Thomas A. Wilder, District Clerk v. Odell Campbell, Thomas Ray Robertson, Shawnta Renea Coleman, Scott Wiernik, Tairhonda McAfee, Marybeth Lynn Jewell, and Diana J. Najera

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-13-00146-CV

THOMAS A. WILDER, DISTRICT APPELLANT
CLERK

V.

ODELL CAMPBELL, THOMAS RAY APPELLEES
ROBERTSON, SHAWNTA RENEA
COLEMAN, SCOTT WIERNIK,
TAIRHONDA MCAFEE, MARYBETH
LYNN JEWELL, AND DIANA J.
NAJERA

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FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

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DISSENTING OPINION

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I respectfully dissent. The trial court had jurisdiction to grant the temporary

injunction against the district clerk to stay his attempts to tax and collect court

costs from Appellees and other persons similarly situated. It is undisputed, and

the majority acknowledges, that each Appellee filed an affidavit of indigence with
their petitions, that all of their affidavits were uncontested, and that Appellees

were thus entitled to proceed in their divorce actions without payment of costs

pursuant to rule 145. 1

Texas Rule of Civil Procedure 145, which prescribes the procedure to be

followed for indigent parties to be able to proceed in the trial courts without

payment of costs, was adopted “to protect the weak against the strong, and to

make sure that no man should be denied a forum in which to adjudicate his rights

merely because he is too poor to pay the court costs.” Pinchback v. Hockless,

139 Tex. 536, 538, 164 S.W.2d 19, 19–20 (1942).

Legal aid and pro bono programs are able to help only an estimated twenty

percent of the six million Texans who qualify for legal aid and pro bono services

in civil matters. 2 In particular, the vast majority of pro se petitioners are in family

law cases. 3 In response to the problems regarding rule 145, including the one

1
In one of these cases, the district clerk initially contested the affidavit of
indigence but withdrew the contest before a hearing took place.
2
“Significant decreases in funding to legal aid programs from reduced
[IOLTA] revenue and federal funding cuts, combined with one of the highest
poverty rates in the nation,” means “fewer legal aid lawyers to help the growing
number[ ] of [indigent persons needing legal] assistance.” Texas Access to
Justice Commission, A Report to the Supreme Court Advisory Committee from
the Texas Access to Justice Commission on the Court’s Uniform Forms Task
Force, at 3 (Apr. 6, 2012) (footnote omitted), available at
http://www.supreme.courts.state.tx.us/rules/pdf/SCAC_Access_to_Justice_report
_040612.pdf (last visited Mar. 27, 2014).
3
Brief for Appellees Odell Campbell, et al. at TAB A, Wilder v. Campbell,
et al., No. 02-13-00146-CV (Tex. App.—Fort Worth filed June 27, 2013). Over
57,000 family law petitioners proceeded pro se in 2013. See Office of Court
2
presented by this case, the Texas Access to Justice Commission has proposed

substantially revising current rule 145. The Commission presented its proposed

revisions, which specifically address the issue in this case among other

problems, at the Supreme Court Advisory Committee’s meeting on September

28, 2013, and the proposal is pending before the supreme court. 4

In the meantime, months, and in some cases, years after their divorce

decrees were final and no longer appealable, the district clerk’s office has sent

Appellees cost bills retroactively charging them for court costs, stamped in red as

“past due,” with the amount paid shown as “$0.00,” and demanding full payment

($308.00 in Appellee Coleman’s case) within ten days, in most cases followed by

a “Clerk’s Certification of Payment Default” threatening levies on Appellees’

property for failure to make payment “immediately.” 5

The temporary injunction of which the district clerk complains by this

appeal orders him to refrain from carrying out the policy and practice he

acknowledges he instituted beginning in November 2010, seeking to collect court

Administration, Annual Report for the Texas Judiciary, Fiscal Year 2013, at 46,
48, http://www.txcourts.gov/pubs/AR2013/AR13.pdf (last visited Mar. 27, 2014).
4
The transcript from the September 28, 2013 session of the Supreme
Court Advisory Committee is available at http://www.supreme.courts.state.tx.us/
rules/scac/2013/transcripts/sc09282013.pdf (last visited on Mar. 27, 2014).
5
Upon filing their petitions and affidavits of indigence, at least one of the
indigent Appellees acting pro se had received receipts from the filing clerk
showing that the total amount of their filing and service fees was “received”
($308.00 in Appellee Coleman’s case) and “charged to PAUPER’S AFFIDAVIT.”

3
costs he determined were owed by pro se petitioners in divorce cases such as

Appellees, notwithstanding their uncontested affidavits of indigence and

notwithstanding that none of the final divorce decrees contained findings that

Appellees’ actions had resulted in monetary awards sufficient under rule 145(d)

for reimbursement to the county for costs.

JURISDICTION

The majority accepts the district clerk’s preliminary argument that the trial

court in this case lacked jurisdiction to issue the temporary injunction because it

was not the court that rendered the divorce judgments, as required by civil

practice and remedies code section 65.023(b). See Tex. Civ. Prac. & Rem.

Code Ann. § 65.023(b) (West 2008) (providing that “[a] writ of injunction granted

to stay . . . execution on a judgment must be tried in the court in which the suit is

pending or the judgment was rendered.”).

I cannot agree. It has long been the rule that a plaintiff’s good faith

allegations are used to determine the trial court’s jurisdiction. See Frost Nat’l

Bank v. Fernandez, 315 S.W.3d 494, 502–03 (Tex. 2010), cert. denied, 131 S.

Ct. 1017 (2011), (citing Brannon v. Pac. Emp’rs Ins. Co., 148 Tex. 289, 294, 224

S.W.2d 466, 469 (1949)). Appellees’ pleadings do not seek to stay execution on

the judgments, attack the divorce judgments, question their validity, or present

defenses that should have been adjudicated therein. Instead, Appellees allege

that the district clerk has failed to perform his own nondiscretionary, ministerial

duty to correctly tax costs in Appellees’ divorce cases. Under rule 145(d), absent

4
a contest to an affidavit of indigence, the indigent party may be held liable for

costs in one more circumstance, that is: “If the party’s action results in monetary

award, and the court finds sufficient monetary award to reimburse costs, the

party must pay the costs of the action.” Tex. R. Civ. P. 145(d). Appellees assert

that they owe no costs because their affidavits of indigence were uncontested

and because their divorce decrees contain no finding that they received a

“sufficient monetary award to reimburse costs” as required by rule 145(d).

Appellees thus assert that the district clerk improperly taxed and is improperly

attempting to collect any court costs from Appellees and other similarly situated

parties, in violation of rule 145(d).

A century-old line of cases establishes that section 65.023(b) (including its

predecessors) only applies to a suit seeking an injunction “attacking the

judgment, questioning its validity, or presenting defenses properly connected with

the suit in which it was rendered, and which should have been adjudicated

therein.” Kruegel v. Rawlins, 121 S.W. 216, 217 (Dallas 1909), writ ref’d, 103

Tex. 86, 124 S.W. 419 (1910) (holding that injunction imposed by one court that

did not attack validity of judgment of another court but merely sought to enjoin

the clerk’s execution on the judgment at the instance of one not entitled to have it

enforced was not barred by statute); see Zuniga v. Wooster Ladder Co., 119

S.W.3d 856, 860–61 (Tex. App.—San Antonio 2003, no pet.) (op. on reh’g)

(holding injunction to prevent “misuse” of judgment of another court by execution

against nonparty not barred by statute); see also Shor v. Pelican Oil & Gas

5
Mgmt., LLC, 405 S.W.3d 737, 747–48 (Tex. App.—Houston [1st Dist.] 2013, no

pet.) (holding statute did not defeat jurisdiction where applicants did not attack

the merits of the judgment, did not question the validity of that judgment, and did

not present defenses to that judgment that should have been adjudicated in the

underlying proceeding).

Section 65.023(b) does not defeat jurisdiction here. It must be

emphasized that Appellees do not attack the validity of the divorce judgments.

Specifically, they do not complain of the language of the judgments upon which

the district clerk relies that Appellees shall bear their own costs or pay their own

costs. Appellees rely upon their uncontested affidavits of indigence to urge that

there are no costs to be charged to them. As the trial judge succinctly stated at

the conclusion of the hearing on the temporary injunction:

THE COURT: The court costs will be paid -- or “the wife will
pay for her court costs” does not create court costs in view of a 145
affidavit because there are no court costs. And she will pay for her
court costs that doesn’t create court costs where none exist. And
none exist because of 145.

MR. PONDER: Well, Your Honor, I --

THE COURT: So that doesn’t -- you know, that doesn’t -- not
only does it not create court costs, we don’t know how much, if any,
and there’s not any.

Carey v. Looney, 113 Tex. 93, 251 S.W. 1040 (1923), relied upon by

Appellees and cited by the majority, long ago stated the test as to when the

predecessor statute to section 65.023(b) does not apply. A portion of the test is

6
quoted by the majority, but the rest of the statement of the test supports

Appellees’ position that the trial court has jurisdiction:

On the other hand, if the court in which the injunction suit is brought
has general jurisdiction over the subject-matter, and the relief may
be granted independently of the matters adjudicated in the suit
whose judgment or processes thereunder are sought to be
restrained, the statute has no application.

Id. at 96, 251 S.W. at 1041 (emphasis added).

The majority focuses on the term “processes thereunder” in the above

quote, reasoning that, to grant the relief requested by Appellees, the trial court

“would clearly have to ‘regulate the processes’” of taxing and collecting costs

from Appellees under the judgments, thus defeating its jurisdiction. But Carey

did not hold that the statute would defeat jurisdiction as to any and every

injunction suit seeking to “regulate the processes” under a judgment obtained in

a different court. Id. Rather, the opinion in Carey said that the statute would not

prevent injunctive relief if the relief sought could be granted “independently of the

matters adjudicated in the suit” under which the judgment or processes

thereunder were sought to be restrained. Id. The injunctive relief granted

against the district clerk here restrains only his taxing and collection of costs,

independently of any matters adjudicated by the divorce decrees.

The principal cases relied on by the district clerk and the majority are

Evans v. Pringle, 643 S.W.2d 116 (Tex. 1982), and this court’s decision in

Hughes v. Morgan, 816 S.W.2d 557 (Tex. App.—Fort Worth 1991, writ denied),

for the proposition that one court lacks power to enjoin enforcement of another

7
court’s judgment. Those cases are distinguishable because each involved an

injunction that was dependent on the merits adjudicated (albeit by default) by a

sister court’s judgment. See Evans, 643 S.W.2d at 117–18 (holding predecessor

statute to section 65.023(b) precluded injunction to stay writ of execution to

collect post-judgment interest on the amount of a sister court’s judgment);

Hughes, 816 S.W.2d at 559 (setting aside temporary injunction that stayed

enforcement of the judgment of another court while it was on appeal). Those

cases provide no guidance here. Section 65.023(b) did not deprive the trial court

of jurisdiction to grant the temporary injunction against the district clerk’s

nondiscretionary ministerial public duties of taxing and collecting court costs,

which was independent of the validity or merits of the judgments of the divorce

cases.

The divorce decrees assessed costs by boilerplate language in the

decrees, which are judgment forms ordering either that costs of court “are to be

borne by the party who incurred them,” or that “[t]he Husband will pay for his

court costs; the Wife will pay for her court costs.” 6 At its core, the opinion of the

6
Two of the judgments state on their face that they are copyrighted forms
provided by “Texas Partnership for Legal Access.” These do-it-yourself forms
are available by link from http://www.txcourts.gov/pubs/pubs-home.asp to
http://texaslawhelp.org/ (last visited on Mar. 27, 2014). Previous forms that were
online when these Appellees filed contained the language used in their decrees,
and are still available on some websites. See http://txdivorce.org/wp-
content/uploads/2013/07/Div_No_Kids_Petition_Final-1.pdf. Two appear to be
completely pro se and used forms but it seems unclear where these forms were
obtained. The other three judgments appear to be standard forms utilized by
8
majority accepts the district clerk’s stated justification for taxing costs against

Appellees that this language in the judgments trumps rule 145. But rule 145

expressly states that uncontested affidavits of indigence serve “[i]n lieu of paying

or giving security for costs of an original action.” Tex. R. Civ. P. 145(a)

(emphasis added). There is no conflict. The judgments do not determine the

amount of costs owed; the district clerk does that, as further discussed below.

Because Appellees’ uncontested affidavits of indigence serve “in lieu of” payment

of costs, and because the divorce decrees do not contain the findings required by

rule 145(d) that Appellees received “sufficient monetary award[s] to reimburse

costs,” the district clerk’s nondiscretionary ministerial duty required that he tax no

amount of costs against Appellees.

Appellees’ pro bono counsel from the Texas Advocacy Project argued

Appellees’ position at the temporary injunction hearing, making clear that

Appellees are not attacking the judgments but, rather, are complaining of the

district clerk’s taxing any costs against them under rule 145:

MS. DIFILIPPO: Yes. Please, Your Honor.

We are not seeking the injunction on a permanent judgment
order. In fact, if I understand Mr. Ponder’s argument, we are
seeking an injunction against the district clerk for not properly
performing a nondiscretionary ministerial duty. So it had nothing to
do with the seven named plaintiffs in their underlying proceedings
and the judgment that came out of those underlying proceedings.
That is not at all what our argument is.

Legal Aid of NorthWest Texas, which provided representation to those petitioners
in their divorce cases.

9
 ....

-- we are not -- Let me reiterate that, we are not disputing the
language in the divorce decrees that say he should pay his cost and
she should pay her cost, which is what we believe the district clerk is
relying on to send the bills out to indigent litigants. That is not our
contention. We are not disputing that judgment. It has nothing to do
with that. It’s compelling enforcement of a nondiscretionary
ministerial public duty.

APPELLEES’ INDIGENCE IS CONCLUSIVE

The supreme court has held that uncontested affidavits of indigence

conclusively confer indigent status. Put simply, under rule 145, “[a]n uncontested

affidavit of inability to pay is conclusive as a matter of law.” Equitable Gen. Ins.

Co. v. Yates, 684 S.W.2d 669, 671 (Tex. 1984). In Yates, the supreme court

made clear that rule 145 is more than a procedural vehicle to allow an indigent

litigant to proceed without payment of costs. The rule is a testament to the

judiciary’s strong commitment that indigent litigants are guaranteed a forum that

is not to be blocked by financial burdens that would defeat that right. See id. In

Yates, the trial court conditioned the grant of a new trial to an employee in a

worker’s compensation case on payment to the carrier for its attorney’s fees in

preparing and presenting its response. Id. at 670. Supported by an uncontested

affidavit of indigence, Yates responded that he was unable to pay that amount.

Id. Holding that Yates’s uncontested affidavit of indigence was conclusive as a

matter of law, the supreme court ruled that the trial court abused its discretion by

denying him a new trial. Id. at 671. Recognizing that attorney’s fees are not

technically “costs,” the supreme court looked to the spirit and purpose of rule

10
145, to guarantee open courts for those unable to pay costs, and rejected the

condition imposed by the trial court that the indigent employee must pay the

carrier’s attorney’s fees before being allowed to continue his suit:

Although we recognize the general rule that attorney’s fees are not
costs, the assessed fees in the present case will be considered in
light of Rule 145 and the rule’s intended purpose to guarantee a
forum to those unable to pay court costs. Accordingly, the trial court
abused its discretion by imposing such a monetary condition in the
face of an uncontested affidavit of inability to pay.

Id. (citations omitted).

Yates, in essence, held that a rule 145 uncontested affidavit of indigence

trumped a trial court’s express ruling imposing a monetary condition on the

plaintiff’s ability to continue his suit. The same reasoning must apply that a rule

145 uncontested affidavit of indigence trumps a district clerk’s attempt to

retroactively tax costs against an indigent party. The only exception is set forth in

rule 145(d), mentioned above, which allows costs to be assessed despite an

uncontested affidavit when a “party’s action results in [a] monetary award . . .

sufficient . . . to reimburse costs,” and the rule further requires that the trial court

must expressly so find. Tex. R. Civ. P. 145(d). There is no such finding in

Appellees’ divorce judgments.

As stated in Yates, the intended purpose of rule 145 is “to guarantee a

forum to those unable to pay court costs.” 684 S.W.2d at 671. Rule 145 is the

key to the courthouse without which indigent parties are denied entry. Allowing a

district clerk to tax costs against indigent litigants in divorce cases despite

11
uncontested affidavits of indigence, renders the guarantee of a forum under rule

145 illusory and locks the courthouse door for thousands of indigent parties in

Texas who need it most. 7 Statistics from the Office of Court Administration

(OCA) show that 4,011 family law cases were filed in Tarrant County by pro se

petitioners in fiscal year 2013 8 but no figures are available from OCA as to how

many of those petitioners were indigent.

The district clerk cites no case law or statutory support for an exception

allowing a district clerk or trial court to override rule 145 in divorce cases, and

there is case law firmly enforcing the policies and provisions of rule 145 and

Yates in the family law context. 9 See, e.g., In re Villanueva, 292 S.W.3d 236,

246 (Tex. App.—Texarkana 2009, orig. proceeding) (holding trial court abused its

discretion by ordering Villanueva to pay advance costs and fees for attorney ad

litem and social study administrator because, based on her uncontested affidavit

of indigence, she was indigent as a matter of law and such orders effectively

7
See generally Texas Access to Justice Commission, supra note 2.
8
Office of Court Administration, District Courts, Summary of Other Civil and
Family Case Activity, September 1, 2012 to August 31, 2013, at 7
http://www.courts.state.tx.us/pubs/AR2013/dc/10-
OtherCivilAndFamilyActivityByCounty.pdf (last visited Mar. 27, 2014).
9
The district clerk apparently chose pro se, indigent petitioners in divorce
cases from which to attempt to collect costs on the theory that trial courts in
dissolution of marriage or SAPCR cases have discretion to assess costs other
than as provided in the civil rules, citing family code sections 6.708(a) and
106.001. Tex. Fam. Code Ann. §§ 6.708(a) (West Supp. 2013), 106.001 (West
2014). But neither those sections nor the cases cited speak to a trial court’s
ability to assess costs against an indigent party.

12
denied her a forum in which to dissolve her marriage and resolve custody issues,

and “[t]hough undoubtedly driven by its duty to determine the best interest of the

children, the trial court exercised its discretion in a manner inconsistent with the

conclusive effect as to indigence provided by Rule 145 of the Texas Rules of

Civil Procedure”); Shirley v. Montgomery, 768 S.W.2d 430, 434 (Tex. App.—

Houston [14th Dist.] 1989, orig. proceeding) (holding trial court abused its

discretion by striking wife’s pleadings and prohibiting her from introducing any

evidence at trial as sanctions for failing to pay $15,000 to guardian ad litem in

light of evidence of wife’s financial inability to pay the ad litem’s fee and that it

was in the best interest of childen for parent to have access to and availability of

a forum); Cook v. Jones, 521 S.W.2d 335, 338 (Tex. Civ. App.—Dallas 1975, writ

ref’d n.r.e.) (holding rule 145 uncontested affidavit of indigence relieved wife of

obligation to pay sheriff’s office for substituted service by publication so as to

allow her meaningful access to the court, citing rule 145’s purpose of allowing

access to a forum for indigent litigants).

These cases illustrate the courts’ continued commitment to the purpose

and policy embodied in rule 145. Taxing of court costs in family cases, as in any

other civil case, against a party deemed indigent as a matter of law under rule

145, absent any contest or findings as required by rule 145(d), flies in the face of

the rule, the policy and purpose of guaranteeing access to a forum by indigent

litigants, and “[t]he concept that courts should be open to all, including those who

cannot afford the costs of admission, [as] firmly embedded in Texas

13
jurisprudence.” Higgins v. Randall Cnty. Sheriff’s Office, 257 S.W.3d 684, 686

(Tex. 2008); see Tex. Const. art. I, § 13.

I appreciate the district clerk’s many responsibilities in managing his office

with filings in what he estimates as over 59,000 cases over the past year for the

many civil, criminal, and family district courts in this county and the need to

collect costs to keep the judicial system open and running, especially through

difficult financial times. His concern here is with a perceived conflict between the

divorce decrees’ assessments of court costs versus rule 145. But Appellees do

not challenge those boilerplate adjudications of costs that are routinely assessed

in thousands upon thousands of judgments of every type. The point is that the

divorce decrees do not determine the amount of costs to be borne by Appellees.

“[T]he court’s role is to adjudicate which party or parties is to bear the costs

of court, ‘not to determine the correctness of specific items.” Madison v.

Williamson, 241 S.W.3d 145, 158 (Tex. App.—Houston [1st Dist.] 2007, pet.

denied). As a result, a judgment may state that costs are assessed against a

certain party, but it should not state the amount taxed as costs. Id.; see also

Williams v. Colthurst, 253 S.W.3d 353, 363 (Tex. App.—Eastland 2008, no pet.).

Conversely, the taxing of costs is not an adjudication by the court. Reaugh v.

McCollum Exploration Co., 140 Tex. 322, 325, 167 S.W.2d 727, 728 (1943).

Tabulating the specific item amounts to be taxed as costs is a “‘ministerial duty

performed by the clerk.’” Wright v. Pino, 163 S.W.3d 259, 261 (Tex. App.—Fort

Worth 2005, no pet.) (quoting Pitts v. Dallas Cnty. Bail Bond Bd., 23 S.W.3d 407,

14
417 (Tex. App.—Amarillo 2000, pet. denied) (op. on reh’g)). It is the ministerial

duty of the clerk that is at issue here, and I agree with Appellees and the trial

court that the proper amount to be taxed to Appellees was no court costs, or

“$0.00.”

NO ADEQUATE LEGAL REMEDY

The district clerk further argues that the temporary injunction was not

appropriate because a motion to retax costs is an “adequate remedy at law” to

correct the amount of costs he has now taxed to them under the judgments and

should be filed by each Appellee in each court in which the costs accrued. See

Wood v. Wood, 159 Tex. 350, 357–58, 320 S.W.2d 807, 812–13 (1959); Reaugh,

140 Tex. at 325, 167 S.W.2d at 728 (holding an error in taxing costs by the clerk

may be corrected by the court upon motion of the injured party even after the

case has been finally disposed of on appeal unless the right to retax costs has

been lost in some manner). 10

While a motion to retax costs may be an available remedy, I disagree that

individual motions to retax filed by each Appellee and others similarly situated in

the various family district courts constitute an adequate legal remedy here. See

Repka v. Am. Nat’l Ins. Co., 143 Tex. 542, 547, 186 S.W.2d 977, 980 (1945)

10
The district clerk acknowledges that there is “no impediment” to each
party filing a motion to retax costs in the court that rendered their divorce
judgments because the timeliness of a motion to retax costs is linked to the time
a demand is made for payment of costs, which he concedes was well after the
divorce decrees were rendered and became final and plenary power had expired
as to each of these Appellees.

15
(noting fact that complainant may have a remedy at law is not conclusive that

such remedy is adequate and does not foreclose his right to equitable relief). As

the district clerk acknowledges in his brief, for a remedy to be “adequate,” it must

be one that is complete, practical, and efficient to the prompt administration of

justice as is equitable relief.

The number of individual motions to retax in each court for these and other

similarly situated indigent litigants from whom the district clerk plans to extract

costs could add up to thousands of such motions that would overwhelm the

family law courts as well as the overworked and understaffed legal aid offices

and volunteer pro bono attorneys. As previously noted, statistics published by

OCA for Tarrant County show over 4,000 petitioners in family law cases who

were pro se in the fiscal year ending August 31, 2013, 11 with similar numbers for

at least the two prior years, 12 totaling more than twelve thousand potential

motions to retax costs for those years alone that could conceivably be filed by

pro se litigants who are indigent, and that number does not include indigent

petitioners represented by legal aid or pro bono lawyers.

11
Office of Court Administration, supra note 8.
12
Office of Court Administration, District Courts, Summary of Other Civil
and Family Case Activity, September 1, 2011 to August 31, 2012, at 7
http://www.courts.state.tx.us/pubs/AR2012/dc/10-
OtherCivilAndFamilyActivityByCounty.pdf (last visited Mar. 27, 2014); Office of
Court Administration, District Courts, Summary of Other Civil and Family Case
Activity, September 1, 2010 to August 31, 2011, at 7
http://www.courts.state.tx.us/pubs/AR2011/dc/10-
OtherCivilAndFamilyActivityByCounty.pdf (last visited Mar. 27, 2014).

16
 A party can restrain the unlawful act of a public official when the act would

cause irreparable injury or when that remedy is necessary to prevent a

multiplicity of suits. Tex. State Bd. of Exam’rs in Optometry v. Carp, 162 Tex. 1,

5, 343 S.W.2d 242, 245 (1961); Dallas Cnty. v. Sweitzer, 881 S.W.2d 757, 769

(Tex. App.—Dallas 1994, writ denied) (op. on reh’g) (holding injunction proper

against district clerk of Dallas County to prevent collection of various fees not

authorized by law); Garcia v. Angelini, 412 S.W.2d 949, 951 (Tex. Civ. App.—

Eastland 1967, no writ). The district clerk’s proposal for filing individual motions

to retax costs in each of these and other similar cases would undoubtedly create

a multitude of proceedings.

It is firmly established that equity will assume jurisdiction for the purpose of

preventing a multiplicity of suits, the principle being that the necessity of a

multiplicity of suits in itself constitutes the inadequacy of a remedy at law, which

confers equitable jurisdiction. Repka, 143 Tex. at 546, 186 S.W.2d at 979. In

Repka, the court further stated, as particularly pertinent to this case:

It would be a paradox to say that equity jurisdiction can be exercised
to prevent a multiplicity of suits and at the same time say that a legal
remedy is complete and adequate, although it leads to such
multiplicity. To our minds, if a remedy at law, though otherwise
complete and adequate, leads to a multiplicity of suits, that very fact
prevents it from being complete and adequate.

Id. at 547–48, 186 S.W.2d at 980 (quoting Rogers v. Daniel Oil & Royalty Co.,

130 Tex. 386, 395, 110 S.W.2d 891, 896 (1937)).

17
 This would apply to motions to retax as to these seven Appellees as well

as to hundreds, if not thousands, of other similarly situated litigants. And as to

Appellees’ standing to maintain this consolidated suit on behalf of “others

similarly situated,” I agree with Appellees that they have standing to temporarily

restrain the allegedly unauthorized action of the district clerk in systematically

carrying out a policy and practice that he proposes to direct against all indigent

petitioners who have filed uncontested affidavits of indigence, and that this

remedy, due to the nature of the wrong to be addressed, will necessarily inure to

the benefit of all similarly situated litigants by restraining his action, rather than

forcing them to file motions and imposing that burden on the family courts’

dockets.

In Sweitzer, the trial court granted an injunction against the district clerk of

Dallas County in a suit challenging the legality of various types of fees that he

had charged to the plaintiffs that they believed were not authorized by law. 881

S.W.2d at 761. Significantly, the plaintiffs sought the injunction on behalf of all

litigants in Dallas County who paid similar fees, as well as for themselves. Id. at

769. The appellate court upheld the injunction, holding that “[a] party suing for all

persons adversely affected by enforcement of a statute has standing to sue for

an injunction” and that this claim gave plaintiff a “sufficient justiciable interest to

maintain an action to enjoin the County from collecting fees not authorized by

law.” Id. I would hold that, under Sweitzer, Appellees have standing and a

18
justiciable interest to maintain this suit and to enjoin the district clerk from taxing

and collecting costs not authorized by law.

I would affirm the temporary injunction on behalf of Appellees and all

persons similarly situated with respect to the district clerk’s policy and practice. I

would hold that the 17th District Court has jurisdiction over Appellees’ suit; that

Appellees have standing and a justiciable interest in maintaining their action for

themselves and all persons similarly affected; and that Appellees have

demonstrated a probable right to recover and probable irreparable harm, with no

adequate remedy at law. Because the majority does not so hold, I respectfully

dissent.

/s/ Anne Gardner

ANNE GARDNER
JUSTICE

DELIVERED: April 3, 2014

19