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.
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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.
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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:
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(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.
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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.
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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
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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
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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
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