Advocates for the poor are asking the Texas Supreme Court to revise a rule regarding indigency court affidavits following concerns about inconsistencies in how it is being enforced throughout the state.
The Texas Access to Justice Commission issued a report in May calling for an overhaul of what is known as Rule 145 when questions were raised about how court officials were collecting fees from the poor even after their cases had been resolved.
Those concerns were highlighted again this month when the 2nd Court of Appeals in Fort Worth cleared the way for Tarrant County District Clerk Tom Wilder to collect fees from poor litigants even though it had been determined that they could not afford attorneys and court costs.
“The poor don’t have a mechanism to get into court; it creates an imbalance of power,” said Trish McAllister, executive director of the Texas Access to Justice Commission, which was created by the Supreme Court to address the disparities faced by the poor in the courts.
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“This is not just something that our courts should be concerned about. Our lawyers and communities should also be concerned,” she said.
The commission’s report described how some of the state’s district clerks removed the indigency affidavit forms from divorce form packets, or that clerks contested each affidavit, thus delaying cases. Some clerks also contested affidavits when the person was represented by a legal aid attorney and had proof that they had met income guidelines qualifying them for indigency status.
Attorneys representing the seven Tarrant County residents who sued Wilder say they will appeal the recent ruling — which stated that a trial court did not have the jurisdiction to stop Wilder — and said they are anxious about the poor having equal access to the courts.
When Wilder was sued, the residents described receiving letters about collecting the fees that they said included intimidating language. But Wilder said he cannot change what is in the final court order and said the “intimidating” language was written by legislators.
He also accused the advocates for the poor of using him as a “poster child” to get publicity and to influence the Supreme Court to revise the rule.
“The language is verbatim from the statutes,” Wilder said. “I’m amazed that [attorneys representing the residents who filed the lawsuits] would come after me when we are not the first county” to collect court costs from those with indigency affidavits.
Wilder also argued that it can be difficult to get information from people who have submitted indigency affidavits, such as a change in job status. He also described uncovering three scams involving people who had the income but who did not want to pay.
Advocates acknowledge that problems exist, but the poor still face barriers when it comes to accessing the court system, and the rule needs to be clarified.
Shelby Jean, communications director for Legal Aid of Northwest Texas, which represented four Tarrant County residents who sued Wilder, said that Wilder was not being “singled out.”
“We’re sorry that Mr. Wilder feels like we’re coming after him, but we’re dealing with [problems with indigency affidavits] wherever we see it,” she said.
Jean added that the rule is often “batted around” by some judges, district and county clerks who push back against the rule in different ways, she said.
Access to Justice hopes that modifying the rule it would clarify procedures for court officials while allowing those who are indigent to access the courts
Some recommendations include not requiring the person to pay court costs unless the court found that the person was able to pay during the final hearing. The proposal was added to counter the “boilerplate language — often found in the do-it-yourself divorce forms used by people who can’t afford an attorney — saying that each party is responsible for paying their own costs and clerks interpreting that language as a judgment allowing them to collect from indigents.”