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

IN THE SUPREME COURT OF TEXAS
444444444444
NO . 14-0379
444444444444

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

THOMAS A. WILDER, TARRANT COUNTY DISTRICT CLERK, RESPONDENT

4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS
4444444444444444444444444444444444444444444444444444

Argued September 23, 2015

CHIEF JUSTICE HECHT delivered the opinion of the Court.

JUSTICE LEHRMANN did not participate in the decision.

The trial court temporarily enjoined the District Clerk of Tarrant County from billing court

costs to parties who had filed uncontested affidavits of indigency. A divided court of appeals vacated

the injunction and dismissed the case because the trial court had not rendered the judgments in the

cases in which costs were billed.1 We consider whether the trial court had jurisdiction over a

challenge to the District Clerk’s exercise of his ministerial duties, and if so, whether injunctive relief

1
430 S.W .3d 474 (Tex. App.— Fort W orth 2014).
is appropriate. We reverse the judgment of the court of appeals and remand the case to the trial court

for further proceedings.

I

Petitioners are six individuals2 who sued for divorce in Tarrant County between 2008 and

2012. Like thousands of other parties to divorce cases in the family district courts of Tarrant County

during that period, Petitioners each filed an uncontested affidavit of indigency in lieu of paying costs

as permitted by Rule 145 of the Texas Rules of Civil Procedure. Petitioners’ final divorce decrees

nevertheless allocated costs, providing either that “costs of Court are to be borne by the party who

incurred them” or that “Husband will pay for his court costs [and] the Wife will pay for her court

costs.” The decrees did not state the amount of costs due or that Petitioners were able to afford them.

Between May and August 2012, each of the Petitioners received collection notices from

Respondent, the District Clerk of Tarrant County, demanding from each, on average, about $300 in

court costs and fees. The notices threatened that the sheriff would seize property to satisfy the debt.

Petitioners were understandably upset and frightened by the notices. When the Texas Advocacy

Project protested on behalf of some of the Petitioners, the District Clerk responded that he was

bound by the decrees allocating costs to the party who incurred them. He encouraged any party

wishing not to pay costs to return to the family court that rendered the divorce decree to have costs

retaxed.

2
Petitioners are Odell Campbell, Shawnta Renea Coleman, Thomas Ray Robertson, Scott W iernik, Tairhonda
McAfee, and Marybeth Lynn Jewell.

2
 Petitioners sued for mandamus, injunctive, and declaratory relief in a civil district court that

had not rendered any of their divorce decrees. After an evidentiary hearing, the court found that the

District 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 expressly stated in the judgment or final
order that there was sufficient monetary award to reimburse costs[.]

The court temporarily enjoined the District Clerk from “continuing his policy of collection of court

costs from indigent parties who have filed an affidavit on indigency”.

The District Clerk appealed, contending that Section 65.023(b) of the Texas Civil Practice

and Remedies Code deprived the civil district court of jurisdiction, and alternatively, that injunctive

relief was improper because Petitioners have an adequate remedy at law. A divided court of appeals

vacated the injunction and dismissed the case for want of jurisdiction.3 We granted Petitioners’

petition for review.4

II

We first consider the applicability of Section 65.023(b) to this case.

3
430 S.W .3d 474 (Tex. App.— Fort W orth 2014).

4
58 Tex. Sup. Ct. J. 1203 (June 19, 2015). W e have jurisdiction over this interlocutory appeal because of the
dissent in the court of appeals. T EX . G OV ’T C O D E §§ 22.001(a)(1), 22.225(c).

3
 A

Section 65.023(b) 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.”5 This statutory provision dates to 1846.6

We interpreted the 1911 version7 in a 1923 case, Carey v. Looney.8 There, a district court in

McLennan County rendered a personal money judgment for Looney and awarded him an order of

sale to be executed on a piece of land in Milam County to satisfy the judgment.9 Carey, who was not

a party to the judgment and claimed to own the land, sued in a district court in Milam County for an

injunction prohibiting Looney and the sheriff from executing the order of sale and writ of possession,

and from disturbing her and her tenants’ lawful possession.10 The court dismissed the action for want

of jurisdiction on the ground that the statute required the action to be brought in the court in

McLennan County.11 We disagreed.

5
T EX . C IV . P RAC . & R EM . C O D E § 65.023(b).

6
Act approved May 13, 1846, 1st Leg., R.S., § 152, 1846 Tex. Gen. Laws 363, 406–407, reprinted in 2 H.P.N.
G AM M EL , T H E L AW S O F T EXAS 1822–1897, at 1669, 1711–1712 (Austin, Gammel Book Co. 1898) (“writs of injunction
. . . to stay . . . execution on a judgment[] shall be returnable to and tried in the district court of the county where . . . the
judgment was rendered”). The provision was previously codified as T EX . R EV . C IV . S TAT . art. 2880 (1879), T EX . R EV .
C IV . S TAT . art. 2996 (1895), T EX . R EV . C IV . S TAT . art. 4653 (1911), and T EX . R EV . C IV . S TAT . art. 4656 (1925).

7
T EX . R EV . C IV . S TAT . art. 4653 (1911) (“W rits of injunction granted to stay . . . execution on a judgment[] shall
be returnable to and tried in the court where . . . such judgment was rendered . . . .”).

8
251 S.W . 1040 (Tex. 1923).

9
Id. at 1040.

10
Id. at 1041.

11
Id.

4
 The purposes of the statute, we said, are “to protect the judgments and processes of one court

from interference by another by direct attack” and to “prevent[] a defeated party from proceeding

from one court to another, after his defeat, or in the hope of avoiding defeat, in an attempt to

relitigate the case.”12 The Milam County court’s exercise of jurisdiction offended neither. We then

described the statute’s applicability as follows:

The test of jurisdiction in such cases[13] is whether the relief sought may be granted
independently of the judgment or its mandate sought to be enjoined. If, 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, the
statue is mandatory and requires that the injunction suit be returnable to and tried in
the court rendering the judgment. On the other hand, if the court in which the
injunction suit is brought has general jurisdiction over the subject-matter, and the
relief may be granted, independently of the matters adjudicated in the suit whose
judgment or processes thereunder are sought to be restrained, the statute has no
application.14

The District Clerk here looks past the test set out in the first sentence and argues that the

applicability of what is now Section 65.023(b) depends on whether a case is in the category defined

by the second sentence in the quoted passage, to which the statute applies, or the category defined

by the third sentence, to which the statute does not apply. Because a bill of costs is a process issued

under a judgment, and each of the Petitioners was a party to his or her own divorce decree, the

District Clerk contends that Petitioners’ claims for injunctive relief fall in the former category.

12
Id. (quotation marks omitted).

13
Though Section 65.023 is captioned “Place for Trial”, T EX . C IV . P RAC . & R EM . C O D E § 65.023, suggesting
that it is a venue provision, in a former codification the statute was captioned “Jurisdiction for trial”, T EX . R EV . C IV .
S TAT . art. 4656 (1925), suggesting that the limitation is one on jurisdiction, and we referred to it as such in Carey. The
parties here treat the statute as jurisdictional, so we will assume it is, without deciding the matter.

14
Carey, 251 S.W . at 1041 (citations omitted).

5
 The District Clerk’s argument misreads Carey. Carey’s case fell outside the statute’s

applicability because the relief Carey sought was independent of the matters adjudicated by the

judgment in McLennan County. That court had not adjudicated Carey’s claims; she was not a party.

But the court did adjudicate whether the interests of the defendants before it should be sold; indeed,

the court issued an order of sale.15 Carey’s suit to stop the execution process issued to enforce

Looney’s judgment would have been governed by the statute but for the fact that she was not a party

to Looney’s case. If the statute merely prohibited a party to a judgment from asking another court

to enjoin its enforcement, it would have been much easier to draw the line there, having noted that

a purpose of the statute is to prevent a party from forum-shopping. But another purpose, we said, is

to prevent one court from directly attacking another’s judgment. “The test” is whether relief can be

granted independently of the judgment. What followed were merely examples.

We made clear later in the opinion that the applicability of what is now Section 65.023(b)

does not turn on whether the applicant for injunctive relief is a party to the judgment from which his

or her complaint arises.

Where specific property has been levied upon under a general execution, the levy and
sale may be enjoined in another court, even by a party to the suit. The ground of such
holding is that the injunction of a sale of specific property, on the claim that it is not
subject to the levy, is not a stay or interference with the processes of another court.
. . . On the other hand, where the judgment itself orders the sale of specific property,
such sale cannot be restrained by another court upon the application of a party to the
judgment.16

15
Id. at 1042.

16
Id. at 1041–1042.

6
The applicability of the statute depends on whether injunctive relief can be granted independently

of the judgment, not on whether the applicant for injunctive relief was a party to the judgment, or

on whether an injunction will disturb process issuing as a result of that judgment.

In other words, under Carey, the fact that the injunction may disturb process issuing as a

result of the judgment is but one example of when a court could be unable to grant relief

independently of the judgment. But that does not mean that an injunction that disturbs process can

never be granted independently of the judgment. Even if a plaintiff seeks an injunction that will

regulate the processes issued under a judgment, courts must still consider whether, under the specific

circumstances of each case, the injunction may nevertheless be issued independently of the

judgment.

The District Clerk’s misinterpretation of the statute finds some support in our 1982 per

curiam opinion in Evans v. Pringle.17 In that case, a criminal district court forfeited two bail bonds,

and the sureties paid the face amounts. But the district attorney claimed that post-judgment interest

was also due and obtained writs of execution to collect it.18 The sureties, who were not parties to the

criminal court judgment, asserted that forfeited bonds do not bear post-judgment interest and

obtained an injunction from a civil district court prohibiting the sheriff from seizing property to

enforce the writs.19 We found that Section 65.023(b) applied because “in order to grant the relief, it

17
643 S.W .2d 116 (Tex. 1982) (per curiam).

18
Id. at 117.

19
Id.

7
is necessary to regulate the processes issued under the judgment.”20 We did not discuss whether the

relief the sureties sought could be granted independently of the matters adjudicated in the criminal

case, but the effect of our decision is that it cannot be. We have not revisited the issue since then.

Now in retrospect, we cannot square Evans with a proper interpretation of Carey. If Carey was not

required to litigate the propriety of execution on land she claimed in the court that issued the

execution, we cannot see why the sureties in Evans should have been required to return to the court

that issued the processes giving rise to their objections to post-judgment interest. Carey correctly

interpreted what is now Section 65.023(b), and Evans did not. Evans must therefore be overruled.

B

Both parties agree that the District Clerk has a ministerial duty to bill costs as required by a

judgment. The District Clerk argues that Petitioners’ divorce decrees require them to pay costs. But

the decrees only allocate costs between the parties to each case, requiring each party to bear his or

her own costs—whatever they are. For a party who files an affidavit of inability to pay costs, there

are no costs to bill; under Rule 145 of the Texas Rules of Civil Procedure, the affidavit is “[i]n lieu

of paying or giving security for costs”.21 The Petitioners here all had uncontested affidavits; those

affidavits are “in lieu of” paying costs. There are no costs.22

20
Id. at 118.

21
T EX . R. C IV . P. 145(a).

22
The costs of course do not disappear. But from the perspective of the petitioner, the affidavit substitutes for
any costs.

8
 “An uncontested affidavit of inability to pay is conclusive as a matter of law.”23 The only

exception lies when “the party’s action results in monetary award, and the court finds sufficient

monetary award to reimburse costs”.24 Without a finding by the court, the affidavit wholly supplants

any costs.25

The District Clerk argues that because the Family Code provides courts with increased

latitude to award costs, it is conceivable that a family court could order costs despite an affidavit of

inability to pay.26 This argument flies in the face of our Constitution and case law. Rule 145 is but

one manifestation of the open courts guarantee that “every person . . . shall have remedy by due

course of law.”27 It is an abuse of discretion for any judge, including a family law judge, to order

costs in spite of an uncontested affidavit of indigence.28

23
Equitable Gen. Ins. Co. of Tex. v. Yates, 684 S.W .2d 669, 671 (Tex. 1984).

24
T EX . R. C IV . P. 145(d).

25
Rule 145 does not explicitly require the finding to be in writing. But considering our priority to keep the
courts open for indigent litigants, it is not unreasonable to expect a trial court to make a written finding that the affidavit
of indigency is overcome by the outcome of the action. Rule 145 does provide that if the court chooses to grant a
challenge to an affidavit of indigency it must do so in a written order. Id.

26
See T EX . F AM . C O DE §§ 6.708, 106.001.

27
T EX . C ON ST . art. I, § 13.

28
See In re Villanueva, 292 S.W .3d 236, 246 (Tex. App.—Texarkana 2009, orig. proceeding) (concluding that
family court abused its discretion when it ordered indigent divorce litigant to pay costs despite uncontested affidavit of
indigency).

9
 In any case, the family courts here did not order costs. The language in the judgment merely

lays out the division of any costs, not an amount to be charged.29 It is the ministerial duty of the

District Clerk to tabulate the costs and apply the affidavit of indigency.30

Petitioners complain that they were billed costs they did not incur. They challenge the District

Clerk’s actions and his policy; they do not challenge a word of the judgments in their cases. Section

65.023 therefore does not apply, and the district court had jurisdiction to enter the injunction.

III

Having established that the district court had jurisdiction over the petitions, we now turn to

the issue of whether a temporary injunction was proper.

A

First, the District Clerk argues that because Petitioners could have filed a motion to retax

costs, they have an adequate remedy at law.

Generally, the existence of an adequate remedy at law will bar equitable relief.31 However,

if an otherwise complete and adequate remedy at law will lead to a multiplicity of suits, “that very

29
See Wood v. Wood, 320 S.W .2d 807, 812–813 (Tex. 1959) (“The province of the court is to adjudge all the
costs, whatever they may be, against the losing party, or for good cause shown to adjudge otherwise. . . . The taxing of
costs is not an adjudication by the court of the correctness of the items taxed by the clerk. It is the ministerial act of the
clerk.”).

30
See id. at 813. The process in the District Clerk’s own office supports this view. At least one litigant received
a receipt from the District Clerk’s office that the total due— $308— had been “[r]eceived” and “[c]harged to PAUPER’S
AFFIDAVIT”.

31
Butnaru v. Ford Motor Co., 84 S.W .3d 198, 210 (Tex. 2002).

10
fact prevents it from being complete and adequate.”32 “[T]he unlawful acts of public officials” are

a prime candidate for injunctions “when [those acts] would cause irreparable injury or when such

remedy is necessary to prevent a multiplicity of suits.”33

A motion to retax costs confronts the correctness of the clerk’s ministerial calculations.34 It

is the proper method for correcting errors such as miscalculating the cost of an item35 or billing an

item that is not statutorily taxable.36 These are fact-specific errors made in individual cases that

require a similarly individual approach to redress.

Petitioners are not complaining of a one-off miscalculation or mistake, but of a systematic

policy that contravenes the law. It would be wasteful to force each individual Petitioner to file a

motion to retax costs when a single injunction will do.37

B

The District Clerk also argues that the injunction is overbroad. The district court enjoined

the District Clerk from “continuing his policy of collection of court costs from indigent

32
Repka v. Am. Nat. Ins. Co., 186 S.W .2d 977, 980 (Tex. 1945) (quoting Rogers v. Daniel Oil & Royalty Co.,
110 S.W .2d 891, 896 (Tex. 1937)).

33
Tex. State Bd. of Exam’rs in Optometry v. Carp, 343 S.W .2d 242, 245 (Tex. 1961).

34
Reaugh v. McCollum Expl. Co., 167 S.W .2d 727, 728 (Tex. 1943).

35
Id. at 727–728.

36
See Wright v. Pino, 163 S.W .3d 259, 261 (Tex. App.— Fort W orth 2005, no pet.) (determining that complaint
that taxed items were not authorized as costs is not an abuse of the court’s discretion but the ministerial duty of the clerk
and should be brought in a motion to retax costs).

37
W e have previously upheld an injunction enjoining a clerk from collecting statutory filing fees that we
determined were unconstitutional. See LeCroy v. Hanlon, 713 S.W .2d 335, 343 (Tex. 1986). W hether a motion to retax
would have been an adequate remedy in that case was not discussed, but likely it would not have been. As here, the error
by the clerk was not a one-off mistake but a policy (supported in that case by statute) that contradicted the law.

11
parties . . . unless [the court makes a specific finding in accordance with Rule 145(d)].” The District

Clerk is not just enjoined from billing costs to the named parties, but to all litigants who qualify as

indigent.

An injunction must be broad enough to “prevent repetition of the evil sought to be

stopped”38—here, the District Clerk’s “policy, practice, and procedure” of seeking costs against

indigent litigants, as found by the district court. When a policy or procedure is challenged as being

in conflict with state law, any injunction that issues will necessarily affect individuals beyond the

named parties. For example, we affirmed an injunction that restrained a state agency from

disciplining any employee who refused to take a polygraph test, despite the fact that only a few

individuals and the state union raised the constitutional challenge to the polygraph policy.39 We also

reversed the dissolution of an injunction preventing a fire department from implementing a

firefighter fitness assessment that conflicted with state law, even though only a few firefighters

brought the action.40

Similarly, the district court found that “because of the nature of this action, a final judgment

in this case will affect all persons who are in a position similar to these Petitioners.” The injunction

order tracks the language of Rule 145 and requires the District Clerk to conform his actions to the

law. It does not restrain the District Clerk from any lawful activity, and therefore is not overbroad.

38
San Antonio Bar Ass’n v. Guardian Abstract & Title Co., 291 S.W .2d 697, 702 (Tex. 1956).

39
Tex. State Emps. Union v. Tex. Dep’t. of Mental Health & Mental Retardation, 746 S.W .2d 203, 206 (Tex.
1987).

40
Tyra v. City of Houston, 822 S.W .2d 626, 628 (Tex. 1991). See also Dallas Cty. v. Sweitzer, 881 S.W .2d 757,
769 (Tex. App.— Dallas 1994, writ denied) (“A party suing for all persons adversely affected by enforcement of a statute
has standing to sue for an injunction.”).

12
 At oral argument, there was a brief discussion of whether mandamus might be a more

appropriate remedy than an injunction. “There is a well defined difference between injunction and

mandamus. One is preventive and the other remedial.”41 When the purpose of the suit is to compel

action, then mandamus is proper; conversely, when the purpose is to restrain action or threatened

action, then an injunction is proper.42 The two remedies can work in conjunction with each other.

For example, a court can issue mandamus to order a clerk to file a petition that the clerk wrongly

rejected, and concurrently issue an injunction barring the clerk from collecting an unconstitutional

filing fee.43 The mandamus compels the clerk to act; the injunction prevents the clerk from acting.

Here, the purpose of the suit was to prevent the District Clerk from billing costs to indigent

litigants. To the extent that the District Clerk has already billed costs and must now take some action

to rescind the bills, mandamus would be proper. But the true relief lies in enjoining the District Clerk

from continuing his policy of collecting these costs from these Petitioners or others similarly

situated.44 The temporary injunction is proper.

* * * * *

41
Boston v. Garrison, 256 S.W .2d 67, 70 (Tex. 1953).

42
Id.

43
LeCroy, 713 S.W .2d at 336–337.

44
Before the court of appeals, the District Clerk argued that Petitioners were attempting to receive class action
relief without certifying a class. This argument is not before us, but we note that Petitioners claimed they were amending
their pleading to seek class certification and that there is no requirement that a class be certified before obtaining a
temporary injunction. See T EX . R. C IV . P. 42(c)(1)(A) (requiring the court to determine certification “at an early
practicable time”).

13
 We reverse the judgment of the court of appeals and remand the case to the trial court for

further proceedings consistent with this opinion.

Nathan L. Hecht
Chief Justice

Opinion delivered: April 1, 2016

14