¶1dissenting.
¶2I respectfully dissent. I cannot fathom how, under the mandate of the majority, a good faith litigant could ever sustain the burden of proving his inability to pay the cost of an appeal. As I understand the majority opinion, the trial court may base his judgment of relator’s ability to pay for the record by taking judicial notice of the very record that petitioner is unable to purchase and we are unable to review. The relator, in order to resolve this catch-22 problem, must provide this court with the remedy that she is seeking (the record) in order to prove entitlement to the remedy (again, the record).
¶3Majority, seeing the basic flaw in their reasoning, attempts a band-aid approach as a solution. More particularly, they thoughtfully conclude that relator may present affidavits that contradict the trial record, although there is no trial record, nor is there any other indication of what facts the court took judicial notice. Disputing this judicial notice by affidavit appears somewhat difficult, especially if one applies a general rule of judicial notice of related proceedings that the trial judge “may be presumed to have done so, whether or not he had formally announced that he was taking judicial notice.” Vahlsing, Inc. v. Missouri Pacific Railroad Co., 563 S.W.2d 669, 674 (Tex.Civ.App. — Corpus Christi 1978, no writ). This would require that we guess beyond the record of the contest hearing and presume that the trial court had sufficient evidence during the trial to justify his decision.
¶4An additional problem appears when one applies the majority’s “affidavit” solution to an abuse of discretion standard of review. Under this standard, if there is some evidence of substantive and probative character, an appellate court may not find that the trial court abused its discretion, Stout v. Christian, 593 S.W.2d 146, 151 (Tex.Civ.App. — Austin 1980, no writ). In the present case, the trial court took judicial notice of two physician’s testimony. Under the reasoning of the majority, even if our relator had supplied affidavits, without the trial record to review we must presume that the trial court based his sound discretion upon judicial notice of other evidence unknown to us. Certainly, if there was a conflict between her affidavit and sworn testimony in the trial, the trial judge has the discretion to believe the trial testimony.
¶5I would hold that the speculation be eliminated and our judgment be based solely on the record of the hearing contesting the affidavit in support of her inability to pay. If the uncontroverted testimony in the contest hearing proves relator’s inability to pay, then I would hold that the party contesting the affidavit to prevail, must present evidence showing an ability to pay.
¶6Normally the party who is claiming that the court abused its discretion has the burden to bring forth the record on appeal, Hardin v. Hardin, 597 S.W.2d 347 (Tex.1980); Lubbock Mfg. Co. v. Perez, 591 S.W.2d 907 (Tex.Civ.App. — Waco 1979, no writ). Relator did, in fact, bring forth the record of the contest hearing. I would hold, however, in a suit contesting relators ability to pay for the record, a silent record should not be determinative of an appeal in forma pauperis. Galvan v. United States Fire Ins. Co., 629 S.W.2d 209, 212 (Tex.App.-Amarillo 1982, writ ref’d n.r.e.) If a party depends upon judicial notice of another proceeding to support his position, then it should be that party’s burden to come forward with the record supporting that judicial notice to supplement the appellate record. Cf. Serna v. Reyna, 418 S.W.2d 701, 703 (Tex.Civ.App. — Corpus Christi 1967, no writ).
¶7*546I further disagree with the majority’s interpretation of the merits of relator’s proof. The majority describes relator’s claim to a right of free appeal as “based on her unsupported assertion that she is unable to work.” Citing no authority, majority fails to explain why uncorroborated testimony by relator that she is unable to work, when unquestioned and unimpeached in the record, is insufficient to support her claim. I further distinguish the “parallel” case of Tubbs v. Coker, 401 S.W.2d 272 (Tex.Civ.App. — Houston 1966, no writ) from the present case because in Tubbs, relator received a monthly payment, albeit a “loan,” from a relative which could be spent, presumably, at relators discretion. Also, she had recently received a “substantial” sum of money as a result of an automobile accident. In the present case, relator’s son and daughter pay her bills and buy her groceries, rather than give her money to spend at her discretion.
¶8The record before us reveals that relator cannot pay the cost of appeal. I would therefore grant the relator’s petition for writ of mandamus.