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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OPINION

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Appellant Thomas A. Wilder, the district clerk of Tarrant County (the clerk),

appeals from the trial court’s temporary injunction barring him from collecting

court costs from indigent parties “unless there were specific findings expressly

stated in a final judgment or order providing that the indigent party’s action
resulted in monetary award and that the monetary award was sufficient to

reimburse costs.” We vacate the trial court’s temporary injunction and dismiss

the case.

I. BACKGROUND

A. FACTUAL BACKGROUND

Appellees 1 were divorce petitioners in actions filed in five of the seven

family district courts in Tarrant County. Each Appellee filed an affidavit of

indigency, which was either uncontested or the subject of a withdrawn or denied

contest; thus, each Appellee was entitled to proceed in the divorce actions

without payment of costs. See Tex. R. Civ. P. 145. After the respective family

district court entered a final divorce decree, the clerk issued a bill of costs to each

Appellee. When Appellees questioned the bills based on their status as

indigents, the clerk relied on language included in each final divorce decree that

each party would bear their own costs. 2 Indeed, each final divorce decree

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Appellees are Diana J. Najera, Scott Wiernik, Tairhonda McAfee,
Marybeth Lynn Jewell, Odell Campbell, Shawnta Renea Coleman, and Thomas
Ray Robertson. Appellees are separated into two groups—one group containing
four appellees, the other group containing three appellees—and each group is
represented by its own counsel. We will treat these groups as one party; thus,
any argument raised by one group of appellees will be considered to have been
raised by both.
2
The dissenting opinion states that the costs assessments were in “form[]”
divorce decrees and were “boilerplate adjudications of costs.” However, only two
of the seven decrees at issue are on a form, and both of these decrees were
signed by the petitioner and included an acknowledgement that the petitioner
“agrees to the terms of this decree.”

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recited either (1) “costs of Court are to be borne by the party who incurred them”

or (2) “[t]he Husband will pay for his court costs [and] the Wife will pay for her

court costs.” The final divorce decrees show that Appellees 3 agreed to the

substance of all terms, including the costs language. However, none of the final

divorce decrees at issue included specific findings that the litigants were “able to

afford costs” after previously being found indigent. Tex. R. Civ. P. 145(d).

Relying on the costs language in the final divorce decrees, the clerk issued

the bills of costs to Appellees. See Tex. Fam. Code Ann. § 6.708(a) (West Supp.

2013), § 106.001 (West 2014). Although the final divorce decrees at issue were

signed between November 24, 2008 and August 8, 2012, the clerk issued the

bills of costs during the three-month period of May 7 to August 10, 2012. The

clerk also issued certifications of default payment in each case and threatened to

issue execution for the costs. See Tex. R. Civ. P. 129, 149. None of the

appellees had appealed from the final divorce decrees.

B. PROCEDURAL BACKGROUND

In February 2013 and at least six months after the clerk issued the

disputed bills of costs, Appellees filed two petitions against the clerk in civil

district court seeking to enjoin him from assessing costs against Appellees and

3
The final divorce decree involving Wiernik does not include a page signed
by the litigants.

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other, similarly situated litigants. 4 After the two sitting judges recused

themselves, the regional presiding judge assigned a senior district judge to hear

one of the petitions. 5 See Tex. R. Civ. P. 18b. The assigned judge consolidated

the petitions on the parties’ agreed motion. See Tex. R. Civ. P. 174(a).

On April 15, 2013, the trial court held an evidentiary hearing on the

requests for a temporary injunction. That same day, the trial court 6 entered an

order temporarily enjoining the clerk from attempting to collect costs from

indigent litigants:

1. [Appellees] have demonstrated a probable right to prevail on
the trial of this cause on their claims that:

a. [The clerk] has a policy, practice, and procedure that his
office will seek to collect costs against parties who have filed
an affidavit on indigency under Tex. R. Civ. P. 145 where the
affidavit was not contested, where the contest was denied, or
where the contest was withdrawn based on judgments or final
orders in which there was no specific finding expressly stated
in the judgment or final order that the indigent party’s action
resulted in a monetary award, and no specific finding

4
One petition was styled “Petition for Writ of Mandamus, Application for
Temporary Restraining Order, Petition for Writ of Temporary and Permanent
Injunction, and Petition for Declaratory Judgment,” while the other was styled
“Original Petition for Declaratory Judgment, Application for Temporary
Restraining Order, Temporary Injunction, Permanent Injunction, and Writ of
Mandamus.”
5
The record does not include an assignment order for the other petition in
which the trial court also recused itself.
6
For the remainder of this opinion, “the trial court” will refer to the court
issuing the preliminary injunction against the clerk. “Family district court” will
refer to the court entering the final divorce decree at issue.

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 expressly stated in the judgment or final order that there was
sufficient monetary award to reimburse costs;

b. The collection of costs policy, practice and procedure of
[the clerk] described above violated Tex. R. Civ. P. 145;

2. [The clerk] intends to continue enforcing the collection of costs
policy, practice, and procedure described above against [Appellees];

3. If [the clerk] carries out that intention, he will thereby tend to
make ineffectual a judgment in favor of these [Appellees], in that [the
clerk] has threatened to issue an execution for costs to levy upon [a]
sufficient amount of [Appellees’] property to satisfy the alleged
debts; and

4. Unless [the clerk] is enjoined from carrying out the collection
of costs policy, practice, and procedure described above,
[Appellees] will suffer irreparable harm without any adequate remedy
at law, including but not limited to the fact that the applicable trial
courts no longer have plenary power and all appeal deadlines had
passed prior to the first collection letter being sent.

The trial court further set a trial date and ordered that the temporary injunction

would remain in effect until it entered a final order. See Tex. R. Civ. P. 683. The

clerk filed a notice of accelerated appeal from the trial court’s interlocutory order

granting the temporary injunction. See Tex. Civ. Prac. & Rem. Code Ann.

§ 51.014(a)(4) (West Supp. 2013); Tex. R. App. P. 28.1(a).

In three issues, the clerk asserts that the trial court erred because (1) any

injunction was required to be tried in the court that rendered the judgment—here,

the respective family district court; (2) Appellees failed to certify a class, which is

a prerequisite for the trial court to enjoin the clerk as to similarly-situated persons;

and (3) Appellees had an adequate remedy at law—a motion to re-tax costs filed

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in the family district court that entered the final divorce decree. 7 The clerk does

not argue that the required findings of rule 145(d) that Appellees were “able to

afford costs” were made or that Appellees were not, in fact, indigent. 8 Tex. R.

Civ. P. 145(d); see also Tex. R. Civ. P. 141 (allowing court, “for good cause,” to

adjudge costs other than “as provided by law or these rules”).

II. STANDARD AND SCOPE OF REVIEW

A temporary injunction is warranted if the movant shows (1) a cause of

action against the defendant, (2) a probable right to the relief sought, and (3) a

probable, imminent, and irreparable injury in the interim. Butnaru v. Ford Motor

Co., 84 SW.3d 198, 204 (Tex. 2002) (op. on reh’g). In short, the purpose of a

temporary injunction is to preserve the status quo pending trial. Walling v.

Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993).

We review an order granting a temporary injunction under an abuse-of-

discretion standard, which mandates reversal only if the trial court acted without

7
In his brief and at oral argument, the clerk asserted that if Appellees filed
motions to re-tax costs in the appropriate family district court, such motions
would be timely filed.
8
Rule 145(d) provides that a litigant’s indigency status may be withdrawn if
the litigant’s circumstances change:

If the court finds at the first regular hearing in the course of the
action that the party (other than a party receiving a governmental
entitlement based on indigency) is able to afford costs, the party
must pay the costs of the action. Reasons for such a finding must
be contained in an order.

Tex. R. Civ. P. 145(d).

6
reference to any guiding rules or principles. In re Nitla S.A. de C.V., 92 S.W.3d

419, 422 (Tex. 2002) (orig. proceeding); Burgess v. Denton Cnty., 359 S.W.3d

351, 356–57 (Tex. App.—Fort Worth 2012, no pet.). Our scope of review is

limited to the validity of the order granting the temporary injunction. Burgess, 359

S.W.3d at 356. Therefore, we are not to determine the merits of the movant’s

underlying claims. Davis v. Huey, 571 S.W.2d 859, 861–62 (Tex. 1978).

The clerk argues in his first issue, however, that the trial court did not have

jurisdiction to enter the temporary injunction because it did not enter the

judgments sought to be executed. Whether the trial court has subject-matter

jurisdiction is an issue of law that we review de novo.

III. TRIAL COURT’S JURISDICTION TO ENTER TEMPORARY INJUNCTION

To support its jurisdictional argument, the clerk relies on section 65.023(b),

which provides that “[a] writ of injunction granted to stay proceedings in a suit or

execution on a judgment must be tried in the court in which the suit is pending or

the judgment was rendered.” Tex. Civ. Prac. & Rem. Code Ann. § 65.023(b)

(West 2008). Because this provision controls venue and jurisdiction for a suit

requesting an injunction to stay execution of a facially-valid judgment, the clerk

asserts that the trial court did not have subject-matter jurisdiction to temporarily

enjoin the clerk’s efforts to collect costs from Appellees. See McVeigh v. Lerner,

849 S.W.2d 911, 914 (Tex. App.—Houston [1st Dist.] 1993, writ denied).

Appellees stated at oral argument that the strongest case supporting their

argument that the trial court had jurisdiction to enter the injunction is Carey v.

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Looney, 251 S.W. 1040 (Tex. 1923). The supreme court in Carey interpreted the

predecessor statute to section 65.023(b) and held that injunctions may, in some

instances, be issued by a court that did not enter the complained-of judgment:

[I]f 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 1041. Appellees assert that because the trial court had general jurisdiction

over their request for a declaratory judgment against the clerk, the trial court

could issue the injunction. However, Carey is not as broad as Appellees urge.

The supreme court specifically stated that the predecessor statute to section

65.023(b) mandated that an injunctive request had to be filed in the court that

issued the judgment “[i]f, in order to grant the relief, it is necessary to set aside or

modify the judgment, or to regulate the processes issued thereunder, and the

attack is made by a party to the judgment.” Id. (emphasis added). Here, the trial

court, in order to grant the requested relief, would clearly have to “regulate the

processes” by which the clerk collects the costs from parties to the judgments—

Appellees—under the family district courts’ final divorce decrees.

Appellees further argue that because they did not appeal from their final

divorce decrees, 9 section 65.023(b) is inapplicable. But as the supreme court

9
Indeed, Appellees clearly state that they “are not challenging the
individual court judgments” and that even if they wanted to appeal the clerk’s
attempts to execute on his bills of costs, “that opportunity was foreclosed due to
the loss of plenary power by the trial court.”

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has made clear, section 65.023(b) is “mandatory, requiring the injunction suit to

be returnable to and tried in the court rendering the judgment, if the attack is

made by a party to the judgment and if, in order to grant the relief, it is necessary

to regulate the processes issued under the judgment.” Evans v. Pringle, 643

S.W.2d 116, 118 (Tex. 1982) (emphasis added). In Evans, two criminal

defendants failed to appear for trial, and the criminal trial court with jurisdiction

over the defendants’ indictments entered judgments of forfeiture against the

defendants’ sureties. Id. at 117. The sureties appealed the forfeiture judgments,

and the court of criminal appeals affirmed. Id. The appropriate clerk then

attempted to execute on the forfeiture judgments to collect post-judgment interest

even though the forfeiture judgments did not provide for post-judgment interest.

Id. The sureties brought a civil action seeking to enjoin the sheriff from levying

on their property to satisfy the writs of execution. Id. The supreme court held

that the sureties were required, under the predecessor statute to section

65.023(b), to seek relief in the criminal court that rendered the judgment that was

the subject of the sheriff’s collection efforts. Id. at 118.

Appellees attempt to distinguish Evans and point to our later decision in

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

to support their argument that section 65.023(b) does not apply once a judgment

is final for appellate purposes. In Hughes, a criminal district court entered a

default judgment against a bond surety in a bond-forfeiture proceeding. Id. at

558. The surety appealed the judgment and filed a supersedeas bond. Id. After

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the clerk attempted to disqualify the surety from acting in that capacity in other

cases based on the default judgment, a civil district court enjoined the

enforcement of the judgment. Id. We applied section 65.023(b) and held that the

civil district court did not have jurisdiction “to affect a judgment on appeal from

another court.” Id. at 559. Although the judgment in Hughes was appealed, the

judgment in Evans was not on appeal and, in fact, the appellate timetable had

expired. The dispositive issue in both Evans and Hughes was the power of one

court to enjoin the enforcement of the judgment of another court. Evans, 643

S.W.2d at 118; Hughes, 816 S.W.2d at 559. Indeed, Hughes expressly relied on

Evans and held that

the provisions of [section 65.023(b)] are mandatory and an injunction
suit is returnable to and must be tried ‘in the court rendering the
judgment, if the attack is made by [a] party to the judgment and if, in
order to grant the relief, it is necessary to regulate the processes
issued under the judgment.’

Hughes, 816 S.W.2d at 559 (quoting Evans, 643 S.W.2d at 118). Thus, Evans

mandates that the trial court that renders the judgment is the only court that may

enjoin its execution or regulate the judgment’s processes even if plenary power is

absent. 10 Evans, 643 S.W.2d at 117–18. We sustain the clerk’s first issue.

10
Appellees argue that section 65.023(b) is “limited to efforts to stay
proceedings in a suit or execution on a judgment,” neither of which is present in
this case. But the action sought to be enjoined—the collection of costs provided
in the judgment—is squarely within the purview of section 65.023(b), i.e.,
execution on a judgment.

10
 Before concluding, we emphasize that courts are to be open to all,

“including those who cannot afford the costs of admission.” Higgins v. Randall

Cnty. Sheriff’s Office, 257 S.W.3d 684, 686 (Tex. 2008) (citing open-courts

provision of Texas Constitution). Our decision today does not retreat from this

tenet or minimize its importance. Indeed, courts should tread lightly in this arena

and carefully interpret the rules and statutes regarding indigency status and the

award of costs. Our ultimate holding under section 65.023(b) is merely one of

jurisdiction and venue, not access: the trial court did not have jurisdiction to

enjoin the processes by which the family district courts’ final divorce decrees

were executed by the clerk.

The dissenting opinion’s efforts to protect indigent parties’ access to the

courts and discourage the clerk’s costs-collection efforts from indigent litigants

are laudable, and we do not necessarily disagree. However, we are limited by

the scope and standard of our review of the trial court’s injunction—which

expressly prohibit a determination of the merits of the dispute—and by our

inability to address issues that are not properly before us based on the trial

court’s lack of subject-matter jurisdiction. In short, we cannot address the

propriety of the clerk’s admitted policy of attempting to collect costs from indigent

parties in the absence of the trial court’s specific findings under rule 145(d).

Accordingly, the dissenting opinion’s discussion of the propriety of the clerk’s

policy is beyond the scope of our review given the procedural posture of this

accelerated appeal. Any protracted discussion of each divorce decree, each

11
costs award, the rules applicable to indigent parties, and the propriety of the

clerk’s execution on judgments involving indigent parties would be premature,

advisory, and not necessary to the disposition of this appeal. See Tex. R. App.

P. 47.1; Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999);

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).

Therefore, we are not ignoring case law applicable to indigent litigants as the

dissent suggests. We are simply deciding the preliminary and operative question

of whether the trial court had jurisdiction over the subject matter of Appellees’

petitions. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012) (noting

if court does not have jurisdiction, its opinion addressing any issues other than

jurisdiction is advisory); Sw. Bell Tel., L.P. v. Ballenger Constr. Co., 230 S.W.3d

489, 491–92 (Tex. App.—Corpus Christi 2007, no pet.) (recognizing trial court’s

jurisdiction over case or controversy must first be addressed before merits of

appeal are reached to avoid appellate court rendering advisory opinion). We

hold it did not under section 65.023(b).

IV. CONCLUSON

Because the trial court did not have subject-matter jurisdiction to enjoin the

clerk’s efforts to execute on judgments entered by family district courts, we

vacate the trial court’s order granting Appellees a temporary injunction and

dismiss the case. See Tex. R. App. P. 43.2(e), 43.3. Based on this conclusion,

we do not need to address the clerk’s remaining issues. See Tex. R. App. P.

47.1.

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 /s/ Lee Gabriel
LEE GABRIEL
JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

GARDNER, J., filed a dissenting opinion.

DELIVERED: April 3, 2014

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