A dispute between rural Kinney County's county attorney and misdemeanor judge is raging on in San Antonio's Fourth Court of Appeals over the judge's alleged use of a pay-to-plea system that forces defendants to prepay court costs and fines before they can plead guilty.

The jurist at the center of the conflict, Kinney County Judge Tully Shahan, issued a sua sponte order that ended the system critics dubbed the “Shahan Shakedown.” But County Attorney Todd Durden, who claims Shahan is the mastermind behind the prepayment system, still wants the appellate court to intervene.

The fight reached the Fourth Court in early June when Durden asked for mandamus relief to end the system, which he claimed violates due process and contravenes a 2017 Texas law that says defendants owe court costs and fees only after they're convicted.

But Kinney County argues Shahan's June 18 order resolves the dispute. Its recent filings claimed Durden's mandamus action is moot and urged the Fourth Court to dismiss it.

The county filed a motion to dismiss June 19 that noted Shahan's findings and an order one day earlier, which applied to all misdemeanor cases in which defendants had deposited funds with the county clerk before their convictions. Its motion said Shahan ordered the release of the pre-paid funds to the defendant.

“Without supporting facts, [Durden] attributes the offending policy to Judge Shahan, whose sua sponte order expressly denies such responsibility,” the motion said, claiming that county prosecutors, and not the judge, had devised the so-called pay-to-plea system.

But in a July 8 response by the state, Durden wrote that court records show that Shahan was very involved in attempts to collect prepayments of costs and fines.

“The feigned ignorance of Judge Shahan is a gross misstatement or omission of an obviously important and material fact,” said the response, which asks the Fourth Court to sanction Kinney County and its outside counsel.

Among other things, Durden claimed that Shahan's order to end the pay-to-plea system is void because the judge issued it during a time that the Fourth Court ordered a stay in the dispute. Also, the state's response said Shahan's order isn't adequate to end pay-to-plea because it does not list any procedure to ensure that all defendants who prepaid costs and fines will receive refunds.

Durden said in an interview that Shahan's order created more problems than it solved.

“His procedures only call for the clerk to refund money, so if the clerk already transferred that to the treasurer, it's not on hand and the clerk can't refund it,” Durden said.

The state argues in its response that the Fourth Court should issue mandamus relief that orders the area's local administrative judge, 63rd District Judge Henry Fernandez—who's also a respondent to Durden's mandamus case—to create new local rules of court administration to end the system for good.

In a June 25 response, Fernandez, who didn't immediately return a call seeking comment, denied any involvement in the system.

One of the real parties in interest in the mandamus action is Maria Cervantez, a low-income Bracketville woman who faced a driving-while-intoxicated charge that Fernandez dismissed while sitting as a visiting judge in Shahan's court. When Cervantez filed a motion to request the refund of $897 she had prepaid in costs and fines, Fernandez ordered only $500 refunded.

Fernandez wrote in his response that he wouldn't oppose mandamus relief that ordered him to refund the rest of Cervantez's money.

Cervantez's June 28 reply asked the Fourth Court to grant Fernandez's request. Her lawyer, Ruben Nino, didn't immediately return a call seeking comment.

Robert T. “Bob” Bass, a partner in Allison, Bass & Magee in Austin who represents Shahan and Kinney County, said he feels the court has sufficient information to decide the matter.

Bass said, “We've stated our case on why we think his pleadings are without merit.”

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