Victor J. Burgess, D/B/A Eydie's Bail Bonds, and the Local Agent for Seneca Insurance Co., Inc. v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-239-CV
VICTOR J. BURGESS, D/B/A APPELLANT
EYDIE’S BAIL BONDS, AND
THE LOCAL AGENT FOR SENECA
INSURANCE CO., INC.
V.
THE STATE OF TEXAS APPELLEE
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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
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OPINION
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Appellant Victor J. Burgess, d/b/a Eydie’s Bail Bonds, and the Local Agent
for Seneca Insurance Co., Inc. (Burgess) appeals the trial court’s bond forfeiture
judgment. In three issues, Burgess contends that the trial court unlawfully
assessed a court cost for service of citation by certified mail as part of the
judgment. We affirm.
Background Facts
John G. Smith, who was charged with possessing a controlled substance,
failed to appear at a court hearing. Therefore, the trial court signed a judgment
nisi that forfeited his $5,000 bond, which Burgess had signed as surety.1
In June 2007, the Denton County District Clerk sent notice of the judgment nisi
to Smith by citation through first class mail at the address that he had provided
on the bond and sent notice of the judgment nisi to Burgess by citation through
certified mail.2
Burgess filed an answer to the forfeiture action, and then the State filed
a motion for summary judgment that included the State’s contention that
Burgess was required to pay court costs for the service of citation upon him.
The State asserted in part that the trial court did not have the “authority to
decide what costs are assessed and whether such costs are reasonable”
because such a decision “would require the proper parties to be before a court
1
… A judgment nisi alone “does not authorize recovery of a bond amount
by the State. A judgment nisi is a provisional judgment that is not final or
absolute, but may become final. Nisi means ‘unless,’ so a judgment nisi is valid
unless a party shows cause why it should be withdrawn.” Safety Nat’l Cas.
Corp. v. State, 273 S.W.3d 157, 163 (Tex. Crim. App. 2008) (citation
omitted).
2
… See Tex. Code Crim. Proc. Ann. arts. 22.03–.05 (Vernon 2009); Tex.
R. Civ. P. 106(a)(2).
2
having proper jurisdiction in an action regarding the appropriateness of civil
court costs, (some of) which are set by the Commissioners Court.” 3
Burgess’s response to the State’s summary judgment motion did not
contest Burgess’s general liability on the forfeiture of Smith’s bond; instead, the
response raised only the issue of whether the State was entitled to recover the
cost that was charged by the district clerk for service of citation by certified
mail. After the State filed a reply to Burgess’s response, the trial court signed
a final judgment in favor of the State that awarded, among other relief, all of
the court costs that the district clerk had assessed. According to a document
titled “CIVIL BILL OF COST,” the court costs amounted to $251 and specifically
included a $68 cost for citation by certified mail.4
3
… The State also contended, “It is the County and the District Clerk who
assesses and collects civil court costs—not the State. Any court action
regarding the reasonableness of court costs should include those parties.”
4
… The trial court’s June 18, 2009 final judgment does not expressly
refer to the parties’ summary judgment documents but implies that the court
granted the State’s summary judgment motion. See Kendziorski v. Saunders,
191 S.W.3d 395, 402 (Tex. App.—Austin 2006, no pet.) (“[T]he court’s final
judgment indicated that Saunders’s motion for summary judgment had been
granted.”). The trial court sent the parties’ counsel an e-mail on July 21, 2009
that said that the court was rescinding the final judgment so that it could be
replaced with an “Order Granting Summary Judgment.” The next day, the trial
court wrote by hand on another document contained in the clerk’s record that
it was rescinding the final judgment. The record does not contain an order
granting summary judgment or a substitute final judgment, and the trial court’s
attempts to rescind its judgment occurred after its plenary power to do so had
expired. See Tex. R. Civ. P. 329b(d); Wright v. Pino, 163 S.W.3d 259, 263
3
Burgess asked the trial court to enter findings of fact and conclusions of
law, but the court never did so. Burgess filed a notice of appeal, stating that
he is appealing as “Victor J. Burgess, d/b/a Eydie’s Bail Bonds, and the Local
Agent for Seneca Insurance Co., Inc.”
Standing
Before the submission of this appeal, the State filed a motion to dismiss
the appeal for lack of jurisdiction. Based on the contents of the motion to
dismiss and on the State’s oral argument, we broadly construe the motion as
challenging Burgess’s standing to bring the appeal because he (1) is allegedly
not the surety on the bond and is therefore not liable to pay the trial court’s
judgment and (2) does not have authority to bring an appeal as an agent of
Seneca Insurance Co., Inc., which is allegedly the real surety on the bond.
The issue of a party’s standing may be raised for the first time on appeal.
City of Arlington v. Centerfolds, Inc., 232 S.W.3d 238, 244 (Tex. App.—Fort
Worth 2007, pet. denied). In order to maintain a suit, a plaintiff must have a
justiciable interest in the subject matter of the litigation. Id. A party’s standing
to maintain a suit, which is a component of subject matter jurisdiction, may be
satisfied when the party has a personal stake in the outcome of the suit and the
(Tex. App.—Fort Worth 2005, no pet.).
4
party has suffered a concrete and particularized injury. Brown v. Todd, 53
S.W.3d 297, 305 (Tex. 2001) (citing Raines v. Byrd, 521 U.S. 811, 819, 117
S. Ct. 2312, 2317 (1997)); see City of Fort Worth v. D.T., 165 S.W.3d 425,
427 (Tex. App.—Fort Worth 2005, no pet.) (explaining that to establish
standing, “one must show a justiciable interest by alleging actual or imminent
threat of injury peculiar to one’s circumstances and not suffered by the public
generally”).
An affidavit that Burgess filed on appeal explains,
[W]hen I commenced my business relationship with Seneca, I
entered into a written, contractual indemnity agreement with
Seneca. Specifically, under that indemnity agreement . . .[,]
wherein I am expressly identified as “Agent/Indemnitor,” when
there is a bail bond forfeiture arising from a bond that I have
executed as “agent” of Seneca, I am required to indemnify Seneca
for any financial loss to [Seneca] arising out of such forfeiture.
Under this agreement, my failure to pay Seneca the amount of any
financial loss to [Seneca], arising out of a bail bond forfeiture for
which I am responsible while doing business as Eydie’s Bail Bonds,
would result not only in my losing the support of Seneca as my
collateral security, but would also result in the loss of my license
to write bail bonds in Denton County, Texas.[ 5 ]
5
… We may consider documents submitted by the parties that are outside
of the trial court’s record for the purpose of determining our own civil
jurisdiction. See Tex. Gov’t Code Ann. § 22.220(c) (Vernon Supp. 2009);
Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex.
1979); Kaufman v. Islamic Soc’y of Arlington, 291 S.W.3d 130, 139 n.20
(Tex. App.—Fort Worth 2009, pet. denied). We will not consider the evidence
that has been submitted by Burgess on appeal for any purpose other than
determining our jurisdiction and resolving the State’s motion to dismiss.
5
Additionally, the particular wording of the judgment that the trial court signed
in this case designates “VICTOR J. BURGESS, AGENT D/B/A EYDIE’S BAIL
BONDS” as being responsible to pay the judgment. We conclude that these
documents, which establish (1) Burgess’s general liability to pay bond forfeiture
judgments against Seneca Insurance Co., Inc. when he has executed bonds as
Seneca Insurance Co., Inc.’s agent and (2) his specific liability to pay the
judgment in this case, comprise evidence that Burgess has a particularized,
personal stake in the outcome of this appeal and therefore has standing on that
basis. See Brown, 53 S.W.3d at 305; see also Torrington Co. v. Stutzman, 46
S.W.3d 829, 844 (Tex. 2000) (“Torrington has a clear justiciable interest in
appealing the judgment against Textron, which it would have to pay.”).
As to the State’s argument that Burgess does not have authority to
pursue an appeal on behalf of Seneca Insurance Co., Inc., the record contains
a document titled “POWER OF ATTORNEY” that relates specifically to the
execution of Smith’s bond, names Burgess as an “Executing Agent,” and
states,
Seneca Insurance Company, Inc. . . . has constituted and appointed
. . . the named Executing Agent its true and lawful Attorney-In-
Fact, with full power and authority to sign the company’s name
and affix its corporate seal to . . . any and all obligations as herein
provided, and the execution of such obligations in pursuance of
these presents shall be as binding upon the company as fully and
to all intents and purposes as if done by the regularly elected
6
officers of said company . . . ; and the said company hereby ratifies
and confirms all and whatsoever its said attorney-in-fact may
lawfully do and perform in the premises by virtue of these presents.
Another document, titled “QUALIFYING POWER OF ATTORNEY,” contains
similar language generally related to Burgess’s relationship with Seneca
Insurance Co., Inc. 6
The State argues, “Nowhere in these documents does [Seneca Insurance
Co., Inc.] give to [Burgess] the authority to defend or appeal a bond forfeiture
action.” However, Burgess’s affidavit that he filed in this court states that he
is ”authorized, in [his] capacity as agent for Seneca, to retain local counsel to
litigate and, if necessary, to prosecute appeals for Seneca arising out of
forfeiture actions concerning bail bonds executed by [him] d/b/a Eydie’s Bail
Bonds.” [Emphasis added.] Burgess also presented this court with a letter from
Seneca Insurance Co., Inc.’s chief operating officer to him that states,
“Consider this letter as verification that you are authorized to employ the
attorney of your choice to represent you as a Bail Agent for Seneca Insurance
Company, Inc. in regards [sic] to outstanding forfeitures . . . .” We conclude
that the evidence submitted by Burgess defeats the State’s argument that
6
… For instance, the qualifying power of attorney says that Burgess may
affix the seal of Seneca Insurance Co., Inc. on “all documents necessary or
incidental to the execution of bail bonds.”
7
Burgess does not have the authority to appeal as the agent for Seneca
Insurance Co., Inc.
For these reasons, we conclude that Burgess has standing to maintain
this appeal, and we deny the State’s motion to dismiss.
Summary Judgment Standard of Review
We review a summary judgment de novo. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We consider the
evidence presented in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant if reasonable jurors could, and
disregarding evidence contrary to the nonmovant unless reasonable jurors could
not. Id. We indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).
A plaintiff is entitled to summary judgment on a cause of action if it
conclusively proves all essential elements of the claim. See Tex. R. Civ. P.
166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986).
The Authorization of the Cost For Service of Citation by Certified Mail
In his first issue, Burgess argues that the $68 cost assessed by the
district clerk is unlawful because the Denton County Commissioners Court has
not authorized that cost. The government code provides that a district clerk
“shall collect” a fee for “serving process by certified or registered mail.”
8
Tex. Gov’t Code Ann. § 51.319(2) (Vernon 2005). The code explains that the
fee to be collected by the district clerk for serving process by certified mail is
“the same fee that sheriffs and constables are authorized to charge for the
service under Section 118.131, Local Government Code.” Id. (emphasis
added).
Section 118.131 states in part,
(a) The commissioners court of a county may set reasonable
fees to be charged for services by the offices of the sheriff and
constables.
(b) The commissioners court may not set fees higher than is
necessary to pay the expenses of providing the services.
....
(d) The commissioners court must set the fees before
October 1 of each year to be effective January 1 of the following
year.
Tex. Loc. Gov’t Code Ann. § 118.131 (Vernon 2008); see Camacho v.
Samaniego, 831 S.W.2d 804, 812 (Tex. 1992).
Burgess attached evidence to his summary judgment response that
establishes that the Denton County Commissioners Court has set a $60
sheriff/constable fee for “Citation” and has set a fee in the same amount for
“Citation by Publication,” “Citation by Posting,” “Citation by Scire Facias,” and
9
“Citation—Forcible Detainer.” 7 Burgess essentially contends that because the
commissioners court has not specifically set a fee for “Citation by Certified
Mail” as it did for other types of citation, the district clerk is not authorized to
charge such a fee under the statutes above.
However, the rules of civil procedure specifically describe certified mailing
as one of the two main methods of service of “citation,” and the commissioners
court authorized a $60 fee for service of “citation.” See Tex. R. Civ. P.
106(a)(2); Taylor v. State, 293 S.W.3d 913, 915–16 & n.1 (Tex. App.—Austin
2009, no pet.). Although Burgess contended during oral argument that the
word “citation” in the commissioners court’s schedule of sheriff/constable fees
refers only to service by personal delivery rather than by certified mail, nothing
in the schedule of fees or in the remainder of the record indicates that the
commissioners court intended to limit the meaning of the word “citation” in that
way, and the rules of civil procedure and Texas courts signal that Texas sheriffs
and constables may serve citation by certified mail, not only by personal
7
… Although Burgess’s exhibit shows that the commissioners court set
these fees in September 2007, which was after citation was served upon
Burgess, Burgess has not argued at trial or on appeal that the fees in effect
when he was served with citation were different than the fees authorized by
the commissioners court in September 2007. We may not reverse the trial
court’s judgment on unassigned error. Pat Baker Co., Inc. v. Wilson, 971
S.W.2d 447, 450 (Tex. 1998).
10
delivery. See Tex. R. Civ. P. 107 (stating that an “officer or authorized person”
may serve citation by certified mail); P & H Transp., Inc. v. Robinson, 930
S.W.2d 857, 859 (Tex. App.—Houston [1st Dist.] 1996, writ denied); see also
Fellows v. Adams, No. 01-06-00924-CV, 2007 WL 3038090, at *2 (Tex.
App.—Houston [1st Dist.] Oct. 18, 2007, no pet.) (mem. op.) (holding that
service of process through certified mail by a deputy constable was sufficient
to support a default judgment). Therefore, we hold that the commissioners
court’s authorization of a $60 fee for service of an unspecified manner of
“citation” authorizes the charging of that fee when the citation is served by
certified mail, and we overrule Burgess’s first issue to that extent.
As another part of his first issue, Burgess notes that while the
commissioners court approved a $60 fee for “citation,” the district clerk
charged $68 in this case for “CITATION BY CERTIFIED MAIL.” In its motion
for summary judgment, the State generally asserted that Burgess was liable for
all applicable civil court costs and then specifically relied on the commissioners
court’s order under section 118.131 to establish the district clerk’s ability to
collect $60, not $68; thus, Burgess’s statement in his summary judgment
response that the State relied on section 118.131 to authorize the district clerk
to recover a $68 cost is incorrect. Furthermore, section 51.317(b)(3) of the
government code instructs a district clerk to collect an $8 fee for the district
11
clerk’s “issuing” (as opposed to “serving”) a citation,8 and this justifies the
collection of the additional $8 fee. See Tex. Gov’t Code Ann. § 51.317(b)(3)
(Vernon Supp. 2009). The district clerk “issued” two citations in this case
(one for Burgess and one for Smith), and along with the $68 “CITATION BY
CERTIFIED MAIL” fee in the clerk’s bill of costs, the bill also contains a separate
$8 “CITATION” fee. Although we agree with Burgess’s statement during oral
argument that nothing in the record directly shows that section 51.317(b)(3)
is the specific reason that either of the two $8 fees were charged, Burgess
does not dispute that these fees are authorized to be charged under that
statute. Thus, we hold that the trial court’s inclusion of the two $8 fees did
not cause the rendition of an improper overall calculation of $251 for costs of
suit in the trial court’s judgment. See Tex. R. App. P. 44.1(a)(1); Farlow v.
Harris Methodist Fort Worth Hosp., 284 S.W .3d 903, 928 (Tex. App.—Fort
Worth 2009, pet. denied). Therefore, we also overrule the remaining portion
of Burgess’s first issue.
8
… Issuance and service of citation are separate acts. The clerk of the
court is responsible to issue a citation; the party requesting the citation is
responsible to ensure that the citation is properly served. Tex. R. Civ. P. 99(a).
12
The Reasonableness of the Cost for Service of Citation by Certified Mail
In his second and third issues, Burgess contends that even if the Denton
County Commissioners Court authorized the cost for service of citation by
certified mail, the cost is nonetheless unlawful under section 118.131 of the
local government code because it is not reasonable and is higher than necessary
to pay the expense of the service. See Tex. Loc. Gov’t Code Ann.
§ 118.131(a)–(b). Burgess relies on other statutes relating to serving
documents by certified mail and on the postage expense of certified mail in
2007.9 See Tex. Civ. Prac. & Rem. Code Ann. § 12.005(b)(2) (Vernon 2002)
(establishing the fee for notice of an action involving presentation or use of
fraudulent documents at “the cost of postage if the service is by registered or
certified mail”); Tex. Code Crim. Proc. Ann. art. 102.006(a)(2)–(3) (Vernon
Supp. 2009) (establishing the fee for serving notices by certified mail in
expunction proceedings at the cost of postage plus $1 or $2). The State
asserts, among other contentions, that this bond forfeiture action is not the
9
… We note that the record does not contain any evidence of how or why
the commissioners court arrived at the $60 figure for service of “citation,” nor
does it contain evidence regarding the specific administrative procedures and
duties of Denton County employees when they serve citation by certified or
registered mail.
13
proper suit to attack the validity of a fee that was authorized by the
commissioners court.
For us to agree with Burgess’s contentions in his second and third issues
and hold that the trial court erred by entering judgment in favor of the State
that includes the cost for service of citation by certified mail, we would be
required to invalidate the Denton County Commissioners Court’s schedule of
sheriff/constable fees, at least as it applies to that method of service.
See Harris County v. Proler, 29 S.W.3d 646, 649 (Tex. App.—Houston [14th
Dist.] 2000, no pet.) (noting that the setting of fees under section 118.131 is
the sole responsibility of the commissioners court). We would have to do so
in a case that was not filed for the purpose of attacking the commissioners
court’s order (as the case was filed by the State for the forfeiture of Smith’s
bond) and in which none of Denton County, the commissioners court, any of
the commissioners court’s members, nor the district clerk (who collects the fee
at issue) have been made parties to the suit.
District courts have appellate jurisdiction and general supervisory
jurisdiction over the orders of commissioners courts. See Tex. Const. art. V,
§ 8; Wichita County v. Bonnin, 268 S.W.3d 811, 815 (Tex. App.—Fort Worth
2008, pet. denied) (op. on reh’g); Hooten v. Enriquez, 863 S.W.2d 522, 528
(Tex. App.—El Paso 1993, no writ). The legislature has not established the
14
general manner by which such supervisory jurisdiction may be used. Wichita
County, 268 S.W.3d at 815. However, courts, including our own court, have
consistently held that unless a commissioners court’s order is wholly void, it
may not be challenged through a collateral attack.10
In Luck v. Welch, the appellant contended that a Tarrant County
Commissioners Court’s order in 1931 that established a public access road
across the appellant’s land was invalid because certain statutory procedures
had not been followed. 243 S.W.2d 589, 591 (Tex. Civ. App.—Fort Worth
1951, writ ref’d n.r.e). We overruled the appellant’s argument, explaining in
part,
All of the cases cited by appellant in support of the foregoing
points were those in which direct attacks were made on the
judgment of the Commissioners’ Court. . . . ‘The power of the
District Court to supervise the proceedings of the Commissioners’
Court here involved gave the injunction suit the character of a
direct attack upon those proceedings rather than a collateral one.
* * * Th[is] permitted a full inquiry for the purpose of seeing
whether throughout the proceedings the Court had complied with
the law, unhindered by any presumptions ordinarily indulged in a
collateral attack upon a judgment of a court of general jurisdiction.’
The appellant is here making a collateral attack upon the 1931
10
… A collateral attack is an “attempt to avoid the effect of a judgment
in a proceeding brought for some other purpose. A direct attack on a judgment,
conversely, is an attempt to change that judgment in a proceeding brought for
that specific purpose, such as an appeal or a bill of review.” Kortebein v. Am.
Mut. Life Ins. Co., 49 S.W.3d 79, 88 (Tex. App.—Austin 2001, pet. denied)
(citation omitted), cert. denied, 534 U.S. 1128 (2002).
15
judgment [of the commissioners court] twenty years after its
rendition and this may not be done.
Id. (emphasis added) (citations omitted) (quoting Haverbekken v. Hale, 109 Tex.
106, 114, 204 S.W. 1162, 1165 (1918)).
Five years later, in reviewing a challenge made by a private citizen against
the Nueces County Commissioners Court to an order of the commissioners
court that authorized payment of $600 to an assistant district attorney, the
Texas Supreme Court stated,
An order of the Commissioners Court acting judicially on a matter
within its discretion is the judgment of a court of record which is
not subject to collateral attack and which may be reviewed only on
appeal or in a direct action for that purpose. And a suit to enjoin
the enforcement of the judgment of a court other than the one in
which the action is brought is generally regarded as a collateral
attack on the judgment. . . .
....
It is well settled that a direct equitable proceeding in district
court, the purpose and effect of which is to review or set aside an
order of the Commissioners Court, comes within the power granted
by the constitutional and statutory provisions above referred to,
and has the effect of a direct attack upon the order, at least where
the Legislature has not prescribed the procedure for appealing from
such order. The present suit invokes the equity powers of the
district court to prevent by injunction the payment of county funds
for a purpose alleged to be illegal. It is our opinion that the same
should be treated as a direct, rather than a collateral, attack upon
the order of the Commissioners Court authorizing such payment to
be made.
16
Scott v. Graham, 156 Tex. 97, 102–03, 292 S.W.2d 324, 327–28 (1956)
(citations omitted). A year later, the supreme court reiterated that an order
adopted by a commissioners court is generally considered immune from
collateral attack unless it is “wholly void” and an “absolute nullity” and that
“every departure from a prescribed method does not render such [an order] void
so as to subject [it] to collateral attack.” Henn v. City of Amarillo, 157 Tex.
129, 133–35, 301 S.W.2d 71, 74–75 (1957);11 see also Mobil Oil Corp. v.
Matagorda County Drainage Dist. No. 3, 597 S.W.2d 910, 911–12 (Tex. 1980)
(approving a challenge to an annexation order because suit was filed against the
11
… Before the Henn decision, the supreme court indicated that acts of
a commissioners court could be challenged through a collateral attack if they
comprised a “gross abuse of discretion.” Harrison v. Jay, 153 Tex. 460, 464,
271 S.W.2d 388, 390 (1954) (quoting Yoakum County v. Gaines County, 139
Tex. 442, 448, 163 S.W.2d 393, 396 (1942)). But the Henn opinion used the
void/voidable distinction to establish whether a commissioners court’s order is
subject to collateral attack. Henn, 157 Tex. at 131,133–36, 301 S.W.2d at
72–76. The supreme court has more recently implied that a commissioners
court’s order that is arbitrary, capricious, or unsupported by substantial
evidence is voidable and that whether the commissioners court abused its
discretion is the relevant standard in a direct attack on the commissioners
court’s order. See Ector County v. Stringer, 843 S.W.2d 477, 479 n.2 (Tex.
1992); Pritchard & Abbott v. McKenna, 162 Tex. 617, 627, 350 S.W.2d 333,
339–40 (1961); see also In re Masonite Corp., 997 S.W.2d 194, 198 (Tex.
1999) (orig. proceeding) (“That the trial court’s venue transfer orders were a
clear abuse of discretion does not mean that they were ‘void.’”). We have not
found any case decided after Henn in which the supreme court repeated its pre-
Henn language that an abuse of discretion makes a commissioners court’s order
reviewable through a collateral attack.
17
Matagorda County Commissioners Court as a direct challenge to the
commissioners court’s exceeding its authority); In re El Paso County Comm’rs
Court, 281 S.W.3d 16, 24 (Tex. App.—El Paso 2005, orig. proceeding) (stating
that it has “long been the law in Texas that a direct equitable action must be
filed in the district court in order to invoke that court’s jurisdiction to exercise
supervisory control of the commissioners court”); Tarrant County v. Denton
County, 87 S.W.3d 159, 174 (Tex. App.—Fort Worth 2002, pet. denied)
(explaining that commissioners courts’ orders may be collaterally attacked only
when they are void), overruled on other grounds by Martin v. Amerman, 133
S.W.3d 262, 268 (Tex. 2004); City of Katy v. Waterbury, 581 S.W.2d 757,
760 (Tex. Civ. App.—Houston [14th Dist.] 1979, no writ); Atl. Richfield Co. v.
Liberty-Danville Fresh Water Supply Dist. No. One of Gregg County, 506
S.W.2d 931, 934 (Tex. Civ. App.—1974, writ ref’d n.r.e.) (“[T]he District
Court is authorized to exercise supervisory control over the Commissioners’
Court through its equitable powers in a plenary suit brought for the purpose of
reviewing or setting aside an order of such court.”).
Courts have noted that a commissioners court’s order may be void when
it is unconstitutional, the commissioners court does not have jurisdiction over
the subject matter of the order, or a condition precedent to the order has not
occurred. See Chenault v. Bexar County, 782 S.W.2d 206, 209 (Tex. 1989);
18
La.-Pac. Corp. v. Newton County, 149 S.W.3d 262, 265 (Tex. App.—Eastland
2004, no pet.); Crider v. Cox, 960 S.W.2d 703, 706 (Tex. App.—Tyler 1997,
writ denied). Burgess’s claim in his second and third issues rests on his
contention that the Denton County Commissioners Court misapplied the
authority granted to it by section 118.131; Burgess does not assert that the
commissioners court did not have jurisdiction to set sheriff/constable fees, that
there was an unperformed condition precedent, or that the commissioners
court’s setting the “citation” service fee at $60 is unconstitutional.
Thus, under the authority above, we hold that Burgess’s challenge to the
commissioners court’s order is not an assertion that the order is void, and, as
the State asserts, the challenge may not be made in this collateral bond
forfeiture proceeding but must instead be raised in a separate action.
See Bowles v. Clipp, 920 S.W.2d 752, 754–55 (Tex. App.—Dallas 1996, writ
denied) (concerning claims in which individuals who had paid improper criminal
bond fees in Dallas County sued Dallas County and the sheriff). Therefore, we
overrule Burgess’s second and third issues.
19
Conclusion
Having overruled all of Burgess’s issues, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.
DELIVERED: May 13, 2010
20