                                  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
