Opinion issued May 2, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00214-CV
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FELIX MICHAEL KUBOSH D/B/A KUBOSH BAIL BONDING, ET AL.,
APPELLANTS
V.
HARRIS COUNTY AND CHRIS DANIEL, IN HIS OFFICIAL CAPACITY
AS DISTRICT CLERK OF HARRIS COUNTY, APPELLEES
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Cause No. 2011-56598
OPINION
Forty-one Harris County bail bondsmen (collectively identified through their
lead plaintiff, Felix Kubosh) sued Harris County and the Harris County District
Clerk, Chris Daniel, alleging that Harris County improperly has assessed civil
court filing fees in criminal bond-forfeiture cases. In his suit, Kubosh seeks (1) a
declaratory judgment that civil court filing fees must not be charged in bond
forfeiture cases; (2) an injunction to prevent the continued assessment of the fees;
and (3) the refund of fees the bondsmen have paid. The County responded with a
plea to the jurisdiction and a motion for summary judgment. The trial court granted
the plea and dismissed the case. On appeal, Kubosh contends that (1) governmental
immunity does not bar his action seeking a refund, because the county’s fee
assessments were illegal; and (2) the trial court in any event has jurisdiction over
his claims for declaratory and injunctive relief.
We conclude that governmental immunity bars Kubosh from seeking a
refund. We further conclude that the trial court lacks subject matter jurisdiction to
hear Kubosh’s claims for declaratory and injunctive relief, because these
complaints arise in connection with criminal cases and should be brought in
criminal court in the first instance. We therefore affirm the order of the trial court
dismissing the case for lack of jurisdiction.
Background
When a criminal defendant fails to appear in court, the state institutes a
bond-forfeiture proceeding under the rules of criminal procedure. See TEX. CODE
CRIM. PROC. ANN. art. 22.01; see generally TEX. CODE CRIM. PROC. ANN. ch. 22
(governing forfeiture of bail). Bond forfeiture actions are brought in criminal court.
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See, e.g., Safety Nat’l Cas. Corp. v. State, 273 S.W.3d 157, 163 (Tex. Crim. App.
2008). Typically, a bond forfeiture judgment includes the court costs necessarily
incurred to establish the forfeiture. See id. at 164. The district clerk charges these
costs in a bill of costs. Bail bondsmen often ultimately discharge these court costs,
as the bail sureties of the bail bonds.
For a number of years, Harris County did not assess filing fees as court costs
in bail bond forfeiture cases. About a month before Kubosh filed this suit,
however, the district clerk began to charge a filing fee in bond forfeiture cases. The
clerk assesses the fee in a bill of costs in connection with any eventual bond
forfeiture judgment.
If a bail bondsman fails to discharge the fees assessed in a bond forfeiture
judgment, then the bondsman may not post bail in Harris County until the
judgment is satisfied. TEX. OCC. CODE ANN. § 1704.2535 (West 2012). Kubosh,
one of the aggrieved bail bondsmen who are parties to this appeal, has paid
assessed fees in criminal bond-forfeiture proceedings. He and the other bondsmen
have filed this suit in civil district court to protest their assessment.
Discussion
I. Standard of Review
We review the trial court’s ruling on a plea to the jurisdiction de novo if, as
here, the jurisdictional facts are undisputed. State v. Holland, 221 S.W.3d 639, 642
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(Tex. 2007) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
225–26 (Tex. 2004)). The plaintiff must allege facts that affirmatively establish the
trial court’s subject matter jurisdiction. Id.; City of Pasadena v. Kuhn, 260 S.W.3d
93, 95 (Tex. App.—Houston [1st Dist.] 2008, no pet.). In determining whether the
plaintiff has satisfied this burden, we construe the pleadings liberally in the
plaintiff’s favor and deny the plea if the plaintiff has alleged facts affirmatively
demonstrating jurisdiction to hear the case. Miranda, 133 S.W.3d at 226–27; Smith
v. Galveston Cnty., 326 S.W.3d 695, 697–98 (Tex. App.—Houston [1st Dist.]
2010, no pet.).
Subject matter jurisdiction is essential for a court to have authority to decide
a case; it is never presumed and cannot be waived. Alfonso v. Skadden, 251 S.W.3d
52, 55 (Tex. 2008) (per curiam) (holding subject matter jurisdiction cannot be
waived and can be raised at any time); Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 443–44 (Tex.1993).
II. Refunds
Governmental immunity protects political subdivisions of the state from
lawsuits for money damages unless immunity has been waived. Reata Constr.
Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). But claims for a refund
are different than claims for money damages—due process requires that persons
who have paid illegal or invalid taxes or fees under duress have some recourse to
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recover the fees. Dallas Cnty. Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 882 n.
9 (Tex. 2005). Accordingly, a party who pays an illegal or invalid fee to a
governmental unit under duress may seek a refund regardless of whether immunity
has been waived. Id. at 877; Nivens v. City of League City, 245 S.W.3d 470, 474
(Tex. App.—Houston [1st Dist.] 2007, pet. denied); Austin Nat’l Bank v.
Sheppard, 71 S.W.2d 242, 246 (Tex. 1934). The proceeding need not be one
confined to civil district court; the legislature may provide a specific procedure to
challenge fees or taxes that will supplant this remedy. BMG Direct Mktg., Inc. v.
Peake, 178 S.W.3d 763, 769–71 (Tex. 2005) (noting that “other legal and statutory
remedies have evolved over time to supplant the rule’s application in many of
these contexts.”); Bolton, 185 S.W.3d at 879 (noting refund mechanisms and
protest requirements when challenging taxes that have supplanted the common-law
requirements for voluntary payment and duress in some cases). If a process exists
to contest a fee, then a person who nonetheless pays it cannot later claim to have
paid the fee under duress. See Bolton, 185 S.W.3d at 881; In re Nestle USA, Inc.,
359 S.W.3d 207, 210 (Tex. 2012).
Such a process exists in criminal bond-forfeiture cases. Kubosh may
challenge costs assessed in a bond forfeiture judgment through a motion to correct
or retax costs in the criminal court hearing the request that it hold the bond forfeit,
and through a direct appeal from the judgment assessing the fee as a court cost. See
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TEX. CODE CRIM. PROC. ANN. arts. 103.008 & 44.42 (West 2006) (providing for
motion to correct court costs and for appeal of bond-forfeiture judgment). These
statutes provide a procedure to challenge the costs via judicial review in the
criminal court in which the fees have been assessed, thus satisfying due process.
See Bolton, 185 S.W.3d at 880. Because bondsmen have an adequate opportunity
to challenge the costs assessed, we reject the claim that they discharged the fees
under duress. See id.
Kubosh directs us to several cases holding that bail bond fees were paid
under duress when failure to pay the fees would result, as here, in the inability of
the bail bondsmen to post bail in subsequent cases. See, e.g., Camacho v.
Samaniego, 954 S.W.2d 811, 826–27 (Tex. App.—El Paso 1997, writ denied);
Vannerson v. Klevenhagen, 908 S.W.2d 37, 41 (Tex. App.—Houston [1st Dist.]
1995, writ denied); Bowles v. Reed, 913 S.W.2d 652, 657 (Tex. App.—Waco 1995,
writ denied); Kubosh v. City of Houston, 2 S.W.3d 463, 469–470 (Tex. App.—
Houston [1st Dist.] 1999, pet. denied) (Kubosh I). In those cases, however,
authorities collected the fees outside of a judicial proceeding—immediate fee
payment was required to post the bond. See, e.g., Camacho, 954 S.W.2d at 826
(fee paid by bondsmen to sheriff as prerequisite to post bond); Vannerson, 908
S.W.2d at 41 (same); Bowles, 913 S.W.2d at 657 (processing and bond approval
fees paid to the sheriff to post bond). In Kubosh I, for example, because any
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defendant charged with a crime was assessed a fee, no judgment existed from
which to appeal for those defendants who were not convicted. 2 S.W.3d at 469–
470. The defendants paid the fees under duress because no recourse existed to
challenge their assessment. See id. In contrast, the fees in this case were assessed
as court costs in judicial proceedings—ones that culminated in bond-forfeiture
judgments. Because the legislature has provided a means to challenge their
assessment as a part of the judicial proceeding, the bondsmen have not established
the sort of duress required for a waiver of immunity.
Kubosh relies on Burgess v. State (Burgess I), a criminal case, to argue that
bond-forfeiture proceedings are not the proper vehicle to challenge court costs
assessed therein. 313 S.W.3d 844, 847 (Tex. App.—Fort Worth 2010, no pet.).
Burgess I reviewed the assessment of two items of costs and held that one was
authorized by the Government Code and the other was authorized by a county
commissioner’s court order. Id. at 853–54. The court declined to review whether
the county commissioner’s court order was valid, holding that the order could only
be challenged through a civil action. Id. Kubosh challenges the district clerk’s
application of a statute to specific assessments in criminal proceedings, more like
the challenges permitted in Burgess I, and unlike a challenge to the validity of an
order of a commissioner’s court. Id. at 851.
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We hold that Kubosh has not established a waiver of governmental
immunity for his refund claim, because the fees in this case were not paid under
duress for lack of a judicial process to challenge them. The trial court thus
correctly granted the jurisdictional plea as to the claim for monetary relief.
III. Declaratory and Injunctive Relief
Courts exercising criminal jurisdiction ordinarily determine the meaning and
validity of a criminal statute. State v. Morales, 869 S.W.2d 941, 944 (Tex. 1994)
(explaining “narrow circumstances under which an equity court can construe a
criminal statute”); Tex. Liquor Control Bd. v. Canyon Creek Land Corp., 456
S.W.2d 891, 894 (Tex. 1970). A party cannot seek to enjoin enforcement of a
criminal statute in a civil proceeding unless it challenges the constitutionality of
the provision and proves an irreparable injury to its vested property rights. Tex.
Educ. Agency v. Leeper, 893 S.W.2d 432, 441 (Tex. 1994); Morales, 869 S.W.2d
at 945. If questions regarding criminal statutes can be resolved in a criminal
proceeding, a trial court should not assert civil jurisdiction to answer them. See
Morales, 869 S.W.2d at 945 (citing Passel v. Fort Worth Indep. Sch. Dist., 440
S.W.2d 61, 63 (Tex. 1969)). The limits on a district court’s civil jurisdiction to
construe or enjoin enforcement of a criminal statute apply to suits seeking
declaratory or injunctive relief. Morales, 869 S.W.2d at 947.
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The restriction on a civil court’s jurisdiction to construe or enjoin the
enforcement of criminal statutes is similar to the Texas Supreme Court’s related
jurisdictional limit to all but “criminal law matters.” See Heckman v. Williamson
Cnty., 369 S.W.3d 137, 149 (Tex. 2012) (explaining that dispute seeking to enjoin
or construe criminal statute “was no doubt itself a ‘criminal law matter’ beyond
[the Texas Supreme Court’s] appellate jurisdiction”). “Disputes which arise over
the enforcement of statutes governed by the Texas Code of Criminal Procedure,
and which arise as a result of or incident to a criminal prosecution, are criminal law
matters.” Harrell v. State, 286 S.W.3d 315, 318 (Tex. 2009) (quoting Curry v.
Wilson, 853 S.W.2d 40, 43 (Tex. Crim. App. 1993)).
The policy favoring construction of criminal statutes in criminal proceedings
is, in part, based on pragmatic concerns resulting from the separate and distinct
jurisdiction allocated by the Texas Constitution to civil and criminal courts.
Morales, 869 S.W.2d at 947. Permitting civil and criminal proceedings regarding
construction of a criminal statute could “create confusion . . . and might result
finally in precise contradiction of opinions between the [civil courts] and the Court
of Criminal Appeals to which the Constitution has intrusted supreme and exclusive
jurisdiction in criminal matters.” Morales, 869 S.W.2d at 947–48 (quoting Roberts
v. Gossett, 88 S.W.2d 507, 509 (Tex. Civ. App.—Amarillo 1935, no writ)). We
look the statute’s consequences to determine if it is a criminal statute. Leeper, 893
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S.W.2d at 441–42 (holding statute that was criminal in nature was not criminal
statute because it had civil consequences unrelated to criminal prosecution).
Kubosh seeks a declaration that Texas Code of Criminal Procedure article
22.10 does not permit a criminal trial court to assess civil filing fees in bond-
forfeiture cases, and an injunction preventing the district clerk from assessing these
fees as court costs. The district clerk assessed the challenged costs incident to the
prosecution of the criminal bond-forfeiture case, a criminal matter. See Harrell,
286 S.W.3d at 318. The resolution of this dispute turns on the construction of
Texas Code of Criminal Procedure article 22.10, a criminal statute. The statute has
consequences related to a criminal, not a civil, proceeding. See Leeper, 893 S.W.2d
at 441. Kubosh seeks to have a civil court construe what is a criminal statute, both
in expression and in operation.
For the civil trial court to have jurisdiction over Kubosh’s claims for
declaratory and injunctive relief, Kubosh must challenge the constitutionality of
the statute and prove that his property rights are subject to irreparable harm.
Morales, 869 S.W.2d at 947. Kubosh challenges the district clerk’s construction of
a criminal statute, not its constitutionality. Because a criminal defendant can move
to correct or re-tax costs in the trial court or appeal their assessment, see TEX.
CODE CRIM. PROC. ANN. arts. 103.008 & 44.42, Kubosh has not shown harm to his
vested property rights, and thus, he does not present us with an irreparable injury.
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See Passel, 440 S.W.2d at 63. Accordingly, the civil trial court properly dismissed
the case because it lacked jurisdiction to hear Kubosh’s claims for declaratory and
injunctive relief.
The construction in a court of civil jurisdiction of a statute defining the
procedures in criminal bond-forfeiture proceedings is incompatible with the
pragmatic justifications for limits on civil jurisdiction to address criminal statutes.
The Court of Criminal Appeals has developed an extensive body of case law
construing article 22.10 to determine which civil rules apply to bond-forfeiture
cases, including whether certain civil costs are chargeable. See e.g., Dees v. State,
865 S.W.2d 461, 462 (Tex. Crim. App. 1993) (en banc) (permitting assessment of
civil court costs in bond-forfeiture cases); Rodriguez v. Marquez, 4 S.W.3d 227,
228 (Tex. Crim. App. 1999) (en banc) (holding that civil removal statute in
Government Code does not apply to bond-forfeiture proceedings because they are
criminal in nature); State v. Sellers, 790 S.W.2d 316, 321 (Tex. Crim. App. 1990)
(en banc) (refusing to apply civil rule governing right to appeal in bond-forfeiture
appeal); Alvarez v. State, 861 S.W.2d 878, 881 (Tex. Crim. App. 1992) (en banc)
(applying civil summary judgment standard in bond-forfeiture proceeding on
appeal). In Safety National Casualty Corporation v. State, the Court of Criminal
Appeals interpreted an analogous statute, article 44.44, to determine that civil
appellate filing fees could not be charged in bond-forfeiture cases. 305 S.W.3d
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586, 587 (Tex. Crim. App. 2010). Because the questions presented here potentially
could be reviewed in any criminal bond-forfeiture proceeding, if properly raised,
any decision of the Texas Supreme Court or court exercising civil jurisdiction
construing this statute could create a potential conflict. See Morales, 869 S.W.2d at
948 n.16 (“it is the prospect that civil courts will get into the business of construing
criminal statutes which represents the real danger.”).
Conclusion
We hold that governmental immunity bars the bondsmen’s refund claims.
We further hold that the civil trial court lacked subject matter jurisdiction to hear
their claims for injunctive and declaratory relief. We therefore affirm the trial
court’s order granting the plea to the jurisdiction and dismissing the bondsmen’s
claims.
Jane Bland
Justice
Panel consists of Justices Jennings, Bland, and Massengale.
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