Texas Department of Public Safety v. Anisty Mirasol

ACCEPTED

03-15-00300-CV

5379496

THIRD COURT OF APPEALS

AUSTIN, TEXAS

5/21/2015 1:24:54 PM

JEFFREY D. KYLE

CLERK

No. 03-15-00300-CV

FILED IN

IN THE COURT OF APPEALS 3rd COURT OF APPEALS

FOR THE THIRD JUDICIAL DISTRICT AUSTIN, TEXAS

5/21/2015 1:24:54 PM

AUSTIN, TEXAS

JEFFREY D. KYLE

Clerk

TEXAS DEPARTMENT OF PUBLIC SAFETY,

APPELLANT

V.

ANISTY MIRASOL,

APPELLEE

No. D-1-GN-14-001479

201ST Judicial District

Appealing the Interlocutory Order from the 345th Judicial District

Travis County, Texas

APPELLANT’S MOTION TO EXEMPT IT FROM PAYING FILING FEES

AND APPELLATE COSTS

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

NOW COMES Appellant Texas Department of Public Safety (“DPS”) and

files its Motion to Exempt it from Paying Filing Fees and Appellate Costs, including

electronic fees, and shows the court as follows:

I.

BACKGROUND

On May 14, 2015, Appellant DPS filed its Notice of Appeal of Interlocutory

Order with the Travis County District Clerk’s Office pursuant to TEX. R. APP. P.

1

25.1(a) (An appeal is perfected when a written notice of appeal is filed with the trial

court clerk.) The district clerk then sent a copy of the Notice of Appeal to the Court

of Appeals.

On May 15, 2015, Appellant received a letter from the Clerk of the Court of

Appeals advising that it was requesting payment of a “$195.00 filing fee.” See letter

on file with the court.

On May 19, 2015, the Travis County district clerk informed Appellant by

telephone that it agreed with Appellant that it was exempt from having to pay for the

Clerk’s Record. The Clerk’s Record would be sent to the Court of Appeals without

Appellant paying for the record. The Clerk’s Record contains a copy of the

Appellant’s Notice of Appeal.

On May 20, 2015, Appellant’s counsel conferred by telephone with Jeffrey

Kyle, the Clerk of the Court of Appeals, regarding the Clerk’s letter. The Clerk stated

that Appellant DPS is to efile another copy of its Notice of Appeal and pay the

$195.00 fee via the efiling. Appellant explained that it is not required to file the

Notice of Appeal with the Court of Appeals and that it properly filed it with the

district clerk’s office. Even if the Court of Appeals required a copy, the District Clerk

has already sent a copy to the Court of Appeals and another copy is contained in the

Clerk’s Record.

2

Appellant also explained the statutory exemption of government units, such

as DPS, from the payment of court fees pursuant to TEX. CIV. PRAC. & REM. CODE

§6.001 (West 2002). The Clerk advised that Appellant could file a motion for the

consideration of the Justices regarding this matter.

II.

ARGUMENTS

The Clerk of the Court of Appeals relies on TEX. R. APP. P. 5 as its authority

for requiring the payment of fees by a governmental unit such as Appellant DPS.

See Clerk’s letter. Rule 5 provides:

A party who is not excused by statute or these rules from paying costs

must pay—at the time an item is presented for filing—whatever fees

are required by statute or Supreme Court order. The appellate court may

enforce this rule by any order that is just.

TEX. R. APP. P. 5 (emphasis added). State governmental units such as DPS are

excused by statute from paying costs. It is TEX. CIV. PRAC. & REM. CODE § 6.001

(West 2002) and it provides in relevant part:

§ 6.001. State & Federal Agencies Exempt From Bond for Court Costs or

Appeal

(a) A governmental entity or officer listed in Subsection (b) may not be

required to file a bond for court costs incident to a suit filed by the entity or

officer or for an appeal or writ of error taken out by the entity or officer and

is not required to give a surety for the issuance of a bond to take out a writ of

attachment, writ of sequestration, distress warrant, or writ of garnishment in a

civil suit.

(b) The following are exempt from the bond requirements:

3

(1) this state;

(2) a department of this state;

TEX. CIV. PRAC. & REM. CODE § 6.001 (West 2002)(emphasis added).

Moreover, the statutes regulating the fees for electronic filing provide: “(a) To

the extent of any conflict between the provisions of this chapter and another state

statute, the other statute prevails.” TEX. GOV. CODE § 101.001(West

2013)(emphasis added). Therefore, as between the statutes governing filing fees and

the exemption of payment of fees for State governmental units, TEX. CIV. PRAC. &

REM. CODE § 6.001 must prevail.

Section 6.001 exempts the state from advance payment of filing fees and other

court costs for an appeal but does not exempt it from ultimately paying such costs

if costs are properly adjudged against it as a non-prevailing party and where no

statute exempts it from costs. Tex. Att’y Gen. Op. No. MW-447A (1982) and DM-

459 (1997)(emphasis added); see Rodeheaver v. Alridge, 601 S.W.2d 51, 54 (Tex.

App. Houston [1st Dist.] 1980, writ ref’d n.r.e.).

Fees are “security for costs” for example, to cover the “costs of the clerk’s

services for the initial filing of the action, but also many other services which will

accrue during the processing of the suit. Thus, the statutory fee is, in effect, an

advance payment for the cost of services which have not been rendered at the time

the fee is collected.” Rodeheaver, 601 S.W.2d at 54.

4

The Tex. Att’y Gen. Op. No. MW-447A (1982) and again in DM-459 (1997)

both concluded that “the state is not required to pay filing fees for the filing of a

case, pay fees for service of citation, or give any other security for costs, including

any appellate costs…although the state will ultimately be liable for costs should it

be the losing party.” Tex. Att’y Gen. Op. No. DM-459 (1997)(emphasis added) and

referring to TEX. CIV. PRAC. & REM. CODE § 6.001 (West 2002).

In Dallas County Bail Bond Board v. Mason, the court considered Section

6.001 as it applies to counties and held that the Board was exempt from filing an

appeal bond. Dallas County Bail Bond Board v. Mason, 773 S.W.2d 586, 587 (Tex.

App.—Dallas 1989, no pet.) relying on Dallas County Appraisal District v. Institute

for Aerobics Research, 751 S.W.2d 860 (Tex. 1988)(similar statute in Tex. Prop.

Code §42.28 exempts county and its agencies from filing appeal bonds). The

Supreme Court opined in Aerobics on the purpose of these types of exemption

statutes as follows:

No purpose would be served by requiring an appraisal district to file

appeal bonds. As a political subdivision, an appraisal district is funded

by tax dollars, and no doubt exists concerning its ability to pay any cost

that might legally be assessed against it....The undesirable state of

having public funds tied up in litigation militates against such a holding.

Dallas County Appraisal District v. Institute for Aerobics Research, 751 S.W.2d

860, 862 (Tex. 1988); see also In re Bill Long, 984 S.W.2d 623, 626-27 (Tex.

5

1999)(District Clerk not required to file supersedes bond pursuant to TEX. CIV. PRAC.

& REM. CODE § 6.001(b)(4)).

Similarly, no purpose is served by requiring the State of Texas or its

departments to pay a bond, such as electronic fees and court fees, with public funds

when there is no doubt that the State has the ability to pay any costs that might legally

be assessed against it if it does not prevail in the appeal.

For the above reasons, Appellant DPS moves this appeals court to exempt

Appellant, a governmental unit, from the payment of all filing fees and costs, if and

until, at the conclusion of the appeal such costs are properly assessed against DPS if

it is a non-prevailing party.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

JAMES E. DAVIS

Deputy Attorney General for Civil Litigation

KARA KENNEDY

Division Chief, Tort Litigation

/s/ Elsa Girón Nava

_______________________________

ELSA GIRÓN NAVA

Assistant Attorney General

State Bar No. 14826900

Tort Litigation Division, Mail Stop 030

6

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 463-2197 / (512) 457-4459, direct fax

Elsa.Nava@texasattorneygeneral.gov

ATTORNEY FOR APPELLANT DPS

CERTIFICATE OF CONFERENCE

This motion is not decided on whether Appellee’s counsel agrees that this

Court of Appeals cannot require the state to pay the court’s filing fees. This motion

was rejected when efiled because it lacked a certificate of conference.

Therefore, on May 21, 2015, I conferred with Appellee’s counsel regarding

this motion and he agrees with this motion.

/s/ Elsa Girón Nava

____________________________

ELSA GIRÓN NAVA

Assistant Attorney General

7

CERTIFICATE OF ELECTRONIC SERVICE

I certify that on May 21, 2015, at approximately 1:30 p.m., I served a copy of

this document on the party/parties below by electronic service concurrently with the

electronic filing of the document. The electronic transmission was reported as

complete. My e-mail address is Elsa.Nava@texasattorneygeneral.gov

Paul Batrice Via E-Service

Batrice Law Firm

1114 Lost Creek Blvd, Suite 440

Austin, TX 78746

(512) 600-1000

(512) 600-0217, fax

Paul@batricelawfirm.com

Attorney for Appellee

/s/ Elsa Girón Nava

____________________________________

ELSA GIRÓN NAVA

Assistant Attorney General

8