Justice Green Dissenting in
Higgins v. Randall County's Sheriff's Office (Tex. 2008)
(Majority Opinion by Harriet O'Neill)
(pro se inmate may proceed with appeal notwithstanding incomplete affidavit of indigence, which was not
Justice Paul Green, by contrast, would strictly enforce requirements for affidavit
of indigence even if uncontested:
I would hold that the court of appeals did not abuse its discretion by dismissing this
appeal because Higgins’s affidavit of indigence was defective on its face, and because
Higgins was given a reasonable opportunity to correct his affidavit of indigence and
failed to do so. Because the Court does not, I respectfully dissent.
Higgings v. Randall County Sheriff's Office (Higgins II), No. 06-0917 (Tex. May 16, 2008)(Opinion by Harriet
LAWRENCE HIGGINS v. RANDALL COUNTY SHERIFF'S OFFICE; from Randall County; 7th district (07-05-
00004-CV, ___ S.W.3d ___, 08-22-06)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Brister,
and Justice Medina joined.
Justice Green delivered a dissenting opinion, in which Justice Wainwright and Justice Willett joined.
(Justice Johnson not sitting)
Terms: pro se litigants | inmate suits | prisoner litigation | access to courts | right to appeal | inability to pay filing
fees, court costs on appeal | uncontested but incomplete affidavit of indigence | in forma pauperis | IFP |
Green Dissent in Higgins v. Randall County's Sheriff's Office (Tex. 2008)
As the Court endorses Higgins’s conclusory assertions of his inability to pay costs, id. at
___, it fails to recognize the critical omissions in his affidavit. Higgins’s affidavit says
nothing about his spouse’s income, nothing about real or personal property, nothing
about other assets, nothing about dependants, nothing about debts, nothing about
monthly expenses, nothing about the ability to obtain a loan, and nothing about an
attorney. See Tex. R. App. P. 20.1(b)(2), (b)(3), (b)(5)–(11). Yet under the Court’s rule,
Higgins could have three yachts, a millionaire spouse, and two parents who would
gladly loan him the money, while still proceeding as an indigent. Rule 20.1(b) stands for
the proposition that an accurate indigence inquiry always requires all of the Rule 20.1(b)
information. Without it, neither we nor the potential contestants can conduct a
meaningful evaluation of the litigant’s indigence. Even if “‘common sense’ supports the
notion that an incarcerated individual is highly unlikely to qualify for loans,” ___ S.W.3d
at ___ (quoting Higgins, 193 S.W.3d at 900), no part of our jurisprudence recognizes an
inmate exception to Rule 20.1. Instead, we require individualized determinations
precisely because assumptions and likelihoods are inaccurate predictors of actual need.
See Gibson v. Tolbert, 102 S.W.3d 710, 713 (Tex. 2003). “[I]f the courts allow the
privilege granted [by the indigent cost rules] to be abused by those who, in fact, ought to
pay, this may lead to the abolition of the exemption.” Pinchback v. Hockless, 164 S.W.
2d 19, 20 (Tex. 1942). Under Rule 20.1, courts ought not make the choice of whether to
challenge the claim of indigence, but they ought to be able to ensure that the choice
belonging to the contestants is a meaningful one.
The Court’s decision today changes the balance struck by Rule 20.1 and departs from
the Rule’s clear mandates. We ought not overrule Higgins and Hood less than two
years after their issuance. I would hold that the court of appeals did not abuse its
discretion by dismissing this appeal because Higgins’s affidavit of indigence was
defective on its face, and because Higgins was given a reasonable opportunity to
correct his affidavit of indigence and failed to do so. Because the Court does not, I