Victor J. Burgess, Individually and D/B/A Eydie's Bail Bonds, and Edith Burgess, Individually and D/B/A Burgess Bail Bonds v. 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

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

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 FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

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OPINION

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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.‖).

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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).

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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.

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 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).

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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.

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