                                       IN THE
                               TENTH COURT OF APPEALS



                                        No. 10-17-00245-CV

                                 EX PARTE ULLJA KUNTZE


                                       Original Proceeding



                                             OPINION

        Ullja Kuntze has challenged the trial court’s determination that she is not unable

to pay court cost.        TEX. R. CIV. P. 145.1         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.




1
 The Court has already determined Kuntze is unable to pay appellate court cost in this proceeding. TEX.
R. CIV. P. 145(g) (“The declarant is not required to pay any filing fees related to the motion in the court of
appeals.”).
145(g). The design of the rule clearly anticipates that the “motion” will normally be

reviewed by an appellate court while the proceeding remains pending in the trial court.

Therefore, 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.2 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

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 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 filed a “motion,” as described by the rule, the Court filed the

notice of appeal in the same docket number as 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




2
 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
mandamus proceeding. This issue has not yet been addressed by any party, and based

on our disposition herein, it is irrelevant.

       The Court then questioned whether it had jurisdiction of the proceeding due to an

entirely different concern. As an appeal, for which our jurisdiction 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 because normally, the motion would be filed while the

trial court proceeding remained pending in the trial court.

       The Court questioned whether the Texas Supreme Court, by rule, may authorize

an interlocutory appeal and give an intermediate appellate court jurisdiction to review

an interlocutory order as a separate appellate court proceeding. Additionally, the Court

questioned whether, in the procedural posture of this particular proceeding, the Court

had 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, we acknowledged certain difficulties in our ability to review the trial court’s

ruling via 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 and of which the legislature has given this intermediate appellate


Ex parte Kuntze                                                                      Page 3
court jurisdiction. See TEX. GOV’T CODE ANN. § 22.221 (West 2013). Thus, the Court

questioned whether the “motion” was an original proceeding over which the legislature

had given this Court jurisdiction, as well as the alternative of whether the Texas Supreme

Court had the authority to give this Court jurisdiction to review the order via a “motion”

filed in this Court by way of an original proceeding.

       Based on the nature of the issue, the Court invited responses from Kuntze, the real

parties in interest, the trial court clerk and reporter, as well as the trial court judge.

       Kuntze responded but provided no authority or support for the argument that this

court has jurisdiction, either as a separate appeal or as an original proceeding, over her

complaint that the trial court erred in its determination that Kuntze is not unable to pay

court cost.

       Accordingly, because the Court has determined that it does not have jurisdiction,

this proceeding is dismissed.



                                            TOM GRAY
                                            Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Proceeding dismissed
Opinion delivered and filed August 29, 2018
OT06




Ex parte Kuntze                                                                              Page 4
