In Re: John Gossett--Appeal from 241st District Court of Smith County

NO. 12-04-00366-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: JOHN GOSSETT ORIGINAL PROCEEDING

MEMORANDUM OPINION

On November 15, 2004, Relator John Gossett sent a letter to the Smith County District Clerk inquiring whether process had been issued in his pending personal injury suit. By written, unsigned response, Gossett was informed that process had not been issued because the trial court had not ruled on Gossett s affidavit of inability to pay costs. See Tex. R. Civ. P. 145. In this original proceeding, Gossett seeks an order requiring the Honorable Jack Skeen, Jr., Respondent, to rule on the affidavit. We deny the writ.

Texas Rule of Civil Procedure 145 permits a party who is unable to afford court costs to file an affidavit of inability to pay costs. Tex. R. Civ. P. 145. A defendant may contest the affidavit by filing a written contest giving notice to all parties. Tex. R. Civ. P. 145(1). If the affidavit is contested, the court should resolve the contest at the first regular hearing in the suit. Id. If a contest is not filed, the uncontested affidavit is conclusive as a matter of law. Equitable Gen. Ins. Co. v. Yates, 684 S.W.2d 669, 671 (Tex. 1984). Here, the record does not reflect that Gossett s affidavit was contested. Therefore, Respondent had no duty to sign a written order permitting Gossett s lawsuit to proceed. // Accordingly, the writ of mandamus of denied.

DIANE DEVASTO

Justice

Opinion delivered December 8, 2004.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

(PUBLISH)