IN THE
TENTH COURT OF APPEALS
No. 10-17-00245-CV
EX PARTE ULLJA KUNTZE
Original Proceeding
ORDER
Ullja Kuntze has challenged the trial court’s determination that she is not unable
to pay court cost. She first filed a motion with supporting documentation which
explained her complaint about the trial court’s determination. Because she had already
appealed an adverse judgment on the merits of the underlying proceeding, Kuntze put
the docket number for the direct appeal on her motion (10-17-00225-CV). The Texas Rules
of Civil Procedure, however, specify that this Court will review that determination upon
the filing of a “motion” with this Court. TEX. R. CIV. P. 145(g). Additionally, and because
the design of the rule clearly anticipates that the “motion” will normally be reviewed
while the proceeding remains pending in the trial court, this Court filed the “motion”
and assigned a different docket number to it (10-17-00245-CV) rather than filing the
“motion” in the pending proceeding for which the appeal of the merits had already been
filed.1 We characterized the “motion” pursuant to Rule 145 (g)(1), as an original
proceeding because we had not fully determined the nature of the proceeding but noted
that it had certain characteristics of an original proceeding, possibly even a mandamus
proceeding.
As indicated, Rule 145 implies that upon the filing of the “motion,” this Court will
proceed to review the determination of the trial court that a litigant is not unable to pay
court cost. The rule does not specify the need for a notice of appeal to invoke our
jurisdiction to conduct this review. Id. Nevertheless, Kuntze subsequently filed a notice
of appeal specifically to complain about the trial court’s determination that she was not
unable to pay court cost. Realizing that Kuntze had already filed a “motion,” as described
by the rule, the Court filed the notice of appeal in the same docket number as the Court
has filed the “motion” which makes the same complaint.
The Court had previously questioned its jurisdiction in this proceeding based on
the lack of a written order. That issue may be important in the event this is considered an
appeal, but a docket notation may be adequate if this proceeding is more akin to a
mandamus proceeding. This issue has not yet been addressed by any party.
The Court now additionally questions whether it has jurisdiction of this
proceeding due to an entirely different concern. As an appeal, for which our jurisdiction
1
There was some initial confusion about where to file the motion but ultimately it was filed in a separate
proceeding from the direct appeal. Other issues were raised in the motion so it was also filed in the direct
appeal.
Ex parte Kuntze Page 2
could possibly be based on either (1) the notice of appeal or (2) the “motion,” our review
would normally be as in an interlocutory appeal. It would normally be an interlocutory
appeal because the rule presumes the underlying trial court proceeding would remain
pending while the issue of the ability of a litigant to pay cost, including the filing fee, is
determined. On this presumption, the Court has what would be an interlocutory order
that is to be reviewed on the filing of the “motion” required by the rule.
The Court questions whether the Texas Supreme Court, by rule, may authorize an
interlocutory appeal and give an intermediate appellate court jurisdiction to review such
an order that is not part of a direct appeal. Additionally, the Court questions whether, in
the procedural posture of this proceeding, the Court has jurisdiction to review the
“motion” as an independent appeal, interlocutory or not, based on Texas Rule of
Appellate Procedure 12.2(c), which requires the clerk to assign the same docket number
to each notice of appeal from the same trial court proceeding. TEX. R. APP. P. 12.2(c). But
see Windsor v. Round, 532 S.W.3d 825 (Tex. App.—Waco 2014, order) (court recognizes
instances when separate proceedings are docketed from the same trial court proceeding).
Alternatively, if the Court properly docketed the “motion” as an original
proceeding, it is difficult to review this ruling on the “motion” which does not fit the
traditional format, either substantively or procedurally, of a petition for writ of
mandamus or any other original proceeding of which we are aware. Thus, the Court
questions whether it is an original proceeding over which the legislature has given this
Court jurisdiction, as well as the alternative of whether the Texas Supreme Court has the
authority to give this Court jurisdiction to review the order via a “motion” filed in this
Ex parte Kuntze Page 3
Court by way of an original proceeding.
Therefore, the Court questions whether it has jurisdiction of this proceeding as
well as what the proper characterization of this proceeding is and the manner in which
the Court is to review the ruling at issue. Any party to this proceeding, the trial court
clerk and court reporter, or the trial court may file a response that addresses this Court’s
jurisdiction. The response, if any, must be filed within 21 days from the date of this order.
Any of the designated persons may file a reply to any other designated person’s response
within 7 days of the date the response is filed.
If a response is not filed which explains how this Court has jurisdiction to review
the “motion” as described herein, this proceeding will be dismissed.
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Response requested
Order issued and filed June 27, 2018
Ex parte Kuntze Page 4