Kastner v. State of Texas (Tex.App.- Houston [1st Dist.] May 7, 2009)(per curiam) (affidavit of
indigence)
DISMISS APPEAL: Per Curiam
Before Justices Jennings, Alcala and Higley
01-08-00894-CV
Kristofer Thomas Kasnter v. The State of Texas; Harris County, Texas; Tommy Thomas; Saulo Aguilar;
Michael LeCompte and Deputy M. Reynaud
Appeal from 189th District Court of Harris County
Trial Court Judge:Hon. William R. Burke. Jr.
Opinion issued May 7, 2009
In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-08-00894-CV
____________
KRISTOFER THOMAS KASTNER, Appellant
V.
THE STATE OF TEXAS, HARRIS COUNTY, TEXAS; TOMMY THOMAS SAULO AGUILAR, MICHAEL
LECOMPTE AND DEPUTY M. REYNAUD, Appellees
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Cause No. 2008-45366
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.—Houston [14th Dist.] 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.
PER CURIAM
Panel consists of Justices Jennings, Alcala, and Higley.