in Re John P. Ross , 2012 Tex. App. LEXIS 8117 ( 2012 )

Opinion issued September 27, 2012
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00469-CV
———————————
IN RE JOHN P. ROSS, Relator
Original Proceeding on Petition for Writ of Mandamus
OPINION
Relator, John P. Ross, has filed a petition for writ of mandamus, challenging
the trial court’s order sustaining a contest to his Affidavit of Inability to Pay
Costs.1
A trial court’s order sustaining a district clerk’s contest to an affidavit of
indigence is generally an interlocutory order for which there is no right of appeal.
1
The underlying trial court case is styled Ross v. Ross, in the 309th District Court,
Harris County, Texas, No. 2012-18195, the Honorable Sheri Dean presiding.
Jackson v. North Forest Indep. Sch. Dist., No. 01–10–00010–CV, 2012 WL
246052, at *3 n.7 (Tex. App.—Houston [1st Dist.] Jan. 26, 2012) (“Prior to the
entry of this final dismissal order, the trial court had not entered an appealable
order.”) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a) (Vernon Supp.
2011)); Jones v. Perez, No. 01–11–00669–CV, 2011 WL 6147787, at *1 (Tex.
App.—Houston [1st Dist.] Dec. 8, 2011, no pet.) (mem. op.) (“The trial court’s
order sustaining the district clerk’s contest to appellant’s affidavit of indigence is
an interlocutory order. Appellant cites no authority, and we have found none,
providing for an interlocutory appeal to be taken from this order.”); see also
Yarbrough v. Tex. Bd. of Pardons and Paroles, No. 01–10–00335–CV, 2011 WL
3839712, at *1 (Tex. App.—Houston [1st Dist.] Aug. 25, 2011, no pet.) (mem. op.)
(“We may review a challenge to an order sustaining a contest to an affidavit of
indigence only when it is made as part of a pending appeal from a final judgment
or other appealable order.”); Aguilar v. Tex. La Fiesta Auto Sales LLC, No. 01–08–
00653–CV, 2009 WL 1562838, at *l–2 (Tex. App.—Houston [1st Dist.] June 4,
2009, no pet.) (mem. op.) (dismissing appeal of order sustaining contest to
affidavit of indigence for trial court costs). However, if the trial court ultimately
dismisses Ross’s lawsuit, he will then be able to appeal the trial court’s order
sustaining the contest to his affidavit of inability. Jackson, 2012 WL 246052, at
*3.
2
We do not hold that an order sustaining a contest would never be reviewable
by mandamus, although we note that our sister court has generally indicated that
such review is not available. See In re Kastner, No. 14–09–00653–CV, 2009 WL
3401867, at *1–2 (Tex. App.—Houston [14th Dist.] Sep. 3, 2009, orig. proceeding
[mand. denied]) (stating that when “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” and, thus, “legislature has provided a procedure for appellate
review of indigence claims” and relator had failed to demonstrate that appeal was
inadequate); see also Aguilar, 2009 WL 1562838, at *1 n.1 (stating that we
“express[ed] no opinion about whether the trial court’s order [was] reviewable by
petition for a writ of mandamus”). Rather, we conclude that nothing in the record
before us demonstrates that Ross lacks an adequate remedy by appeal or that
mandamus relief is warranted. Accordingly, we deny the petition for writ of
mandamus.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
3