous type: “You may challenge this order by filing a motion in the court of appeals within 10 days after the date this order is signed. See Texas Rule of Civil Procedure 145.”

(g) Review of Trial Court Order.

(1) Only Declarant May Challenge; Motion. Only the declarant may challenge an order issued by the trial court under this rule. The declarant may challenge the order by motion filed in the court of appeals with jurisdiction over an appeal from the judgment in the case. The declarant is not required to pay any filing fees related to the motion in the court of appeals.
(2) Time for Filing; Extension. The motion must be filed within 10 days after the trial court’s order is signed. The court of appeals may extend the deadline by 15 days if the declarant demonstrates good cause for the extension in writing.
(3) Record. After a motion is filed, the court of appeals must promptly send notice to the trial court clerk and the court reporter requesting preparation of the record of all trial court proceedings on the declarant’s claim of indigence. The court may set a deadline for filing the record. The record must be provided without charge.
(4) Court of Appeals to Rule Promptly. The court of appeals must rule on the motion at the earliest practicable time.

(h) Judgment. The judgment must not require the declarant to pay costs, and a provision in the judgment purporting to do so is void, unless the court has issued an order that complies with (f), or the declarant has obtained a monetary recovery, and the court orders the recovery to be applied toward payment of costs.

(i) Court to Designate Record. When the declarant requests preparation of the reporter’s record, the court must designate the portions to be transcribed.

Official Notes and Commentary

Comment to 1988 change: The purpose of this rule is to allow indigents to file suit and have citation issued based solely on an affidavit of indigency filed with the suit.

Comment- 2005: The rule is amended to prohibit the contest of an affidavit that is accompanied by an attorney’s IOLTA certificate.

Comment to 2016 Change: The rule has been rewritten. Access to the civil justice system cannot be denied because a person cannot afford to pay court costs. Whether a particular fee is a court cost is governed by this rule, Civil Practice and Remedies Code Section 31.007, and case law.

The issue is not merely whether a person can pay costs, but whether the person can afford to pay costs. A person may have sufficient cash on hand to pay filing fees, but the person cannot afford the fees if paying them would preclude the person from paying for basic essentials, like housing or food. Experience indicates that almost all filers described in (e)(1)-(3), and most filers described in (e)(4), cannot in fact afford to pay costs.

Because costs to access the system—filing fees, fees for issuance of process and notices, and fees for service and return—are kept relatively small, the expense involved in challenging a claim of inability to afford costs often exceeds the costs themselves. Thus, the rule does not allow the clerk or a party to challenge a litigant’s claim of inability to afford costs without sworn evidence that the claim is false. The filing of a Statement of Inability to Afford Payment of Court Costs—which may either be sworn to before a notary or made under penalty of perjury, as permitted by Civil Practice and Remedies Code Section 132.001—is all that is needed to require the clerk to provide ordinary services without payment of fees and costs. But evidence may come to light that the claim was false when made. And the declarant’s circumstances may change, so that the claim is no longer true. Importantly, costs may increase with the appointment of officers or professionals in the case, or when a reporter’s record must be prepared. The reporter is always allowed to challenge a claim of inability to afford costs before incurring the substantial expense of record preparation. The trial court always retains discretion to require evidence of an inability to afford costs.

Comment to 2021 Change: A number of changes have been made to reduce frivolous challenges to a Statement, which cost time and money, and to streamline proceedings. Former paragraph (c)(4) has been deleted. Paragraph (d) has been amended to clarify that proof of any listed criterion is prima facie evidence of the declarant’s inability to afford payment of costs.

Paragraph (e) has been amended to require that a contest by the court reporter satisfy the same conditions as a contest by the clerk or a party. New paragraph (i) requires that the trial court designate the portions of the reporter’s record to be transcribed for appeal.

The rule has also been amended to require in paragraph (f)(4) that an order requiring payment of costs include conspicuous notice of the declarant’s right to appeal.

To accommodate these substantive changes, some paragraphs have been rearranged and relettered or renumbered. Other clarifying and stylistic changes have been made.