      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00515-CV



                              Kristofer Thomas Kastner, Appellant

                                                  v.

                        Texas Board of Law Examiners, et al., Appellees


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
    NO. D-1-GN-08-001085, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Kristofer Thomas Kastner appeals from a district court order sustaining a contest to

his affidavit of inability to pay appellate costs. We will affirm the order.

                In April 2008, Kastner sued the State, the board of law examiners, and several of

the board’s present and former members, executive directors, and employees alleging they had

violated various constitutional and statutory requirements in refusing to issue him a law license,

despite his having passed the bar in 1999, based on the moral character and fitness requirement.1

Over the last decade, Kastner has litigated similar or related complaints—and similar claims to

indigent status in those proceedings—in numerous Texas state and federal courts.2 Responding to

       1
           See Tex. R. Gov. Bar Admis. IV.
       2
         See Kastner v. Texas Bd. of Law Exam’rs, 278 Fed. Appx. 346, 2008 U.S. App. LEXIS
10416 (5th Cir. 2008); Kastner v. Texas Bd. of Law Exam’rs, No. 07-CV-086-SS, 2007 U.S. Dist.
LEXIS 9030 (W.D. Tex. 2007); see also Kastner v. State, No. 01-08-00894-CV, 2009 Tex. App.
LEXIS 3150 (Tex. App.—Houston [1st Dist.] May 7, 2009, no pet. h.) (mem. op.) (suing
the suit that is at issue in this proceeding, appellees filed a plea to the jurisdiction, contending that

Kastner’s claims were barred because he had not yet exhausted his administrative remedies before

the board. On June 23, 2008, the district court granted the plea and rendered judgment dismissing

all of Kastner’s claims. On July 16, Kastner appealed from this judgment, and we docketed that

proceeding under Cause No. 03-08-00678-CV (the “main appeal”).

                 With his notice of appeal, Kastner filed in the district court an affidavit of inability

to pay appellate costs and a request for a free record. See Tex. R. App. P. 5, 20.1(a)-(d), 35.3(a)(2)

& (b)(3). Appellees timely filed a contest to Kastner’s affidavit of indigence, see Tex. R. App.

P. 20.1(e),3 and set the contest for hearing on July 24. On July 23, Kastner filed a response to the

contest. He also filed a motion requesting a hearing by telephone, representing that he would be

unable to attend the hearing in person because he lived in Houston and could not afford a bus ticket

to travel to Austin.4 The district court denied Kastner’s request to appear telephonically and

the hearing went forward as scheduled. At the conclusion of the hearing, the district court signed



State of Texas, Harris County, and various state officials for denying him free record on
appeal); Kastner v. Martin & Drought, Inc., No. 04-07-00342-CV, 2009 Tex. App. LEXIS 701
(Tex. App.—San Antonio Feb. 4, 2009, pet. filed) (mem. op.) (suing law firm for alleged
legal malpractice and breach of fiduciary duty in representing Kastner before board of
law examiners); Kastner v. Guttermax, No. 14-08-00506-CV, 2008 Tex. App. LEXIS 7731
(Tex. App.—Houston [14th Dist.] Oct. 9, 2008, no pet.) (mem. op.) (suing former employer for
alleged defamatory statements made to board of law examiners); Kastner v. Martin & Drought, Inc.,
No. 04-07-00342-CV, 2007 Tex. App. LEXIS 8626, at *5-9 (Tex. App.—San Antonio Oct. 31,
2007, pet. denied) (mem. op.) (in above suit against law firm, addressing Kastner’s claim of
indigence).
        3
         In fact, the copy of the contest in the clerk’s record was file-stamped on July 15—one day
before the district clerk filed the affidavit itself.
        4
            Kastner represented that the cost of the bus ticket was “$30.85 dollars each way.”

                                                    2
an order sustaining appellees’ contest to Kastner’s affidavit. Kastner then timely filed a notice of

appeal from the district court’s order sustaining the contest, which we docketed separately under the

above cause number (“this appeal”).5

                The test for determining indigence in the trial court is whether the applicant shows,

by a preponderance of the evidence, that he would be unable to pay the appellate costs, or a part

thereof, “if he really wanted to and made a good faith effort to do so.” Higgins v. Randall County

Sheriff’s Office, 257 S.W.3d 684, 686 (Tex. 2008) (quoting Pinchback v. Hockless, 164 S.W.2d

19, 20 (Tex. 1942)). Where a trial court sustains a contest, we review that determination for abuse

of discretion. Rodgers v. Mitchell, 83 S.W.3d 815, 818 (Tex. App.—Texarkana 2002, no pet.);

White v. Bayless, 40 S.W.3d 574, 576 (Tex. App.—San Antonio 2001, pet. denied); Arevalo

v. Millan, 983 S.W.2d 803, 804 (Tex. App.—Houston [1st Dist.] 1998, no pet.). A trial court abuses

its discretion when its decision is arbitrary, unreasonable, or without reference to any guiding rules or

legal principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000).

                Kastner, in substance, argues that the district court abused its discretion in sustaining

appellees’ contest because the evidence established that he was, in fact, indigent and unable to afford


        5
          In this appeal, consistent with the supreme court’s directives, Kastner has been permitted
to proceed without advance payment of costs, and the district clerk and court reporter have prepared
and filed the portions of the record necessary for us to review the order sustaining the contest. See
In re Arroyo, 988 S.W.3d 737, 738-39 (Tex. 1998).

            After filing his notice of appeal from the contest order, Kastner filed in this appeal a
second affidavit of indigence seeking exemption from advance payment of costs, accompanied by a
motion for extension of time to file it. See Tex. R. App. P. 20.1(c)(1), (3). This prompted appellees
to file a contest to the new affidavit. As Kastner’s additional affidavit was not required for him to
proceed without pre-payment of costs in this appeal, we dismiss as moot both his motion to extend
time to file the affidavit and appellees’ contest to the affidavit.

                                                   3
appellate court costs.6 Although Kastner did not present evidence at the hearing, the district court

stated on the record that, at Kastner’s request, it had considered his affidavit. Appellees also

introduced the affidavit into evidence at the hearing, along with copies of “supplemental inability

documents” Kastner had filed in this Court. Kastner’s affidavit, dated March 28, 2008, averred that

he earned approximately $2,000 per month gross and $1,947 net “working as a consumer interviewer

at the Gallup Organization,” that he had no other source of income, and that he was unmarried and

supported only himself. Kastner further stated that he owned “less than approximately $3,000 worth

of personal property,” that he did not own a car, and that his bank account was overdrawn, but that

he had “academic degrees . . . worth in excess of $150,000.” Kastner claimed monthly expenses

of $580 in rent, $51 for storage, $77 “to the State of Texas,” $40 for transportation, and $100-200

in food—and $50-70 in monthly “office expenses, including copies, postage, and supplies” related

to his pro se prosecution of the case. Kastner elaborated that “I am involved in other litigation and

owe over $350 to the Harris County clerk,” but that “I am currently operating” under indigent status

in both the United States District Court for the Western District of Texas and the Fifth Circuit.




       6
          Appellees have moved to dismiss both this appeal and the main appeal on grounds of
mootness. They attach a final order of the board, dated December 17, 2008, holding that Kastner
“does not possess the present good moral character or fitness required for admission to the practice
of law in Texas,” that his 1999 bar exam score was no longer valid, and that he would be permitted
to re-apply for admission and a re-determination of his moral character and fitness only after
two years had expired. We disagree that any possible implications of this order in the main appeal
moots the antecedent question, presented in this appeal, of whether Kastner is entitled to a free
record in the main appeal. Among other things, we would ultimately look to any record in the
main appeal in determining whether Kastner’s claims are, in fact, moot. Accordingly, we overrule
appellees’ motion to dismiss this appeal. In light of this, we also dismiss as moot the “request for
record” Kastner filed in this appeal in response to the dismissal motion. These rulings expressly do
not extend to the counterpart motions the parties filed in the main appeal, which remain pending.

                                                 4
Kastner emphasized, “I am pro se in these cases and my licensure case and work on them on my

weekends and in my spare time.”

                Kastner’s “supplemental inability documents” included pay stubs from late June and

early July 2008 reflecting that Kastner had worked between only 14.5 and 31 hours per week and

was also drawing unemployment benefits. Appellees also introduced into evidence a Fourth Court

of Appeals opinion that addressed one of Kastner’s attempts to proceed as an indigent before that

tribunal. Among other things, our sister court quoted hearing testimony in which Kastner admitted

he had reduced his work hours (and income) in order to work on his pro se lawsuits.7

                As our sister court concluded, “[t]here is evidence that Kastner, a law school

graduate, is voluntarily underemployed and could earn more money if he so desired” and that he

“does have disposable income each month from which he could make payments for the records.”8




       7
           Kastner, 2007 Tex. App. LEXIS 8626, at *5-9.

           Kastner has filed in this Court a “motion to supplement appellate record” with proof
of events subsequent to the order on appeal: (1) that in November 2008, another federal judge
allowed him to proceed as an indigent under the federal rules; (2) pay stubs purportedly
demonstrating that “he is still earning the same amount of money he has been earning,” and
(3) correspondence ostensibly demonstrating that he “has been looking for work in order to
increase his income.” We overrule the motion. See Brown v. Paris Indus. Found., 46 S.W.3d 321,
323 (Tex. App.—Texarkana 2001, pet. dism’d) (after appellant obtains trial court ruling on
indigent status, “[t]he Rules do not allow a party to come in at a later date and seek to be declared
indigent based on a change in circumstances.”). For the same reasons, we also overrule Kastner’s
July 20, 2009, “Motion to Dismiss Appeal,” in which he seeks to replace the indigence affidavit that
is the subject of this appeal with another updated version.
       8
           See id. at *8-9.

                                                 5
The district court did not abuse its discretion in sustaining appellees’ challenge to Kastner’s affidavit

of inability to pay costs in the main appeal.9

                Beyond this, Kastner urges that he was “entitled to attend and argue at the hearing,”

and that the district court deprived him of this right by refusing to permit him to participate

by telephone when he “was unable to attend the hearing due to his financial inability.” The record

reflects that Kastner had notice of the hearing and that the district court heard evidence—including

Kastner’s own affidavit—that he could have attended the hearing if he had wanted to. We also

observe that the Travis County Local Rules prohibited the district court from conducting the

evidentiary hearing on the contest by telephone. See Travis County Loc. R. 9.1.

                We affirm the district court’s order sustaining appellees’ contest to Kastner’s

affidavit of inability to pay costs in the main appeal.




                                                 __________________________________________

                                                 Bob Pemberton, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: August 12, 2009




        9
           Also, while appellees have not raised the issue, we note that Kastner failed to obtain
the findings required by 13.003(a) of the civil practice and remedies code in order to obtain a
free appellate record. See Tex. Civ. Prac. & Rem. Code Ann. § 13.003(a) (West 2002); Schlapper
v. Forest, 272 S.W.3d 676, 677-78 (Tex. App.—Austin 2008, pet. denied).

                                                   6
