In Re Kastner (Tex.App..- Houston [14th Dist.] Sep. 3, 2009)(per curiam)
(mandamus denied re indigency sought to be established with affidavit, discovery stay in the trial court)
MOTION OR WRIT DENIED: Per Curiam Opinion
Before Justices Brock Yates, Frost and Brown
14-09-00653-CV In Re Kristofer Thomas Kastner
Appeal from 189th District Court of Harris County
Trial Court Judge: Hon. William R. Burke. Jr.
M E M O R A N D U M O P I N I O N
Relator, Kristofer Thomas Kastner, has filed a petition for writ of mandamus in this court. See Tex. Gov't
Code Ann. § 22.221 (Vernon 2004); see also Tex. R. App. P. 52. In the petition, relator asked this court to
compel the Honorable William R. Burke, Jr., presiding judge of the 189th District Court of Harris County, to
lift the order staying discovery and set a hearing on relator's amended affidavit of indigence.
Relator filed suit against The Kroger Company, and its manager, Melinda Coombs over one year ago, on or
about July 28, 2008, in cause number 2008-45365 in the 189th District Court. According to relator, his
petition was accompanied by an affidavit of indigence, which is not included in the record filed with this
petition. According to relator, the trial court sustained a contest to relator's affidavit by order signed
October 3, 2008. The order sustaining the contest is also not a part of this mandamus record. Relator
attempted to bring an interlocutory appeal of that order, but the appeal was dismissed for want of
jurisdiction. See Kaster v. The Kroger Co., No. 14-08-01001-CV, 2009 WL 943941 (Tex. App.-Houston
[14th Dist.] April 9, 2009, pet. filed).
Relator asserts that he has filed amended affidavits of indigency on June 19, 2009, and July 13, 2009, but
the trial court has not considered the amended affidavits. Relator asserts that the trial court has ordered
discovery stayed, and therefore, no contest to the amended affidavits may be filed during the abatement
period. The record before this court does not contain a sworn copy of the discovery stay order about which
relator complains. See Tex. R. App. P. 52.3(k)(1) (requiring the appendix to the petition for writ of
mandamus to contain a certified or sworn copy of any order made the basis of the complaint). A pro se
litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules
of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). This court cannot
review relator's complaint in the absence of the challenged order.
Mandamus relief is an extraordinary remedy that issues only if the court clearly abused its discretion and
the relator has no adequate remedy by appeal. In re Sw. Bell Tel. Co., 235 S.W.3d 619, 623 (Tex. 2007).
An appellate remedy is adequate when any benefits to mandamus review are outweighed by the detriments.
In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). We are to
carefully balance jurisprudential considerations to determine when to use original mandamus proceedings
to review the actions of lower courts. Id. at 136. Whether an appellate remedy is adequate so as to
preclude mandamus review depends heavily on the circumstances presented. Id. at 137.
Incidental pre-trial rulings are rarely subject to interlocutory review by an appellate court. See Abor v.
Black, 695 S.W.2d 564, 566 (Tex. 1985). Generally, appellate courts have considered the erroneous grant
of a stay to be an incidental trial ruling for which there is an adequate remedy by appeal. See, e.g., In re
Smart, 103 S.W.3d 515, 521 (Tex. App.-San Antonio 2003, orig. proceeding); see also In re Kastner, No.
01-09-00727-CV (Tex. App.-Houston [1st Dist.] Aug. 27, 2009) (orig. proceeding) (mem. op.)(denying relief
from similar stay order).
When the trial court has sustained a contest to an affidavit of indigence filed pursuant to Texas Rule of Civil
Procedure 145, the court typically dismisses the case, finding the allegation of poverty is false and/or the
case is frivolous. See Tex. Civ. Prac. & Rem. Code Ann. §13.001 (Vernon 2002). The court may make its
determination and dismiss the action sua sponte, either before or after service. Id. §13.001(c). The
purpose of section 13.001 is to ensure that limited resources are employed as efficiently as possible to
resolve arguable claims and that claims without merit are dismissed at an early stage in the proceedings.
Black v. Jackson, 82 S.W.3d 44, 53 (Tex. App.-Tyler 2002, no pet.); Pedraza v. Tibbs, 826 S.W.2d 695, 698
(Tex. App.-Houston [1st Dist.] 1992, writ dism'd w.o.j.).
Thus, the legislature has provided a procedure for appellate review of indigence claims. In this case, relator
has not demonstrated that an appeal is inadequate to review the trial court's ruling.
We conclude that relator has not established that he is entitled to an extraordinary remedy.
Accordingly, we deny relator's petition for writ of mandamus.
PER CURIAM
Panel consists of Justices Yates, Frost and Brown.