Bret Alan Avery v. State

NO. 07-09-0262-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JANUARY 7, 2010

______________________________

BRET ALAN AVERY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

NO. 19996-C; HONORABLE ANA ESTEVEZ, JUDGE

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

ON ABATEMENT AND REMAND

            Appellant, Bret Alan Avery, appeals from his conviction for possession of a controlled substance in a drug-free zone and sentence, pronounced on July 23, 2009, of 17 years incarceration in the Texas Department of Criminal Justice, Institutional Division.  Appellant filed notice of appeal on August 3, 2009. 

            The clerk’s record was filed on September 24, 2009.  The reporter’s record was due on October 26, 2009.  The reporter neither filed the record nor requested an extension of time to file the record by that date.  On November 13, 2009, the reporter requested an extension of time to file the record and indicated that the record was being edited at that time.  The Court granted this extension request, making the reporter’s record due on December 7, 2009.  On December 8, 2009, the reporter again filed a request for extension of time to file the record indicating that she was having a difficult time editing the record “due to the sound I am proofing with as well as the way the attorneys presented their cases.”  The Court granted this extension request, making the reporter’s record due on December 28, 2009.  On December 29, 2009, the reporter filed a third request for extension of time to file the record indicating only that “I am completing this record.  Please give me 30 more days.”  According to the reporter’s monthly report, this record is “being proofread.”  There is no explanation provided as to why the reporter needs 30 days to proofread the record in this case.  As such, we deny the reporter’s third request for extension of time to file the reporter’s record as not being supported by good cause.

            Accordingly, we abate this appeal and remand the cause to the trial court for further proceedings.  See Tex. R. App. P. 35.3(c).  Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine whether the reporter’s caseload is such that an alternate or substitute reporter should or can be appointed to complete the record in this appeal in a timely manner.  If so, the trial court is directed to take whatever steps are necessary to ensure that the reporter’s record in this appeal is filed as soon as practicable.

            The trial court shall cause the hearing to be transcribed.  In addition, the trial court shall (1) execute findings of fact and conclusions of law addressing the foregoing issues, (2) cause a supplemental clerk’s record to be developed containing its findings of fact and conclusions of law and any orders it may issue relating to this matter, and (3) cause a reporter’s record to be developed transcribing the evidence and arguments presented at the aforementioned hearing, if any.  The trial court shall then file the supplemental clerk’s record and any reporter’s record transcribing the hearing with the Clerk of this Court on or before February 8, 2010.  Should further time be needed by the trial court to perform these tasks, same must be requested before February 8, 2010.

            It is so ordered.

                                                                        Per Curiam

Do not publish. 

ssibility. Given the nature of the car rental business, as recognized by the ordinance's presumption that 90% of the business of an off-airport car rental company's business is airport-generated, the decision to obtain business from the City's airport cannot be considered a voluntary choice.

In Conlen Grain and Mercantile, Inc. v. Texas Grain Sorghum Producers Board, 519 S.W.2d at 620, the Grain Sorghum Producers Board, a state agency, imposed an assessment on grain sorghum to be collected by the grain sorghum processors. The Texas Supreme Court found the assessment to be a tax despite provisions allowing the producer to recover the assessment paid. Id. at 623. The statute authorizing the assessment by the Board ⁽⁸⁾ only provided for collection by "processors." ⁽⁹⁾ Because the definition of processors was limited to "persons within this state," ⁽¹⁰⁾ the statute did not prevent producers from avoiding the assessment by selling grain sorghum to processors in other states. Even so, this possibility did not prevent the supreme court from finding that the assessment was an "enforced contribution of money" rather than a voluntary payment. Id. at 623. The fee in question here is no more voluntary than was the assessment imposed in Conlen.

In challenging Currey's argument, the City relies on cases discussing privilege fees imposed to offset the cost of providing a benefit to the user, as well as cases discussing user fees imposed for the purpose of regulation or as an economic disincentive. The City cites Rainey v. Malone, 141 S.W.2d 713 (Tex.Civ.App.--Austin 1940, no writ), in support of its position that the user fee imposed by the ordinance is justified by the benefits Currey receives "in a manner not shared by the general public." In Rainey, a student of the University of Texas challenged a $1 student union fee imposed on all students by the university. Id. at 714. According to the enabling statute, use of the revenue generated by this fee was:

for the sole purpose of operating, maintaining and improving the Texas Union; provided, however, that the amount of this fee may be changed at any time by the Board of Regents within the limits hereinbefore fixed in order that sufficient funds to support the Union may be raised and yet insuring that no surplus, other than the customary reserves, shall ever be accumulated.

Id. at 717. Because the revenue generated by this fee was to be placed in a "Student Union Fee Account" and used exclusively for operation and improvement of the student union, the court held that it was a "privilege" or user fee. Id.

In contrast, revenues raised by the fee imposed by the City's ordinance are, by its own terms, used to pay the general operating expenses of the entire airport instead of limiting the application of the funds to only those facilities used by off-airport operators. The fact that the facilities used by Currey and the other off-airport operators would not exist but for the overall operation of the airport presents no distinction from the fact in Rainey that the student union would not have existed but for the operation of the entire university. In sum, the fee in question here is not a "privilege fee" of the type approved in Rainey.

The City also cites several cases from federal courts ⁽¹¹⁾ and a sister state ⁽¹²⁾ where similar fees have been upheld based, in part, on findings that the user benefited from the existence of the entire airport and not just the use of the airport's roadways. However, each of the federal cases cited by the City involved challenges to fees on the basis that they were violative of the Commerce Clause of the United States Constitution. ⁽¹³⁾ To determine whether a fee violates the Commerce Clause, courts apply the "fair approximation of use" test. ⁽¹⁴⁾ Under this test, courts determine whether a fee places an impermissible burden on interstate commerce by considering the relationship between the fee imposed and the benefit received. For example, the court in Alamo considered the cost of operating the entire airport in determining the reasonableness of the fees in relationship to the costs incurred in operating the airport. Alamo, 906 F.2d at 521.

A fee whose primary purpose is clearly to raise revenue could easily meet the fair approximation of use test and thus be acceptable under the federal constitution's commerce clause. Therefore, the federal cases cited by the City provide no guidance for us in applying the Conlen test to determine whether a fee is a user fee or amounts to a revenue producing tax under state law.

Based on its summary judgment evidence that the revenue generated by the ordinance is expected to produce only 0.216% of the operating expense of the airport, the City argues that the fee's primary purpose cannot be to raise revenue. We disagree.

The correlation between the amount of revenue generated and total expenditures is not probative of the purpose of a legislatively imposed fee. For example, it cannot be questioned that an occupation tax, such as the $200 annual occupation tax imposed on attorneys, ⁽¹⁵⁾ is imposed for the purpose of raising revenue. The fact that revenue from the tax may provide only 0.0314% of the state's operating expenses does not alter its character as revenue raising. ⁽¹⁶⁾

For these reasons, we overrule the City's fourth point in which it contends that the trial court erred in finding that the user fee was a tax because there was insufficient evidence concerning the cost of regulating off-airport operators.

Next, we must decide if the ordinance's user fee has a regulatory justification. The City relies on Creedmoor, 784 S.W.2d at 79, and Beckendorff, 558 S.W.2d at 75, to support its position that the ordinance has a regulatory justification. Both of these cases involved challenges to user fees for the withdrawal of groundwater. In determining that the fees were not improper taxes, the Creedmoor and Beckendorff courts found that the fees imposed economic disincentives to the use of natural resources and, as such, were primarily regulatory in purpose. The revenue raised was merely a byproduct of the fee's primary purpose. Creedmoor, 784 S.W.2d at 82; Beckendorff, 558 S.W.2d at 80.

In considering those cases, it must be noted that the agencies seeking to impose the charges in Creedmoor and Beckendorff were charged with the responsibility of ensuring the "conservation, preservation, protection, recharging, [and] prevention of waste of the underground water," Creedmoor, 784 S.W.2d at 80-81, and to "provide for the regulation of the withdrawal of groundwater within the boundaries of the district for the purpose of ending subsidence," Beckendorff, 558 S.W.2d at 78. The imposition of economic disincentives for withdrawing groundwater clearly and directly served the regulatory purpose with which the agencies were charged.

The City argues that the primary purpose of the user fee is to regulate, rather than to raise revenue, because the fee removes the economic incentive that businesses renting space at the airport might otherwise have if they moved off of the airport. We cannot agree that this is a regulatory power within the scope of the powers conferred upon the City by the Municipal Airports Act.

The imposition of an economic disincentive to prevent a particular type of business from being conducted off, as opposed to on, the City's airport property does not regulate airport activities. Rather, the disincentive infringes upon the ability of a business to choose not to enter into a contract with the City. We do not believe that the City's authority to enter into contracts, ⁽¹⁷⁾ even exclusive contracts, for the provision of services at the airport, includes the power to coerce those who have contracted, or might contract, with the City into maintaining, or entering into, such contracts.

Having found that the fees sought to be collected by the City cannot be justified as a privilege fee for the use of the airport's roadways or as a regulatory measure, we are forced to conclude that the summary judgment evidence establishes, as a matter of law, that the primary purpose of the fee is to produce revenue. Based on this conclusion, under the longstanding rule in Texas, we must find, as did the trial court, that the City's ordinance imposes a tax. As the tax is only imposed on those engaged in a particular occupation, the tax is necessarily an occupation tax, Conlen, 519 S.W.2d at 624, and, as such, is in direct conflict with Article VIII, section 1(f) of the Texas Constitution. Therefore, the user fee provisions of the City's ordinance are void. Hoefling v. City of San Antonio, 85 Tex. 228, 20 S.W. 85, 88-89 (1892). Having shown the trial court that the user fee provisions of the ordinance were void and that enforcement of the provisions threatened a property right, Currey was entitled to the judgment declaring the user fee provisions of the ordinance void and enjoining the collection of those fees. The City's first point is overruled in part. The City's second, third, fifth, sixth, and seventh points of error are overruled.

Our holding that the user fee provisions of the ordinance are void as violative of the Texas Constitution obviates any discussion of the City's eighth and twenty-second points challenging the trial court's ruling that the fee was an unconstitutional attempt to levy an occupational tax upon a mechanical pursuit.

In its twenty-third point, the City asserts that the trial court erred in awarding Currey attorney's fees. The propriety of an award of attorney's fee against a governmental entity in a declaratory judgment action is unsettled. Several cases have held that attorney's fees may be awarded in such cases only when the defense of sovereign immunity has not been raised. Waugh v. City of Dallas, 814 S.W.2d 492, 497 (Tex.App.--Dallas 1991, writ denied); Rodeheaver v. Steigerwald, 807 S.W.2d 790, 793 (Tex.App.--Houston [14th Dist.] 1991, writ denied), cert. denied, ___ U.S.___, 112 S. Ct. 1167, 117 L. Ed. 2d 414 (1992); Bullock v. Regular Veterans Assoc. No. 76, 806 S.W.2d 311, 315 (Tex.App.--Austin 1991, no writ); Falls County v. Perkins and Cullum, 798 S.W.2d 868, 872 (Tex.App.--Fort Worth 1990, no writ). Other cases have held that a governmental unit may be liable for attorney's fees in a declaratory judgment action without stating whether or not the defense of sovereign immunity had been invoked. Duncan v. Pogue, 759 S.W.2d 435, 435-36 (Tex. 1988); Hooten v. Enriquez, 863 S.W.2d 522, 533 (Tex.App.--El Paso 1993, no writ). Here, the City clearly raised the defense of sovereign immunity in its original answer. That being so, we are squarely presented with the question of whether attorney's fees may be awarded against a municipality in an action brought under the Uniform Declaratory Judgments Act ⁽¹⁸⁾ (the Act).

City of El Paso v. Croom Const. Co., 864 S.W.2d 153 (Tex.App.--El Paso 1993, no writ), is the only case we have found in which a similar question was expressly presented and decided. In that case, the majority concluded that attorney's fees may be awarded against a municipality in a declaratory judgment action. Croom, 864 S.W.2d at 155. En route to its decision, the court noted that the Act applies to "persons" defined as follows:

In this chapter, 'person' means an individual, partnership, joint-stock company, unincorporated association or society, or municipal or other corporation of any character. (emphasis added).

Id. at 154-55 (citing Tex. Civ. Prac. & Rem. Code Ann. § 37.001 (Vernon 1986)).

We join with the El Paso Court of Appeals in concluding that the Act clearly waives immunity for municipalities in actions seeking declaratory judgments and, indeed, requires their joinder in any action involving the validity of a municipal ordinance. See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.004, 37.006 (Vernon 1986).

Section 37.009 of the Act provides that, "In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney's fees as are equitable and just." Id. § 37.009. As did the El Paso court, we find the legislature expressly included municipal corporations within the full ambit of the Act. Indeed, there is nothing in the Act indicating any legislative intent to exempt municipalities from the section authorizing the award of attorney's fees and costs. Accordingly, we overrule the City's twenty-third point.

Finally, the remainder of the City's points fail to meet the minimum requisites of Rule 74(f) of the Texas Rules of Appellate Procedure. The City fails to cite any authority or present any argument of more than one sentence in its ninth, twelfth, nineteenth, and twentieth points of error. The eighteenth point contains a two-sentence argument. Failure to cite authority or discuss the facts requisite to maintain a point of error waives the point. New York Underwriters Ins. v. State Farm, 856 S.W.2d 194, 204 (Tex.App.--Dallas 1993, no writ); Board of Comm. of Beaver County v. Amarillo Hospital Dist., 835 S.W.2d 115, 122-23 (Tex.App.--Amarillo 1992, no writ). Consequently, we need not address these points.

In conclusion, we hold that the trial court erred in declaring invalid and enjoining the enforcement of those provisions of the off-airport user fee ordinance requiring permits and payment of the annual fees for those permits. However, the trial court did not err in declaring invalid the user fee provisions of the ordinance and enjoining the City from seeking to recover those fees. Nor did it err in awarding attorney's fees to Currey.

Accordingly, the judgment of the trial court is reformed to delete that portion declaring invalid and enjoining enforcement of those portions of the ordinance requiring off-airport operators to obtain permits and to pay an annual fee for such permits. Tex. R. App. P. 80(b). As reformed, the judgment is affirmed.

John T. Boyd

Justice

Do not publish.

1. Ground transportation services are defined by the ordinance as "[c]arrying, delivering, or transporting passengers, customers, baggage, cargo, freight, or mail for consideration or as a courtesy to or from an off-airport operator's place of business."

2. The ordinance offers no specific mechanism for meeting this burden or for further review if the City and operator do not agree on the percentage of airport generated business.

3. The record does not reflect if this requirement is placed on those who rent space at the airport.

4. Each of those cases arose in the context of claimed violations of federal antitrust law.

5. Acts of April 7, 1913, 33rd Leg., 1913 Tex. Gen. Laws 307.

6. The City has notably ignored the first condition imposed on recipients of airport development grants, i.e., that "the airport to which the project relates [] be available for public use on fair and reasonable terms without unjust discrimination. . . ." 49 App. U.S.C. § 2210(a)(1) (1988).

7. The City complains of Currey's offering the first finding as summary judgment evidence even though an identical statement is contained in an affidavit filed by the City as summary judgment evidence.

8. Act of June 12, 1967, 60th Leg., R.S., ch. 462, 1967 Tex. Gen. Laws 1052 (repealed 1981).

9. Id. § 15.

10. Id. § 2(4).

11. Alamo Rent-A-Car, Inc. v. City of Palm Springs, 955 F.2d 30 (9th Cir. 1991)(per curiam); Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Airport Auth., 906 F.2d 516 (11th Cir. 1990), cert. denied, 498 U.S. 1120, 111 S. Ct. 1073, 112 L. Ed. 2d 1179 (1991); Toye Bros. Yellow Cab Co. v. Irby, 437 F.2d 806 (5th Cir. 1971); Airline Car Rental, Inc. v. Shreveport Airport Auth., 667 F. Supp. 303 (W.D. La. 1987). Not cited by the City, but relevant to our discussion is Evansville-Vanderburgh Airport Auth. Dist. v. Delta Airlines, 405 U.S. 707, 92 S. Ct. 1349, 31 L. Ed. 2d 620 (1972).

12. Jacksonville Port Authority v. Alamo Rent-A-Car, Inc., 600 So. 2d 1159 (Fla.Dist.Ct.App. 1992).

13. U.S. Const. art. I, § 8, cl. 3. In Jacksonville Port Authority, the Florida appellate court misapplied the reasoning of the cases discussing the commerce clause to determine the status of a fee. In apparent reliance on the analysis made in Jacksonville Port Authority, the City contends that the difference between taxes and user fees is defined in Commonwealth Edison Co. v. Montana, 453 U.S. 609, 101 S. Ct. 2946, 69 L. Ed. 2d 884 (1981). This is an inaccurate reading of that case. The Court in Commonwealth Edison did not discuss whether the charge was a user fee or a tax, rather, it accepted the Montana Supreme Court's characterization of the charge as a tax and explicitly "put to one side" those cases reviewing challenges to user fees. Id. at 621.

14. The United States Supreme Court set out this test in Evansville-Vanderburg Airport Auth., 498 U.S. at 716-17.

15. Tex. Tax Code Ann. § 191.142 (Vernon 1992).

16. This value is calculated assuming that all 55,000 of the state's licensed attorneys are liable for the tax (55,000 x $200 = $11,000,000). Dividing the revenue raised, $11 million, by one half of the state's $70 billion biennial budget, Legislative Budget Board, Fiscal Size Up, 1994-95 Biennium, or $35 billion, results in the figure of 0.000314, or 0.0314 percent.

17. As conferred upon the City by Article 46d-4 of the Municipal Airports Act.

18. Tex. Civ. Prac. & Rem. Code §§ 37.001-.011 (Vernon 1986).