Friday, September 4, 2009

Don't File Mandamus Petition Without Appendix


Appeals court's per curiam opinion on denial of relief makes clear that neither pro-se status nor alleged indigency exempts litigants from having to comply with formal requisites.

The record before this court does not contain a sworn copy of the discovery stay order about which relator complains. See Tex. R. App. P. 52.3(k)(1) (requiring the appendix to the petition for writ of mandamus to contain a certified or sworn copy of any order made the basis of the complaint).

A pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).

This court cannot review relator's complaint in the absence of the challenged order. Mandamus relief is an extraordinary remedy that issues only if the court clearly abused its discretion and the relator has no adequate remedy by appeal. In re Sw. Bell Tel. Co., 235 S.W.3d 619, 623 (Tex. 2007).

An appellate remedy is adequate when any benefits to mandamus review are outweighed by the detriments. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). We are to carefully balance jurisprudential considerations to determine when to use original mandamus proceedings to review the actions of lower courts. Id. at 136. Whether an appellate remedy is adequate so as to preclude mandamus review depends heavily on the circumstances presented. Id. at 137. Incidental pre-trial rulings are rarely subject to interlocutory review by an appellate court. See Abor v. Black, 695 S.W.2d 564, 566 (Tex. 1985).

Generally, appellate courts have considered the erroneous grant of a stay to be an incidental trial ruling for which there is an adequate remedy by appeal. See, e.g., In re Smart, 103 S.W.3d 515, 521 (Tex. App.-San Antonio 2003, orig. proceeding); see also In re Kastner, No. 01-09-00727-CV (Tex. App.-Houston [1st Dist.] Aug. 27, 2009) (orig. proceeding) (mem. op.)(denying relief from similar stay order).

When the 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. See Tex. Civ. Prac. & Rem. Code Ann. §13.001 (Vernon 2002). The court may make its determination and dismiss the action sua sponte, either before or after service. Id. §13.001(c).

The purpose of section 13.001 is to ensure that limited resources are employed as efficiently as possible to resolve arguable claims and that claims without merit are dismissed at an early stage in the proceedings. Black v. Jackson, 82 S.W.3d 44, 53 (Tex. App.-Tyler 2002, no pet.); Pedraza v. Tibbs, 826 S.W.2d 695, 698 (Tex. App.-Houston [1st Dist.] 1992, writ dism'd w.o.j.).

Thus, the legislature has provided a procedure for appellate review of indigence claims. In this case, relator has not demonstrated that an appeal is inadequate to review the trial court's ruling. We conclude that relator has not established that he is entitled to an extraordinary remedy.Accordingly, we deny relator's petition for writ of mandamus.


In Re Kastner (Tex.App..- Houston [14th Dist.] Sep. 3, 2009)(per curiam)(mandamus denied re indigency sought to be established with affidavit, discovery stay in the trial court) MOTION OR WRIT DENIED: Per Curiam Opinion Before Justices Brock Yates, Frost and Brown 14-09-00653-CV In Re Kristofer Thomas Kastner Appeal from 189th District Court of Harris CountyTrial Court Judge: Hon. William R. Burke. Jr.

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