BARNES, P. J., MCMILLIAN and REESE, JJ.
Lee seeks review of the trial court's order denying his
request to proceed in forma pauperis in a civil action he
intends to file. Lee contends that the trial court erred in
denying his request without conducting a hearing, because no
one filed a traverse contesting the truth of his affidavit of
poverty. For the reasons set forth, infra, we reverse and
remand this case for a hearing on Lee's request.
record shows the following undisputed facts. Lee filed an
affidavit of eligibility to proceed in forma pauperis, proof
of his inmate account balance, and his proposed civil
complaint. According to these documents, Lee had no assets
except for the seven cents in his inmate account. There is no
traverse contesting the truth of Lee's affidavit of
poverty in the record. Even so, without conducting a hearing,
the trial court found as a matter of fact that Lee was not
indigent to the extent that he should be allowed to proceed
in forma pauperis.
procedures to be followed by the trial court when a party
seeks to avoid paying court costs due to his or her indigence
are outlined in OCGA § 9-15-2. OCGA § 9-15-2 (a)
(1) provides as follows:
When any party, plaintiff or defendant, in any action or
proceeding held in any court in this state is unable to pay
any deposit, fee, or other cost which is normally required in
the court, if the party shall subscribe an affidavit to the
effect that because of his indigence he is unable to pay the
costs, the party shall be relieved from paying the costs and
his rights shall be the same as if he had paid the costs.
"[a]ny other party at interest or his agent or attorney
may contest the truth of an affidavit of indigence by
verifying affirmatively under oath that the same is
untrue." In such a case, the question of the
plaintiff's indigence "shall be heard and determined
by the court, under the rules of the court[, ]" and
"[t]he judgment of the court on all issues of fact
concerning the ability of a party to pay costs or give bond
shall be final." Thus, under OCGA § 9-15-2 (a) (2), if
another party disputes the party's status as indigent and
that dispute is resolved by the trial court, the court's
decision is typically not entitled to appellate
Court has concluded, however, that, even though a trial
court's factual determination of whether a party
is indigent is not subject to appellate review, this Court is
authorized to review the procedure used by the trial
court when making an indigence ruling. Here, Lee argues
that the trial court erred when it denied his request to
proceed in forma pauperis without holding a hearing, as
required by OCGA § 9-15-2 (b). OCGA § 9-15-2 (b)
provides as follows:
In the absence of a traverse affidavit contesting the truth
of an affidavit of indigence, the court may inquire into the
truth of the affidavit of indigence. After a
hearing, the court may order the costs to be paid if it
finds that the deposit, fee, or other costs can be paid and,
if the costs are not paid within the time permitted in such
order, may deny the relief sought.
"the plain language of [OCGA § 9-15-2 (b)] requires
a hearing before a court may order costs to be
paid." Stated differently, "there is nothing
in the statute that allows a court inquiring on its own into
the truth of a pauper's affidavit to order the payment of
court costs without a hearing." It follows that,
"without a traverse or a hearing, [Lee's] affidavit[
] stand[s] unrebutted in the record, and [Lee] should have
been relieved from paying costs without any adverse impact on
[his] right[ ] to pursue a legal remedy."
the trial court erred in failing to conduct a hearing on
Lee's claim of indigence. We reverse the order and
remand this case to the trial court for an evidentiary
hearing on the question of Lee's indigence.
reversed, and case remanded with direction.
Barnes, P. J., and ...