Summary
suing State of Texas, Harris County, and various state officials for denying him free record on appeal
Summary of this case from Kastner v. Texas BoardOpinion
No. 01-08-00894-CV
Opinion issued May 7, 2009.
On Appeal from the 189th District Court Harris County, Texas, Trial Court Cause No. 2008-45366.
Panel consists of Justices JENNINGS, ALCALA, and HIGLEY.
MEMORANDUM OPINION
We dismiss this appeal for want of jurisdiction.
On October 3, 2008, in an interlocutory order, the trial court sustained a contest to an affidavit of indigence that appellant, Kristofer Thomas Kastner, filed pursuant to Texas Rule of Civil Procedure 145. On April 3, 2009, the Clerk of this Court sent appellant a notice letter advising him that the October 3, 2008 order he was appealing appeared to be an interlocutory one, not legally authorized to be appealed. In the letter, the Clerk advised appellant that the Court might dismiss the appeal for want of jurisdiction, unless, in a written response, he provided a meritorious explanation showing that the Court had jurisdiction of the appeal.
Appellant has filed a response. As authority that this Court has jurisdiction, appellant cites In re Arroyo, 988 S.W.2 737, 738-39 (Tex. 1998) for the proposition that the amended rules of appellate procedure provide an adequate means to challenge an order sustaining a contest to an affidavit of indigence. Appellant's reliance on Arroyo is misplaced. In Arroyo, the Texas Supreme Court approved appeal as the appropriate means to review an order sustaining a contest to an affidavit of indigence, specifically filed under Texas Rule of Appellate Procedure 20. See id. at 738. In such instances, there should be a final appealable trial court judgment. In the instant case, the affidavit of indigence in question was filed pursuant to Texas Rule of Civil Procedure 145. There is no final appealable judgment. Appellant is attempting to appeal an interlocutory order sustaining a contest to appellant's prejudgment, not postjudgment, affidavit of indigence.
The general rule, with a few mostly statutory exceptions, is that an appeal may be taken only from a final judgment. Kossie v. Smith, No. 01-08-00065-CV, 2009 Tex. App. LEXIS 1739 at *1 (Tex.App.-Houston [1st Dist.] March 9, 2009, no pet.) (mem. op.) (citing Lehmann v. Har-Con Corp. 39 S.W.3d 191, 195 (Tex. 2001)). Interlocutory orders may be appealed only if allowed by statute. Kossie, at *1(citing Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001)). The October 3, 2008 interlocutory order from which appellant has appealed is not an order that is made appealable by statute. See TEX. CIV. PRAC. REM. CODE ANN. § 51.014(a) (Vernon 2008). Thus, we lack subject-matter jurisdiction over the interlocutory order that Kastner has appealed. See Kossie at *2 (dismissing appeal of interlocutory order sustaining contest to affidavit of indigence); Kilsby v. Mid-Century Ins. Co. of Tex., No. 14-07-00981-CV, 2008 Tex. App. LEXIS 2380, (Tex.App. Apr. 3, 2008, no pet.) (memo op.) (dismissing appeal of interlocutory order sutaining challenge to affidavit of inability to pay costs); see also In re K. J. M., No. 02-08-038-CV, 2008 Tex. App. LEXIS 1924 (Tex.App.-Fort Worth Mar. 13, 2008, no pet.) (memo op.) (dismissing appeal of interlocutory order sustaining challenge to indigency affidavit and denying appointment of counsel to represent appellant in habeas challenge to order of contempt in child-support-enforcement action).
We dismiss the appeal for lack of subject-matter jurisdiction. Any pending motions are overruled as moot.