Sonia Olivarez, D/B/A Sonia Olivarez Bail Bonds v. State ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00317-CR

Sonia Olivarez, d/b/a

Sonia Olivarez Bail Bonds,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 18th District Court

Johnson County, Texas

Trial Court No. B200200040

Opinion

          Sonia Olivarez dba Sonia Olivarez Bail Bonds appeals from the denial of her motion for a special bill of review under article 22.17 of the Code of Criminal Procedure.[1] To date, Olivarez has failed to file a docketing statement.  See Tex. R. App. P. 32.

          The Clerk of this Court notified Olivarez by letter dated September 26, 2005 that no docketing statement had been received and warned her that the appeal was subject to dismissal if she did not file one within twenty-one days.  No response has been received to this notice.

          Rule of Appellate Procedure 42.3(c) provides for the involuntary dismissal of a civil appeal if the appellant has failed to comply with “a notice from the clerk requiring a response or other action within a specified time.”  The procedural rules for civil appeals apply to bond forfeiture appeals.  See Tex. Code Crim. Proc. Ann. art. 44.44 (Vernon 1979); McCluskey v. State, 64 S.W.3d 621, 623 (Tex. App.—Houston [1st Dist.] 2001, no pet.); see also Dees v. State, 865 S.W.2d 461, 462 (Tex. Crim. App. 1993) (procedural rules for civil trials apply to bond forfeiture proceedings in trial court).

          There are filing fees and other court costs normally associated with civil appeals which are not ordinarily imposed in an appeal from a criminal conviction.[2]  See Tex. Gov’t Code Ann. §§ 51.005, 51.207 (Vernon 2005); Tex. R. App. P. 5; Order Regarding Fees Charged in Civil Cases in the Supreme Court and the Courts of Appeals, Misc. Docket No. 98-9120 (Tex. Jul. 21, 1998).  In the past, this Court has not traditionally required the payment of filing fees or other court costs in a bond forfeiture appeal.  However, it appears that this practice is contrary to the law.

          In Dees, the Court of Criminal Appeals cited article 22.10 of the Code of Criminal Procedure in support of the proposition that “civil court costs may be assessed in a bail bond forfeiture proceeding.”  865 S.W.2d at 462 (citing Tex. Code Crim. Proc. Ann. art. 22.10 (Vernon Supp. 2005)).

          Following the holding of Dees, it appears that all costs traditionally associated with a civil appeal should be imposed in an appeal from a bond forfeiture proceeding.  Thus, we conclude that the $125 filing fee and the filing fees for pleadings should be assessed in such an appeal.  See Tex. Gov’t Code Ann. § 51.207; Tex. R. App. P. 5; Order Regarding Fees Charged in Civil Cases in the Supreme Court and the Courts of Appeals, Misc. Docket No. 98-9120.

          To date however, this Court has not required the payment of such fees.  Because we have not previously required the payment of such fees in bond forfeiture appeals, we will not do so in this appeal or in any bond forfeiture appeal currently pending in this Court.

          Absent a specific exemption, the Clerk of the Court must collect filing fees at the time a document is presented for filing.  Tex. R. App. P. 12.1(b); Order Regarding Fees Charged in Civil Cases in the Supreme Court and the Courts of Appeals, Misc. Docket No. 98-9120; see also Tex. R. App. P. 5; 10th Tex. App. (Waco) Loc. R. 6.  Under these circumstances, we suspend the rule and order the Clerk to write off all unpaid filing fees in this case.  Tex. R. App. P. 2.

          Olivarez has failed to comply with a notice from the Clerk of this Court requiring Olivarez to file a docketing statement within twenty-one days.  Accordingly, this appeal is dismissed.  See Tex. R. App. P. 42.3(c).

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissenting)

          (Justice Vance concurs with a note:  A docketing statement is for administrative purposes only and does not affect our jurisdiction.  Tex. R. App. P. 32.4.  Dismissal as a sanction is, in effect, a “death penalty,” which precludes consideration of the merits of the appellant’s claim.  Under the law developed to evaluate trial-court dismissals of civil proceedings as sanctions, such a sanction must be “just.”  TransAmerican Natural Gas v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) (orig. proceeding). That means a direct relationship must exist between the offensive conduct and the sanction imposed.  Id.  Furthermore, a permissible sanction should be no more severe than required to satisfy legitimate purposes.  Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992) (orig. proceeding). This means that a court must consider relatively less stringent sanctions first to determine whether lesser sanctions will fully promote compliance, deterrence, and discourage further abuse.  Id.   Our own precedent holds that “the Rules of Civil Procedure apply to forfeiture proceedings under article 18.18(b) of the Code of Criminal Procedure.”  F&H Investments Inc. v. State, 55 S.W.3d 663, 668, (Tex. App.—Waco 2001, no pet.).  The majority says we “notified Olivarez”; our letter shows we notified Olivarez’s attorney.  We have not tried to determine where the fault lies as between Olivarez or her lawyer, nor have we imposed a lesser sanction such as a fine. While we may conclude that the failure of the lawyer to file a docketing statement reflects adversely on the merits of the client’s appeal, we should be cautious in doing so.)

Appeal dismissed

Opinion delivered and filed December 21, 2005

Publish

[CR25]

---

[1]           Article 22.17 provides that the surety on an appearance bond may file a special bill of review within 2 years after that bond was forfeited.  Tex. Code Crim. Proc. Ann. art. 22.17 (Vernon 1989).  Presumably, a surety will do so only when the principal has been re-arrested.  See e.g. Grammercy Ins. Co. v. State, 834 S.W.2d 379, 380-81 (Tex. App.—San Antonio 1992, no pet.).

[2]           A non-indigent criminal appellant must pay costs for preparation of the appellate record.  See Tex. R. App. P. 20.2.