Our Texas Legal Counsel, Ken Good, is working on the new appeal in regard to the Cox case, which addresses the charging of civil appellate fees to bail bond forfeitures appeals. It is starting to look like an old unfairness to bail bond agents may be about over. The following summary of the case and the appeal is presented below.
Texas High Court Rules in Favor of Bondsmen 7-2
In Texas, the courts have held for over 100 years that bail bond forfeiture cases are criminal cases. Nevertheless, the trial courts and the majority of the courts of appeal in Texas docket the cases as civil cases and as civil appeals. By doing this, the courts attribute substantial filing fees as court costs in the cases and charge civil appellate filing fees. Safety National Casualty Corp., agent Mike Cox v. The State of Texas, ___ S.W.3d ____, 2010 WL 715246 (Tex. Crim. App. 2010), the Texas Court of Criminal Appeals addressed the issue of appellate filing fees. The court reviewed the three statutes that make up the currently filing fees totaling $175.00. Since two of the statutes did not state that the fees were limited to civil appeals, the Court conducted a historical analysis and held that traditionally these fees only applied to civil appeals, and therefore, the fees could not be applied to bail bond forfeiture appeals since they are criminal cases. In effect, the Court told the majority of the courts of appeals in Texas that the practice they had been following was incorrect and must be changed.
The Texas Court of Criminal Appeals left open for another day the issue of the civil filing fees attributed to bond forfeiture cases before the trial courts. The Court held that the second issue was not ripe for consideration at this time. Although the issue was not addressed directly by the trial court, the parties attempted to convince the Court of Criminal Appeals to resolve it anyway. However, the Court declined.
This second issue has many faucets. First, the counties in Texas are inconsistent in their application of the issue. A small number of counties attribute zero civil court costs to criminal bond forfeiture cases. Second, the counties that do attribute civil filing fees are inconsistent in the amount. Counties on the low end attribute around $50.00. The average across the state of Texas is approximately $250.00 a case. On the high end, there are several counties that attribute over $400.00 a case in civil filing fees to these criminal bond forfeiture cases. Fourth, the State is really talking out of both sides of its mouth on this issue. The State wants to attribute civil filing fees when the State is successful, but at the same time, the State never pays the court costs when the State loses. It is settled in Texas that when a state agency files suit in a civil case, it can delay payment of filing fees and include them in the court costs if the agency wins, but the agency must come back and pay the filing fees if the agency loses the case on the merits. In Texas, no county complies with this requirement. No counties pays filing fees on cases the bondsmen win or which the county nonsuit.
Further, the statutes that make up the various civil filing fees before the trial courts expressly state that the fees are to be collected upon the filing of a “civil” case. Therefore, whereas two of the three appellate filing fee statutes in Cox did not expressly state that they were limited to civil appeals, the statutes comprising the trial court civil filing fees are much stronger for the position of the bondsmen because they all expressly state that they apply civil cases. In Cox, the dissent argued that a bond forfeiture case was a “quasi-civil” case, and therefore, civil filing fees and appellate fees could be applied. However, this argument was rejected by the 7 judges in the majority regarding the appellate filing fee.
The issue of whether trial court costs in a criminal bond forfeiture case can include civil filing fees is also pending before the Dallas Court of Appeals. See Cause 05-08-01680-CV; Ranger Insurance Co. v. The State of Texas; Before the Dallas Court of Appeals. This was the sole issue upon which this case was tried and briefed to the court of appeals. The case was argued on January 12, 2010. During argument one justice brought up the argument that bond forfeiture cases were “quasi civil cases.” However, this argument was rejected in Cox. An opinion is expected from the Dallas Court of Appeal at anytime.