COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00279-CV
VICTOR J. BURGESS, APPELLANTS
INDIVIDUALLY AND D/B/A EYDIE‘S AND APPELLEES
BAIL BONDS, AND EDITH
BURGESS, INDIVIDUALLY AND
D/B/A BURGESS BAIL BONDS
V.
DENTON COUNTY, TEXAS; THE APPELLEES
DENTON COUNTY BAIL BOND AND APPELLANTS
BOARD; SHERRI ADELSTEIN, IN
HER OFFICIAL CAPACITY AS
DENTON COUNTY DISTRICT
CLERK, AND AS PRESIDING
CHAIRPERSON OF THE DENTON
COUNTY BAIL BOND BOARD;
CYNTHIA MITCHELL, IN HER
OFFICIAL CAPACITY AS DENTON
COUNTY CLERK; BEN PARKEY, IN
HIS OFFICIAL CAPACITY AS
SHERIFF OF DENTON COUNTY;
AND JIM DOTSON, MICHAEL
TRUITT, JERRY RAYBURN, JOHN
HATZENBUHLER, KEN
JANNERETH, AND RON SMITH, IN
THEIR OFFICIAL CAPACITIES AS
CONSTABLES FOR DENTON
COUNTY
----------
FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
----------
OPINION
----------
Appellants Victor J. Burgess, individually and d/b/a Eydie‘s Bail Bonds, and
Edith Burgess, individually and d/b/a Burgess Bail Bonds (the Burgesses), filed
this interlocutory appeal from the trial court‘s denial of their motion for a
temporary injunction during the pendency of their declaratory judgment action.
Appellees Denton County, Texas; the Denton County Bail Bond Board; Sherri
Adelstein, in her official capacity as Denton County District Clerk and as
presiding chairperson of the Denton County Bail Bond Board; and Cynthia
Mitchell, in her official capacity as Denton County Clerk (collectively Denton
County); Ben Parkey, in his official capacity as Sheriff of Denton County; and Jim
Dotson, Michael Truitt, Jerry Rayburn, John Hatzenbuhler, Ken Jannereth, and
Ron Smith, in their official capacities as constables for Denton County (law
enforcement defendants) (all collectively Appellees) filed a cross-appeal from the
trial court‘s denial of their pleas to the jurisdiction. We affirm in part and reverse
in part. Because we hold that the trial court did not err by denying Appellees‘
pleas to the jurisdiction, we affirm those orders of the trial court. Because we
hold that the trial court abused its discretion by denying the Burgesses‘
temporary injunction, we reverse the trial court‘s denial of the temporary
2
injunction and remand this cause to the trial court for the court to grant the
Burgesses‘ motion for temporary injunction in accordance with this opinion.
I. Background
This appeal arises out of the Burgesses‘ challenge to a fee assessed by
the district clerk and county clerk of Denton County for service of citation by
certified mail. Victor had previously challenged the same fee after he posted the
bond for a defendant in a criminal case.1 The defendant did not appear at a court
hearing, and the trial court consequently signed a judgment nisi forfeiting the
bond.2 After receiving notice, Victor filed an answer.3 The State filed a motion
for summary judgment in which it asserted that Victor was required to pay court
costs for the service of citation upon him.4 Victor argued in response that the
State was not entitled to recover that cost.5 The trial court signed a judgment in
favor of the State that included an award for costs assessed by the district clerk. 6
The bill of costs included $68 for citation by certified mail.7
1
See Burgess v. State, 313 S.W.3d 844, 847 (Tex. App.—Fort Worth 2010,
no pet.) (Burgess I).
2
Id.
3
Id.
4
Id.
5
Id.
6
Id.
7
Id.
3
Victor appealed and argued that the assessment of the $68 cost was
unlawful because the Denton County Commissioners Court had not authorized
the cost.8 This court held that, based on the record before us, the commissioners
court had authorized charging a $60 fee for service of citation by certified mail
and that the government code authorized the district clerk to charge an $8 fee for
issuing a citation.9
Victor also argued that the $60 cost was unlawful because it was not
reasonable and was higher than necessary to pay the expense of the service. 10
Noting that Victor‘s suit ―was not filed for the purpose of attacking the
commissioners court‘s order‖ and was one in which ―none of Denton County, the
commissioners court, any of the commissioners court‘s members, nor the district
clerk (who collects the fee at issue) ha[d] been made parties,‖ this court
overruled this issue on the ground that Victor‘s challenge to the commissioners
court order authorizing the $60 was an impermissible collateral attack.11
After this court handed down its opinion, the Burgesses brought this suit
challenging the $60 fee. The Burgesses sued Denton County and the law
enforcement defendants. The Burgesses sought a temporary restraining order,
8
Id. at 850.
9
Id. at 851.
10
Id.
11
Id. at 852, 854.
4
temporary injunction, and permanent injunction prohibiting Appellees from
assessing, imposing, or collecting from them the certified mail fee. The
Burgesses also sought a declaratory judgment that the sixty-dollar certified mail
fee as ordered by the Denton County Commissioners Court is invalid and in
violation of Texas law.
At the hearing on the Burgesses‘ request for a temporary injunction, the
district clerk for Denton County testified that to prepare a citation for service by
mail, her office uses a web-based service to create the citation, which takes two
to four minutes depending on the clerk. The clerk prints out the document,
prepares an envelope and return receipt, and takes it to the county‘s mail
department, which puts postage on the envelope. She stated that she believed
that the fee charged by the service per document was around eighty cents and
that the United States Postal Service charges $2.80 for certified mail, plus $1.10
for return receipt requested. The clerk‘s office charges an $8.00 fee for issuing
the citation, and this fee is not part of the $60 that it charges for service of the
citation. She testified that she collects a $60 fee for service by certified mail not
because of the costs to her office but because of her belief that the
commissioners court had set that amount as the fee for sheriffs and constables in
providing the same service.
Jim Dotson, a Denton County constable, testified that if someone in his
office has ever provided service of citation by certified mail, ―it‘s very seldom,‖
and that he had never done it, although he was ―sure some of the employees
5
have.‖ Dotson also serves on the committee that makes recommendations to the
commissioners court regarding the fees that the court sets for services provided
by sheriffs and constables. When asked if the committee made a determination
of what the necessary expense would be for sheriffs or constables to serve
process by certified mail, he stated that he ―[didn‘t] remember that being part of
it.‖
After the hearing, the trial court sent a letter to the parties stating that ―[i]t is
common knowledge‖ that employee wages; the cost of equipment and software;
and transportation, filing, and storage costs associated with preparation of
service of citation by certified mail ―are all factors to be considered in determining
the actual cost of goods and services‖ and that ―[t]here was no showing that the
capital costs, personnel costs, or other overhead costs of Denton County were
minimal.‖ The trial court entered an order denying the Burgesses‘ application for
a temporary injunction ―on the basis that [the Burgesses] cannot show that
[Appellees] acted illegally, unreasonably, or arbitrarily in setting or assessing‖ the
fee. The Burgesses appeal from that order.
Regarding the still-pending declaratory judgment claim, Appellees filed
pleas to the jurisdiction asserting that the trial court did not have jurisdiction
because, due to ―bond forfeiture lawsuits now pending in Denton County,‖
another court had exclusive jurisdiction over the suit. They also asserted
legislative immunity. The trial court denied the pleas, and Appellees brought this
cross-appeal.
6
II. The Burgesses’ Appeal
In the Burgesses‘ sole issue, they argue that the trial court erred and
abused its discretion by denying their application for a temporary injunction.
They ask this court to reverse the trial court‘s order denying the application and
to remand this case for the trial court to enter a temporary injunction enjoining
Appellees from assessing or imposing against or collecting from them the
challenged certified mail fee until final disposition of the case.
Standard of Review
The purpose of a temporary injunction is to preserve the status quo of the
litigation‘s subject matter pending a trial on the merits.12 To be entitled to a
temporary injunction, the applicant must plead a cause of action and further show
both a probable right to recover on that cause of action and a probable,
imminent, and irreparable injury in the interim.13 A probable right of recovery is
shown by alleging a cause of action and presenting evidence tending to sustain
it.14 An injury is irreparable if damages would not adequately compensate the
injured party or if they cannot be measured by any certain pecuniary standard. 15
12
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (citing
Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993)).
13
Id.; Frequent Flyer Depot, Inc. v. Am. Airlines, Inc., 281 S.W.3d 215, 220
(Tex. App.—Fort Worth 2009, pet. denied), cert. denied, 130 S. Ct. 2061 (2010).
14
Frequent Flyer Depot, 281 S.W.3d at 220.
15
Butnaru, 84 S.W.3d at 204; Frequent Flyer Depot, 281 S.W.3d at 220.
7
In an appeal from an order granting or denying a temporary injunction, the
scope of review is restricted to the validity of the order granting or denying
relief.16 Whether to grant or deny a request for a temporary injunction is within
the trial court‘s discretion, and we will not reverse its decision absent an abuse of
discretion.17 A trial court does not abuse its discretion if it bases its decision on
conflicting evidence and at least some evidence in the record reasonably
supports the trial court‘s decision.18 When the trial court does not file findings of
fact or conclusions of law, we must uphold the court‘s order on any legal theory
supported by the record.19
Analysis
As the Burgesses point out, the trial court based its denial of their
application for a temporary injunction on the ―probable right to recover‖ element,
specifically ―on the basis that [the Burgesses could not] show that [Appellees]
acted illegally, unreasonably, or arbitrarily in setting or assessing the service of
citation by certified mail fee.‖ The Burgesses contend that the commissioners
court of Denton County did not authorize a fee of $60 for service of process by
16
Walling, 863 S.W.2d at 58; Frequent Flyer Depot, 281 S.W.3d at 220.
17
Butnaru, 84 S.W.3d at 204; Frequent Flyer Depot, 281 S.W.3d at 220.
18
Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978); Frequent Flyer Depot,
281 S.W.3d at 220.
19
Davis, 571 S.W.2d at 862.
8
certified mail, or, alternatively, if it did, it acted unreasonably and arbitrarily when
it did so.
The legislature has provided in government code section 51.319 that
district clerks must collect fees for certain services.20 The district clerk has no
discretion to not collect the fees discussed in that section.21 Section 51.319
discusses two specified categories of services and has one general catchall
provision. In subsection (1), which is not at issue in this case, the legislature set
the fees for providing services relating to the matter of the estate of a deceased
person or a minor.22 Subsection (2), applicable to this case, relates to service of
process by mail. The legislature has delegated to a county commissioners court
the ability to set the fee that sheriffs or constables are authorized to charge for
providing service of citation by certified or registered mail,23 and under
subsection (2), the legislature has directed the district clerk to collect the same
fee when the clerk provides that service.24 Specifically, the statute says that
―[t]he district clerk shall collect . . . for serving process by certified or registered
20
Tex. Gov‘t Code Ann. § 51.319 (West 2005).
21
Id. (stating that the district clerk ―shall collect the following fees‖)
(emphasis added).
22
Id. § 51.319(1).
23
Tex. Loc. Gov‘t Code Ann. § 118.131(a), (b) (West 2008).
24
Tex. Gov‘t Code Ann. § 51.319(2).
9
mail, the same fee that sheriffs and constables are authorized to charge for the
service under [local government code section 118.131].‖25
Under local government code section 118.131, what the sheriffs and
constables ―are authorized to charge‖ is a reasonable fee that may be set by the
commissioners court and that may not be ―higher than is necessary to pay the
expenses of providing the service.‖26 In other words, if the commissioners court
has set a fee for a sheriff‘s or constable‘s service of citation by certified mail, then
that is the fee that the district clerk must collect when providing that service. The
amount of the fee that a district clerk must charge is therefore based on the costs
to a sheriff or constable in providing the service and not the cost to the district
clerk. That is, this fee may be more than the cost a district clerk incurs in
providing the service, but it may not be higher than is actually necessary to cover
the costs of the sheriff or constables in serving citation by certified or registered
mail.27
In summary, section 118.131 allows the commissioners court to set a
reasonable fee for service by certified mail by a sheriff or constable, and if the
commissioners court has done so, then the district clerk must charge the same
fee. But what if the commissioners court has not set a fee for providing that
25
Id.
26
Tex. Loc. Gov‘t Code Ann. § 118.131(a), (b).
27
Id. § 118.131(b).
10
particular service? Section 118.131 addresses that scenario, providing that for
services for which the commissioners court has not set a fee, the fees for the
services ―are those fees provided by law in effect on August 31, 1981.‖28
As with the district clerk, the county clerk is also directed to collect a fee for
service of process by certified or registered mail, and this fee is also set at
whatever fee the sheriffs have been authorized to charge for that service by the
commissioners court.29 Like the district court, the county clerk has no discretion
to not collect a fee for providing the service.30 Thus, to determine what fee
Appellees should be charging for providing service of citation by certified or
registered mail, we first look to see what fee, if any, the commissioners court has
authorized sheriffs and constables to charge for providing that same service.
In our opinion in Victor‘s previous action, we stated that
[a]lthough Burgess contended during oral argument that the word
―citation‖ in the commissioners court‘s schedule of sheriff/constable
fees refers only to service by personal delivery rather than by
certified mail, nothing in the schedule of fees or in the remainder of
the record indicates that the commissioners court intended to limit
the meaning of the word ―citation‖ in that way, and the rules of civil
28
Id. § 118.131(h).
29
Id. §§ 118.052(3)(F) (―Each clerk of a county court shall collect the
following fees for services rendered to any person: . . . Mail Service of Process
(Sec. 118.063) . . . same as sheriff.‖), .063 (―The fee for ‗Mail Service of
Process‘ . . . is for the clerk‘s service of process by certified or registered mail.
The fee is the same amount that sheriffs and constables are authorized to charge
under [s]ection 118.131.‖).
30
Id. § 118.052(3)(F) (stating that the ―clerk of a county court shall collect‖
a fee to mail service of process) (emphasis added).
11
procedure and Texas courts signal that Texas sheriffs and
constables may serve citation by certified mail, not only by personal
delivery. Therefore, we hold that the commissioners court‘s
authorization of a $60 fee for service of an unspecified manner of
―citation‖ authorizes the charging of that fee when the citation is
served by certified mail.31
In this action, however, the Burgesses offered and the trial court admitted
evidence that, according to the Burgesses, shows that the commissioners court
did not intend to include service by mail in its fee schedule.
One piece of such evidence is a copy of the video taken of the
commissioners court meeting on September 29, 2009, at which the fees in
question were approved. The commissioners did not discuss the
reasonableness of the fee for service of citation, how the fee was determined, or,
importantly, whether the fee was intended to cover service by certified or
registered mail. Dotson, who has since 2005 served on the committee that
makes recommendations to the commissioners court about such fees, testified
that he did not remember the committee discussing service by certified mail; that
to his knowledge, ―it was not on the fee list‖; and that the committee made no
findings about that manner of service.
This testimony is evidence that the commissioners court did not make any
findings about the reasonableness of a fee for citation by certified mail performed
by sheriffs or constables and did not consider evidence to determine what fee
would be necessary to cover the expenses of providing such a service.
31
Burgess I, 313 S.W.3d at 850–51 (citations omitted) (emphasis added).
12
According to Dotson‘s testimony, the commissioners court did not consider the
factors that it was required to consider before setting such a fee.32 But more than
that, the complete absence of any evidence that this type of service was even
discussed, and the affirmative evidence that in fact this type of service was not
considered by the committee in making its recommendation to the
commissioners court (or by the court at the meeting approving the fees), is
circumstantial evidence that the commissioners court did not set a fee for service
by certified mail and did not intend to do so. 33 Appellees produced no
contradictory evidence suggesting either that the commissioners court
considered the cost of providing service by certified mail or that they intended to
authorize the fee for sheriffs and constables to charge when providing that type
of service.
If the commissioners court did not set a fee for service by certified or
registered mail under section 118.131, then the fee that sheriffs and constables
are authorized to charge (and, therefore, the fee that the district clerk and county
clerk are authorized to charge) is the fee provided by law for that service as of
August 31, 1981.34 If no such fee has been set, based on the record before us,35
32
See Tex. Loc. Gov‘t Code Ann. § 118.131.
33
See Tex. First Nat’l Bank v. Ng, 167 S.W.3d 842, 853 (Tex. App.—
Houston [14th Dist.] 2005, pet. granted, judgment vacated w.r.m.) (―Intent may
certainly be proven by circumstantial evidence.‖).
34
See Tex. Loc. Gov‘t Code Ann. § 118.131(h).
13
Appellees have no authority to assess the amount of $60 as a fee unless that
was the amount of the fee as set by law as of August 31, 1981. 36 From the
limited record, it appears that not only has the commissioners court not set the
fee at an amount no higher than is necessary to pay the expense of providing
service of citation by certified or registered mail, the commissioners court has not
set any fee at all for that service. Accordingly, we hold that the Burgesses have
shown a probable right to recovery on their declaratory judgment action. We
therefore hold that the trial court abused its discretion by denying the application
for temporary injunction ―on the basis that [the Burgesses could not] show that
[Appellees] acted illegally, unreasonably, or arbitrarily in setting or assessing the
service of citation by certified mail fee.‖
Because no findings of fact and conclusions of law were filed,37 we must
affirm the trial court‘s order on any legal theory supported by the record. 38 We
therefore must also consider whether the Burgesses (1) pled a cause of action
35
See Davis, 571 S.W.2d at 862 (―This court will not assume that the
evidence taken at a preliminary hearing will be the same as the evidence
developed at a full trial on the merits.‖).
36
See Tex. Loc. Gov‘t Code Ann. § 118.131(h).
37
The trial court did file of record a prejudgment letter to the parties stating
the basis for its judgment, but we do not consider this letter to constitute findings
of fact or conclusions of law. See Cherokee Water Co. v. Gregg County
Appraisal Dist., 801 S.W.2d 872, 878 (Tex. 1990) (stating that a prejudgment
letter to the parties ―was not competent evidence of the trial court‘s basis for
judgment‖).
38
Davis, 571 S.W.2d at 862.
14
and (2) demonstrated a probable, imminent, and irreparable injury during the
pendency of their case.39 The Burgesses pled a cause of action under the
declaratory judgment statute in that they are persons whose rights are affected
by a statute (namely, the fee statutes at issue here), and they seek a declaration
of their ―rights, status, or other legal relations thereunder.‖40
As for the injury requirement, they argued—and Edith testified at the
hearing—that the Denton County Bail Bond Board‘s policy is that if a bail bond
company does not pay an outstanding judgment arising from a judgment nisi by
the thirty-first day after it has been entered, the board suspends the company‘s
license. And by law, the Denton County Bail Bond Board is required to notify the
sheriff if a bail bond surety fails to pay a final judgment of forfeiture not later than
the thirty-first day after the date of the judgment.41 Upon receiving such
notification, the sheriff is prohibited from accepting any bonds from the bail bond
surety until the judgment is paid; and the board must, after notice and hearing,
revoke the surety‘s license if the surety fails to pay the judgment.42 Thus, if fees
of $60 are not authorized but are nonetheless included in a bill of costs, the
Burgesses would have to pay the unauthorized fees or risk losing their licenses.
39
Id.; see also Butnaru, 84 S.W.3d at 204.
40
See Tex. Civ. Prac. & Rem. Code Ann. § 37.004 (West 2008) (providing
for declaratory relief).
41
Tex. Occ. Code Ann. § 1704.2535(a) (West 2004).
42
Id. §§ 1704.253, .2535(b).
15
At the same time, if any of the trial courts in which bond forfeiture
proceedings are pending assess the fee for service by certified mail, the
Burgesses may not challenge the reasonableness of the fee in that proceeding. 43
Furthermore, if the Burgesses were required to pay the fee while this case is
pending below, then even if it is finally determined that the authorized fee is less
than $60, the Burgesses could potentially be barred by limitations from seeking
reimbursement for the unauthorized portion of the fee that they paid, depending
on when this case is finally determined.44 The Burgesses therefore met their
burden to show probable and imminent injury as well as the lack of an adequate
remedy at law.45
Appellees argue that the Burgesses have an adequate remedy because
they have the option of waiving citation and therefore not being assessed the fee.
The Burgesses should not be required to waive their rights to notice in order to
obtain equitable relief to which they would otherwise be entitled. Appellees also
43
Burgess I, 313 S.W.3d at 854 (―Burgess‘s challenge to the
commissioners court‘s order is not an assertion that the order is void, and . . . the
challenge may not be made in this collateral bond forfeiture proceeding but must
instead be raised in a separate action.‖).
44
See Lubbock Cnty., Tex. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d
580, 585 (Tex. 2002) (holding that a cause of action seeking reimbursement from
a county for unauthorized charges accrues when the payment to the county is
made).
45
See TCA Bldg. Co, v. Nw. Res. Co., 890 S.W.2d 175, 179 (Tex. App.—
Waco 1994, no writ) (noting that damages alone do not provide an adequate
remedy when the damage award may come too late to save the applicant‘s
business).
16
argue that the Burgesses could ask for stays in the pending bond forfeiture
cases. Requiring the Burgesses to file for a stay in each of the hundreds of
pending cases is not as practical and efficient as enjoining Appellees from
collecting the fee,46 even assuming that the trial court in each case would grant
the requested relief. We therefore hold that the Burgesses have demonstrated
the absence of an adequate remedy at law.
Having held that the Burgesses are entitled to some form of injunctive
relief, we must now determine what manner of relief will serve the purpose of an
injunction to preserve the status quo. We believe that this case is similar to
Transport Co. of Texas v. Robertson Transports, Inc., in which the Texas
Supreme Court considered the validity of a temporary injunction restraining
Robertson Transports from operating or commencing to operate under an order
of the Railroad Commission.47 Robertson, which held a certificate as a
specialized motor carrier, filed an application with the Commission for an
amendment to its certificate, which would authorize it to transport certain
chemicals.48 Transport Co. and others objected to the amendment. After a
46
Frequent Flyer Depot, 281 S.W.3d at 229 (stating that an adequate
remedy is one that is as complete, practical, and efficient to the prompt
administration of justice as is equitable relief).
47
152 Tex. 551, 555, 261 S.W.2d 549, 551–52 (1953).
48
Id. at 553, 261 S.W.2d at 550.
17
hearing, the Commission ordered the amendment.49 Transport Co. then filed suit
to invalidate the order, and in its petition, it sought a temporary injunction to
restrain Robertson from operating under the order.50 The trial court granted the
temporary injunction, and the court of appeals reversed.51
On review, Robertson argued that the Commission‘s order granting the
certificate created the status quo, but the court held that if Robertson was
correct, then ―a plaintiff could never obtain temporary relief from operation under
an invalid order even though his business was threatened with destruction before
a trial on the merits could be had.‖52 The Supreme Court determined that the
status quo in that case ―was the status of the controversy as it existed prior to the
entry of the Commission‘s order.‖53
In this case, if the status quo were the clerk‘s ability to assess and collect
an unauthorized $60 fee (assuming that the fee was not authorized), then the
Burgesses could never obtain temporary relief from the operation of the invalid
assessment because they would have to choose either risking the loss of their
licenses by not paying the fees or paying fees not authorized by law that they
49
Id. at 553–54, 261 S.W.2d at 551.
50
Id. at 554, 261 S.W.2d at 551.
51
Id.
52
Id. at 558, 261 S.W.2d at 554.
53
Id.
18
might not ever be able to recover. And because the Burgesses contested the
authority of the clerks to assess and collect the $60, the clerks‘ assessment and
collection of that amount cannot be the last noncontested status of the parties.
We conclude therefore that allowing the clerks to continue to assess and collect
from the Burgesses a fee of $60 would not be a preservation of the status quo.
But at the same time, the clerks are required by statute to assess a fee of
some amount. The Burgesses contest the amount of that fee but not the fact that
some fee must be assessed. Thus, if this court were to order the trial court to
enjoin the clerks from including any fee for the service in a bill of costs after a
final judgment of forfeiture, then we would not be preserving the status quo.
If the commissioners court has set a fee for the service, whether at $60 or
some other amount, then that is the fee that the clerks must collect. If the
commissioners court has not set the fee, then the fee that must be collected is
the amount that was set by law as of August 31, 1981. But a determination at
this stage as to what specific fee the clerks are actually authorized to charge
would require us make a determination on the merits, and we are prohibited from
doing so.54 Accordingly, we believe the preservation of the status quo can be
achieved by a temporary injunction that would allow the clerks to include the $60
54
See Reach Group, L.L.C. v. Angelina Group, 173 S.W.3d 834, 837 (Tex.
App.—Houston [14th Dist.] 2005, no pet.) (―At a temporary injunction hearing, the
ultimate merits of the case are not before the trial court.‖); see also Davis, 571
S.W.2d at 862 (holding that the appellate court erred in its review of a temporary
injunction by giving full consideration to the merits of the underlying lawsuit).
19
fee for service by certified or registered mail in the bill of costs and allow the
Burgesses to pay that portion of the bill of costs into the registry of the trial court
in this case.
Thus, the temporary injunction should not be framed to prevent Denton
County trial courts from adjudicating the bond forfeiture claims in which the
Burgesses, as sureties, are parties. The trial courts may, as usual, order that
costs will be paid by the sureties without determining the total amount of the
specific costs to be taxed against them in the bill of costs.55 Furthermore, the
clerks should not be enjoined from preparing the bill of costs after a trial court
renders judgment in a bond forfeiture case or from taxing the cost, if any, for
service of citation by certified mail, whether that service was provided by a clerk
or by a sheriff or constable.
The trial court should, however, require the Burgesses to pay any fee
assessed for service of citation by certified or registered mail into the registry of
the trial court in this case and to pay the remainder of the judgment as otherwise
55
See Madison v. Williamson, 241 S.W.3d 145, 158 (Tex. App.—Houston
[1st Dist.] 2007, pet. denied) (noting that the trial court‘s role is to adjudicate
which party is responsible for paying the costs of court but not to determine the
correctness of specific items; that the judgment should not state the amount
taxed as costs, but only that costs are awarded against a certain party; and that it
is the ministerial duty of the clerk to tax costs in accordance with the rules of civil
procedure); see also Tex. Code Crim. Pro. Ann. art. 22.16 (West 2009) (setting
out when the trial court may, after forfeiture, remit to the surety the amount of the
bond less costs), art. 103.001 (West 2006) (―A cost is not payable by the person
charged with the cost until a written bill is produced or is ready to be produced,
containing the items of cost, signed by the officer who charged the cost or the
officer who is entitled to receive payment for the cost.‖).
20
required. Provided that the Burgesses follow this procedure, the trial court
should enjoin the clerks from issuing execution on the portion of the costs bill
taxing the fee for service by certified or registered mail. 56 And because the
Burgesses‘ payment of the $60 into the trial court‘s registry would satisfy their
obligation to pay the portion of the court costs for service by certified or
registered mail, the Burgesses would be protected from any action by the bail
bond board to suspend their licenses on the basis that they had not paid that
portion of a final judgment of forfeiture. The trial court should enjoin the bail bond
board from taking action to suspend the Burgesses‘ licenses on the basis that
they have not paid that portion of the costs, provided that the amount is paid into
the registry of the court. We note that the Burgesses represented to the trial
court that they were willing to follow just such a procedure.
An injunction of this nature will preserve the status quo and protect the
rights of the parties pending final determination of the case below. If it is finally
determined that the county commissioners have set a fee of $60 for the service
and that this fee is no higher than necessary to pay the expenses of providing the
service, then the funds in the trial court‘s registry will be released to the clerks,
56
See Tex. R. Civ. P. 129 (providing that when a party fails to pay costs
within ten days after demand, the clerk may make a certified copy of the bill of
costs and provide it to the sheriff or constable for collection); Tex. R. Civ. P. 149
(providing that when costs have not been paid, the clerk may issue execution
against the party owing the costs); see also Tex. Code Crim. Pro. Ann. art. 22.14
(West 2009) (providing that execution shall issue against each party for the
amount adjudged against him in a final judgment of forfeiture).
21
putting them in the same position with respect to the fee that they would have
been in had the Burgesses not filed this suit. If, on the other hand, it is
determined that the allowed fee is some lower amount, then the clerks will be
able to recover that amount, and the remainder will be released to the
Burgesses, protecting the Burgesses from paying more than they are required
under the law.
As a final note on the framing of this injunction, we acknowledge that the
code of criminal procedure provides that after forfeiture of a bond but before final
judgment, the trial court may (and in some instances must) remit part of the
bond, less certain costs (including court costs), to the surety. 57 The trial court
should fashion the injunction to address this provision in light of this opinion.
Having held that the Burgesses met all the requirements for a temporary
injunction, we hold that the trial court abused its discretion by denying the
Burgesses motion for a temporary injunction, and we sustain the Burgesses‘ sole
issue.
III. Appellees’ Cross-Appeals
On cross-appeal, Appellees argue in two issues that the trial court erred by
denying their pleas to the jurisdiction based on legislative immunity and based on
lack of jurisdiction over the Burgesses‘ declaratory judgment action.
57
See Tex. Code Crim. Pro. Ann. art. 22.16.
22
Appellees assert in their first issue that the commissioners court is entitled
to legislative immunity with regard to its setting the fee for service by certified
mail because its decision as to the fee constitutes a legislative act. 58 But we
have held that, based on the record before us, the commissioners court has not
set any such fee. The commissioners court has therefore not taken an action
that constitutes a legislative act. Appellees present no other arguments
explaining why they would be entitled to legislative immunity. Accordingly, we
overrule this issue.
Appellees argue in their second issue that the trial court erred by denying
their pleas to the jurisdiction because the trial court did not have jurisdiction over
the Burgesses‘ declaratory judgment action. They assert that a declaratory
judgment action is not available to settle disputes already pending before a court
but that the Burgesses seek to have the certified mail fee deemed unreasonable
in bond forfeiture cases that have already been filed in other trial courts. Thus,
they argue, the reasonableness of a certified mail fee would be determined in the
courts where the bond forfeiture cases were filed.
Based on our prior holding in Burgess I, the trial court did not err by
denying the pleas to the jurisdiction on this ground. We have already held that
58
See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.
2004) (discussing legislative immunity); Brown v. Lubbock Cnty. Comm’r Court,
185 S.W.3d 499, 505 (Tex. App.—Amarillo 2005, no pet.) (holding that the
members of the commissioners court had legislative immunity for their
performance of legislative functions).
23
the Burgesses may not challenge a fee assessed by the commissioners court in
a bond forfeiture proceeding,59 and, therefore the bond forfeiture proceedings are
not the proper venue for the Burgesses to pursue the claim that they bring in this
suit. We overrule Appellees‘ second issue.
IV. Conclusion
Having overruled Appellees‘ two issues, we affirm the trial court‘s denial of
the pleas to the jurisdiction. Having sustained the Burgesses‘ sole issue, we
reverse the trial court‘s order denying their motion for temporary injunction and
remand this cause to the trial court with instructions to grant their motion for
temporary injunction in accordance with this opinion.
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.
DELIVERED: January 19, 2012
59
See Burgess I, 313 S.W.3d at 854.
24