Tom Benson v. State ( 2015 )


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  •                                                                                            ACCEPTED
    03-15-00121-CV
    4393566
    THIRD COURT OF APPEALS
    AUSTIN, TEXAS
    3/6/2015 9:03:54 AM
    JEFFREY D. KYLE
    CLERK
    NO. 03-15-00121-CV
    IN THE COURT OF APPEALS                      FILED IN
    THIRD DISTRICT OF TEXAS               3rd COURT OF APPEALS
    AUSTIN, TEXAS
    AT AUSTIN, TEXAS                  3/6/2015 9:03:54 AM
    JEFFREY D. KYLE
    Clerk
    TOM BENSON
    Appellant,
    vs.
    THE STATE OF TEXAS,
    Appellee.
    APPELLANT'S MOTION TO DETERMINE PROPER DESIGNATION
    OF CASE AND APPROPRIATE APPELLATE FILING FEE
    TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
    Appellant, Tom Benson, asks this Comito determine the proper designation
    of this case and the appropriate appellate filing fee, if any.
    1.     Appellant is Tom Benson; appellee is The State of Texas.
    2.     No rule provides a deadline to file this motion for the relief requested.
    3.     Appellant timely filed a Notice of Appeal in this Court. Appellant also
    timely filed a supersedeas bond to suspend enforcement of the judgment entered by
    APPELLANT'S MOTION TO DETERMINE PROPER DESIGNATION
    OF CASE AND APPROPRIATE APPELLATE FILING FEE                                PAGE l OF 5
    the trial court on the State of Texas' Motion for Summary Judgment; requested the
    clerk's record.
    4.   The clerk of this court filed this case under the designation "CV" which
    is the designation given a civil case.
    5.   The clerk has erred in filing this case as a civil case with the designation
    "CV".
    6.   It is firmly settled law that a criminal bail bond forfoiture proceeding is
    a criminal case, not a civil case, with final appellate jurisdiction vested with the Court
    of Criminal Appeals. Safety National Casualty Corporation (Agent Michael W. Cox)
    v. State o.f Texas, 
    305 S.W.3d 586
    , 588 (Tex. Crim. App. 2010) ("Safety National 2").
    The First Court of Appeals was faced with this exact case designation
    issue in Safety National Casualty Corporation (Agent Michael W. Cox) v. State of
    Texas, 
    273 S.W.3d 730
    , 731-732 (Tex. App. - Houston [1" Dist.] 2008) (Safety
    National I"), reversed on other grounds, Safety National Casualty Corporation
    (Agent.Michael W. Cox) v. State o[Texas, 
    305 S.W.3d 586
    (Tex. Crim. App. 2010)
    ("Safety National 2") and determined that "CR" is the correct case designation.
    7.   Appellant requests the Court to amend the case designation in this case
    from "CV" to "CR".
    APPELLANf'S MOTION TO DETERMINE PROPER DESIGNATION
    OF CASE AND APPROPRIATE APPELLATE FILING FEE                                  PAGE2 OF5
    8.     The clerk by letter requested appellant to pay the $195.00 filing fee
    assessed on civil cases filed in this court by March 6, 2015 or this appeal will be
    dismissed. This demand has raised the issue of the proper filing fee due if any in this
    case and the proper case designation.
    9.     This fee issue is also settled by Safety National 2 and this Court's own
    fee schedule. The Court's fee schedule is published as Item No. 18 in the
    Practice       Before      the     Court       page     on     the     internet      at
    "http://www.txcourts.gov/3rdcoa/practice-before-the-court.aspx".
    10.    In Safety National 2 the Court of Criminal Appeals held stated that "[W]e
    conclude that the current version, Article 44.44, Texas Code of Criminal Procedure,
    also excludes the application of civil-case fees by the court of appeals in appeals from
    criminal bond-forfeiture proceedings." Safety National 2, 
    305 S.W.3d 586
    at 590.
    11.    None of the statutory authority cited in Safety National 1, Safety National
    2 or this Court's fee schedule have been amended, or amended in a way that alters the
    holding in Safety National 2 and it remains binding on this court These are: Texas
    Code of Criminal Procedure art. 44.42 and 44.44; Texas Government Code Sections
    51.005, 51.0051, 51.207, 51.208, 51.851, 51.852, 51.941 and 552.262; Rule 13.3(g)
    APPELLANT'S MOTION TO DETERMINE PROPER DESIGNATION
    OF CASE AND APPROPRIATE APPELLATE FILING FEE                                PAGE3 OF 5
    Rules of Judicial Administration; I Tex. Adm. Code 70.3 and Texas Supreme Court
    Misc. Docket No. 13-9127 dated August 16, 2013.
    12.    The Court is requested to direct the Clerk to only assess fees that are
    authorized for the filing of criminal cases, if any, against appellant and to reverse or
    refund any civil filing fee collected under protest.
    RELIEF REQUESTED
    Appellant requests the Court to direct the Clerk of this Court to amend the
    designation of this case from "CV" to "CR" and to also direct the Clerk to assess
    against appellant filing fees that are assessable upon the filing of a criminal case, if
    any and for such other relief to which appellant has shown itself entitled.
    Respectfully submitted,
    Isl Tom Benson
    ---------------
    Tom Benson, Prose
    900 Jackson Street, Suite 750
    Dallas, Texas 752202
    Texas Bar I.D. 02170500
    (214) 742-9898
    tomrbenson@gmail.com
    APPELLANT'S MOTION TO DETERMfNE PROPER DES!GNAT!ON
    OF CASE AND APPROPRIATE APPELLATE FILING FEE                                PAGE40F5
    Certificate of Conference
    I certify that on .March 5, 2015 after 5:00 P.M., I attempted to communicate with
    Tim    Labadie,     Assistant     Travis    County     Attorney      by   email     to:
    tim.labadie@traviscountytx.gov, but there has been insufficient time for him to
    respond to my communication before I had to file this motion to meet the clerk's
    deadline. I assume the State will oppose the relief requested.
    Isl Tom Benson
    Tom Benson
    CERTIFICATE OF SERVICE
    I certify that l have on this 5th day of January, 2015, after 5 :00 P.M., caused
    a true and correct copy of the foregoing Appellant's Motion to DETERMINE
    PROPER DESIGNATION OF CASE AND APPROPRIATE APPELLATE
    FILING FEE to be delivered to Tim Labadie, Assistant Travis County Attorney by
    email to: tim.labadie@traviscountytx.gov.
    Isl Tom Benson
    Tom Benson
    APPELLANT'S MOTION TO DETERMINE PROPER DESIGNATION
    OF CASE AND APPROPRIATE APPELLATE FILING FEE                               PAGE5 OPS
    

Document Info

Docket Number: 03-15-00121-CR

Filed Date: 3/6/2015

Precedential Status: Precedential

Modified Date: 9/29/2016