Armed with a 2006 opinion by Texas Attorney General Greg Abbott, bail bondsmen are suing counties across the state, alleging that the counties wrongly charge them civil filing fees in bond forfeiture cases and asking courts to return their money.
“We’re talking potentially millions of dollars,” says Ken W. Good, attorney for the bondsmen and a shareholder in Tyler’s Kent, Good, Anderson & Bush. “It’s a dispute that’s been around for 30 years; bondsmen have been overpaying all that time.”
Bond forfeitures occur after a defendant fails to appear in court as required. The trial judge enters a judgment nisi against the defendant and his sureties on his bond.
Whether the bondsmen prevail in their suits could hinge, in part, on whether courts agree with Abbott’s opinion regarding the applicability of a filing-fee statute the Texas Legislature passed in 2005 in bail bond forfeiture cases.
In Opinion No. GA-0486, Abbott concluded that Local Government Code §133.154(a), which requires district and county clerks to collect a $37 fee “on the filing of any civil suit,” does not apply to bail bond forfeiture matters, because no civil suit is filed. The Legislature enacted the statute to help fund salary increases for judges.
According to Abbott’s opinion, the Texas Court of Criminal Appeals held in 1993′s Dees v. State that civil court costs may be assessed in a bail bond forfeiture proceeding, but the CCA has not said whether those costs include filing fees. Abbott also noted in the opinion that, although Texas Code of Criminal Procedure Article 22.14 provides that the state’s Rules of Civil Procedure govern all proceedings in the trial court after the court issues a judgment nisi, the CCA held in 1990′s State v. Sellers that a bond forfeiture is not “a civil case.”
However, the defendants in one suit brought by a bondsman — Knowles v. Smith, et al., filed Aug. 15 in Amarillo’s 320th District Court — argue in their Sept. 12 answer to the plaintiff’s petition that the attorney general “sidestepped” the CCA’s ruling in Dees.
“The judicial branch has definitely spoken on the question of whether civil court costs may be collected in bond forfeiture proceedings: they may,” defendants Potter County, County Clerk Julie Smith and District Clerk Caroline Woodburn contend in their answer to bondsman Kenneth Knowles’ original petition.
Potter County Attorney Scott Brumley, whose office is representing the defendants in Knowles, says, “Ultimately, what this case comes down to is the plaintiff and the attorney general mistakenly say the Court of Criminal Appeals didn’t mean what they said. If the Court of Criminal Appeals meant counties can assess court costs but can’t assess filing fees, they could have said so.”
But Good says, “Both the Texas Supreme Court and the Court of Criminal Appeals have held bond forfeiture cases are criminal cases that are within the jurisdiction of the Court of Criminal Appeals.”
According to Opinion No. GA-0486, the state Supreme Court ruled that bond forfeiture cases are criminal cases in 1894′s Jeter v. State, and the CCA issued a similar holding in 2006′s Ex Parte Burr.
When told about Potter County’s criticism of Opinion No. GA-0486, state Office of the Attorney General spokeswoman Lauri Saathoff says, “We haven’t replaced that opinion.” She declines comment on the bondsmen’s suit.
Good says bondsmen have filed about a dozen suits as class actions against counties since Aug. 8. The petitions in each of those suits are virtually identical, he says.
Knowles, owner of Central Bail Bonds, alleges in his petition in the Potter County suit that the defendants not only collect the §133.154(a) fee in bond forfeiture cases but also collect civil filing fees set out in a number of other statutes.
“The county clerk and the district clerk are charging court costs for civil cases in bond forfeitures. This is improper,” Knowles alleges in the petition.
Austin solo Roger Moore, who represents bondsmen but who is not involved in Knowles or any of the other suits in which bondsmen are seeking to recover alleged overpayments on fees, says the attorney general’s opinion that the §133.154(a) fee does not apply to bond forfeiture cases provides the legal basis for the suits.
“If the attorney general is correct on §133.154(a), it would be applicable to other fees,” Moore says. The language of other statutes that impose a fee for the filing of civil cases is virtually identical to the language in §133.154(a), he says.
As noted in Knowles’ petition, class members are asking the 320th District Court to issue a declaratory judgment that the fees collected on the filing of a civil case cannot be collected in a criminal bond forfeiture case. The class members also are seeking to recover all alleged overpayments of court costs collected from them. But Good says the recovery probably would be limited to the past two years.
In their answer, the Potter County defendants argue that the district court lacks jurisdiction to consider Knowles’ monetary damages claim for the return of overpayments, because he failed to meet the requirements of Local Government Code §89.004. That provision requires a person making a claim against a county or its officials in their official capacity to present the claim to the county commissioners court.
Under that provision, the person cannot file a suit unless the commissioners court fails to act on the claim within 60 days. The defendants allege in their answer that Knowles filed suit three days after submitting his notice of claim to the Potter County judge.
Good says Knowles’ suit asks for a declaratory judgment that the county and district clerks’ collection of civil filing fees is improper. “The court has jurisdiction over them to determine whether they’re wrong or not,” he says.
Moore says one of the suits filed by bondsmen probably will go to the CCA on appeal. That will put the issue of whether bond forfeiture cases are civil or criminal cases squarely before the CCA, he says.
Civil or Criminal?
However, another case involving an entirely different complaint raised by a bail bond surety could prompt the CCA to decide whether bond forfeiture cases are civil or criminal.
In April, Houston’s 1st Court of Appeals assessed the costs of an appeal against the state in Safety National Casualty Corp, Agent Michael Cox, v. State, a case of first impression involving a dispute over the calculation of interest under Code of Criminal Procedure Art. 22.13(a) when a bond is forfeited.
Both Good, who represents Safety National and Cox, and Kathleen Braddock, bond forfeiture division chief in the Harris County District Attorney’s Office, which represents the state, say they are filing petitions for discretionary review with the CCA.
On April 17, the 1st Court held in Safety National, Cox that the interest Safety National owed on a forfeited bond should be calculated for the period between the date the trial court issued the judgment nisi that triggered the forfeiture until the date the defendant was arrested and incarcerated in any jurisdiction in the United States. As noted in the 1st Court’s opinion, the state had argued that Safety National owed interest until the defendant was returned to Harris County.
Justice Sam Nuchia wrote the 1st Court’s opinion, in which Justices George Hanks and Laura Higley joined. The 1st Court panel denied Harris County’s motion for a rehearing Aug. 22.
Harris County had asserted in its April 23 motion for rehearing before the 1st Court that it believes the court’s reason for awarding costs against the state was Texas Rule of Appellate Procedure 43.4. That rule provides that in a civil case, the court of appeals judgment should award appellate costs to the prevailing party.
Braddock says bond forfeiture cases are a hybrid. “They’re not criminal cases, because nobody goes to the penitentiary; they’re certainly not civil cases. We’re kind of an odd zebra with spots,” she says.
Harris County also asserted in the rehearing motion its belief that the reason the 1st Court considered the appeal in Safety National a civil case was because Safety National captioned the case CV, the designation for a civil case, rather than CR, the designation for a criminal case.
Good says he captioned Safety National CV because the 1st Court files bond forfeiture cases as civil cases. “I filled out their [the 1st Court's] docket statement according to their requirements,” he says.
Karinne McCullough, the 1st Court’s clerk, did not return a telephone call seeking comment by presstime Sept. 18.
Chris Prine, clerk of the 14th Court of Appeals in Houston, says his court typically files appeals in bond forfeiture cases as criminal cases.
“If it’s going to the Court of Criminal Appeals, it would be a CR,” Prine says.
