Opinion
NO. 02-16-00477-CV
11-16-2017
THOMAS A. WILDER, DISTRICT CLERK APPELLANT v. BETTYE LASHANE MERRITT APPELLEE
FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 017-264181-13 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
In 2012, Appellant Thomas A. Wilder, the Tarrant County District Clerk, billed indigent litigants—including Appellee Bettye Lashane Merritt—for court costs and fees incurred in their divorce cases. The Texas Supreme Court affirmed the trial court's order temporarily enjoining the District Clerk's actions and remanded the case to the trial court. After remand, the District Clerk filed a plea to the jurisdiction arguing that derived judicial immunity and governmental immunity protected him against Merritt's equitable-reimbursement claim. The trial court disagreed and denied the District Clerk's plea.
The District Clerk has appealed, raising one issue complaining that the trial court erred by denying his jurisdictional plea because Merritt's equitable-reimbursement claim is barred by either or both types of immunity. Because we conclude that the trial court's ruling was correct, we will affirm its order.
Background
Merritt and seven others (collectively, the Petitioners) were divorce petitioners in Tarrant County. Each filed an affidavit of indigence in lieu of costs under civil-procedure rule 145, affidavits that were either uncontested or the subject of a withdrawn contest. See Tex. R. Civ. P. 145. But their final divorce decrees allocated costs, stating either that "costs of Court are to be borne by the party who incurred them," or that "[t]he Husband will pay for his court costs [and] the Wife will pay for her court costs." The decrees did not state the amount of costs due or that any party could afford them.
Odell Campbell, Shawnta Renea Coleman, Thomas Ray Robertson, Diana J. Najera, Scott Wiernik, TaiRhonda McAfee, and Marybeth Lynn Jewell are not parties to this appeal.
Rule 145 was amended, effective September 1, 2016. See Supreme Court of Tex., Final Approval of Amendments to the Texas Rules of Civil Procedure and the Texas Rules of Appellate Procedure and of a Form Statement of Inability to Afford Payment of Court Costs, Misc. Docket No. 16-9122 (Aug. 31, 2016). Unless otherwise noted, any reference to rule 145 is to the version that existed prior to that date. See Tex. R. Civ. P. 145, 68 Tex. B.J. 854 (2005, amended 2016).
Applying the decrees' costs language rather than the indigency affidavits, the District Clerk sent each Petitioner a cost bill demanding about $300 in court costs and fees. The District Clerk later sent payment-default certifications to most of the Petitioners threatening that the sheriff would seize their property to satisfy the debt. Merritt is the only Petitioner who paid any portion of the costs; she has paid $50. The other Petitioners objected based on their indigency status.
In February 2013, Petitioners sued the District Clerk in his official capacity for mandamus, injunctive, and declaratory relief, arguing that they should not have to pay court costs because they were indigent. After an evidentiary hearing, the trial court temporarily enjoined the District Clerk from
continuing his policy of collection of court costs from indigent parties who have filed an affidavit o[f] indigency under Tex. R. Civ. P. 145 where the affidavit was not contested, or where the contest was denied or withdrawn, unless there were specific findings expressly stated in a final judgment or order providing that the indigent party's action resulted in monetary award and that the monetary award was sufficient to reimburse costs.
The District Clerk appealed. Relying on the Texas Supreme Court's decision in Evans v. Pringle, 643 S.W.2d 116 (Tex. 1982), we concluded that the trial court lacked jurisdiction to enjoin the District Clerk's actions, vacated the injunction, and dismissed the case for lack of subject-matter jurisdiction. Wilder v. Campbell, 430 S.W.3d 474, 477-80 (Tex. App.—Fort Worth 2014), rev'd, Campbell v. Wilder (Wilder I), 487 S.W.3d 146 (Tex. 2016). The Texas Supreme Court reversed, overruling Evans and holding that the trial court did in fact have jurisdiction over the Petitioners' case. Wilder I, 487 S.W.3d at 147-52. The supreme court affirmed the injunction on the merits and remanded the case to the trial court. Id. at 152-54.
After remand, the District Clerk filed a plea to the jurisdiction challenging Merritt's equitable-reimbursement claim. Merritt—the only Petitioner who responded to the District Clerk's collection efforts by paying any court costs and fees—seeks equitable reimbursement of those costs and fees as supplemental relief under the Texas Declaratory Judgments Act. See Tex. Civ. Prac. & Rem. Code Ann. § 37.011 (West 2015). The Petitioners' pleading alleged that the District Clerk would be unjustly enriched if he is not ordered to reimburse Merritt and all "similarly situated" indigent litigants for the court costs that he has collected.
The Petitioners have pleaded for class-action relief, but the trial court has not certified a class.
In his jurisdictional plea, the District Clerk challenged the sufficiency of Merritt's pleadings, arguing that because he was acting in his official capacity and within his jurisdiction as district clerk when he assessed court costs against the Petitioners, he is entitled to derived judicial immunity and governmental immunity as to Merritt's equitable-reimbursement claim. After a nonevidentiary hearing, the trial court denied the plea.
Standard of Review
We review de novo a trial court's ruling on a plea to the jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). A jurisdictional plea can advance two types of challenges: a challenge to pleading sufficiency or a challenge to the existence of jurisdictional facts. Id. at 226-27. When, as here, a plea challenges the pleadings, we determine whether the plaintiff has met her burden of alleging facts affirmatively demonstrating that the trial court has subject-matter jurisdiction. See id. at 226. We construe the pleadings liberally in the plaintiff's favor, accept all factual allegations as true, and look to the plaintiff's intent. Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012). If the pleadings are insufficient to establish the trial court's jurisdiction but do not affirmatively demonstrate an incurable defect in jurisdiction, the issue is one of pleading sufficiency, and the plaintiff should be given an opportunity to amend. Miranda, 133 S.W.3d at 226-27. But if the pleadings affirmatively negate the existence of jurisdiction altogether, then a plea to the jurisdiction may be granted without allowing a (necessarily futile) chance to amend. See id. at 227.
Derived Judicial Immunity
As part of his sole issue, the District Clerk argues that the trial court erred by denying his plea to the jurisdiction because derived judicial immunity protects him against Merritt's equitable-reimbursement claim.
An officer of a court who is entitled to the protection of derived judicial immunity "receives the same immunity as a judge acting in his or her official judicial capacity—absolute immunity from liability for judicial acts performed within the scope of jurisdiction." Dallas Cty. v. Halsey, 87 S.W.3d 552, 554 (Tex. 2002). Judicial immunity can attach to certain nonjudges because the policy reasons for judicial immunity—to protect the individual judge as well as the public's interest in an independent judiciary—are also implicated when judges delegate or appoint a person to perform services for the court or when a person serves as an officer of the court. Id. In those circumstances, the immunity attaching to the judge follows the delegation, appointment, or court employment. Id. The person acting in such a capacity thus also enjoys absolute immunity, derivatively. See id.
Texas uses a functional approach to determine whether someone is entitled to derived judicial immunity. See, e.g., id. at 554-57; B.W.D. v. Turnage, No. 05-13-01733-CV, 2015 WL 869289 at *4 (Tex. App.—Dallas Mar. 2, 2015, pet. denied) (mem. op.); Conner v. Guemez, No. 02-10-00211-CV, 2010 WL 4812991, at *3 (Tex. App.—Fort Worth Nov. 24, 2010, no pet.) (mem. op.); Alpert v. Gerstner, 232 S.W.3d 117, 126 (Tex. App.—Houston [1st Dist.] 2006, pet. denied); Ramirez v. Burnside & Rishebarger, L.L.C., No. 04-04-00160-CV, 2005 WL 1812595, at *1 (Tex. App.—San Antonio Aug. 3, 2005, no pet.) (mem op.); B.K. v. Cox, 116 S.W.3d 351, 357 (Tex. App.—Houston [14th Dist.] 2003, no pet.). This approach "looks to whether the person seeking immunity is intimately associated with the judicial process" and to whether that person "exercises discretionary judgment comparable to that of the judge," as opposed to whether that person engages in ministerial or administrative tasks. Halsey, 87 S.W.3d at 554, 557. "[A]s applied in Texas, the functional approach in applying derived judicial immunity focuses on the nature of the function performed, not the identity of the actor, and considers whether the court officer's conduct is like that of the delegating or appointing judge." Id. at 555.
The District Clerk's actions in tabulating and taxing costs are indisputably and intimately associated with the judicial process. But Merritt argues that under Halsey's functional-approach analysis, the District Clerk is not entitled to derived judicial immunity because these actions are not really judicial. To use Halsey's language, Merritt in essence asserts that the District Clerk's conduct is not "like that of [a] delegating or appointing judge." Id.
The Halsey court applied this functional approach to conclude that a court reporter was not immune from liability for preparing an error-ridden reporter's record. Id. at 553, 557. There, the county had sued the reporter for fraud, breach of contract, and deceptive-trade-practices-act violations and sought to recover what it had paid her to prepare the record. Id. at 553. The supreme court held that "because court reporters do not engage in a discretionary function or exercise judgment comparable to that of a judge while preparing a reporter's record, they are not entitled to derived judicial immunity for that function." Id.
In reaching this holding, the court explained that, when a party requests it, a court reporter "prepares an exact copy of the proceedings," something that "requires skill and training, but does not involve judicial decisionmaking." Id. at 557. Because preparing the record "does not necessitate the use of discretion, but is more in the nature of a ministerial or administrative task," a court reporter "does not participate in the judicial decisionmaking process or exercise discretion" and thus a reporter's actions "do not fall under the protection of judicial immunity." Id.
Merritt argues that like a court reporter's preparing the record, the District Clerk's tabulating and taxing costs were ministerial acts and did not involve an exercise of discretion comparable to that of a judge. In Wilder I, the supreme court—in concluding that civil practice and remedies code section 65.023 did not apply—explained that the District Clerk had a "ministerial duty to bill costs" as a judgment requires. 487 S.W.3d at 151-52. But the Petitioners' divorce decrees did not order them to pay costs or state an amount to be charged; the decrees only allocated the costs between the parties. Id. The District Clerk had a ministerial duty in each case to tabulate the costs and to apply the indigence affidavit. Id. at 152. But because the Petitioners' indigence affidavits were "[i]n lieu of paying or giving security for costs," see Tex. R. Civ. P. 145(a), there were "no costs to bill." Wilder I, 487 S.W.3d at 151; see Equitable Gen. Ins. Co. of Tex. v. Yates, 684 S.W.2d 669, 671 (Tex. 1984) ("An uncontested affidavit of inability to pay is conclusive as a matter of law.").
Tex. Civ. Prac. & Rem. Code Ann. § 65.023(b) (West 2008) ("A writ of injunction granted to stay proceedings in a suit or execution on a judgment must be tried in the court in which the suit is pending or the judgment was rendered.").
The supreme court made clear that the District Clerk's complained-of actions were part of his ministerial duties as a trial-court clerk. See Wilder I, 487 S.W.3d at 147, 151-52. Ministerial acts, by definition, involve no discretion: they are acts "where the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment." Hall v. McRaven, 508 S.W.3d 232, 238 (Tex. 2017) (quoting Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 587 (Tex. 2015)). Also, it is the clerk's—not the trial court's—duty to tabulate and tax costs; the trial court merely allocates, adjudges, or orders costs. See Wood v. Wood, 320 S.W.2d 807, 812-13 (Tex. 1959) ("The province of the court is to adjudge all the costs, whatever they may be, against the losing party, or for good cause shown to adjudge the costs otherwise. . . . The taxing of costs is not an adjudication by the court of the correctness of the items taxed by the clerk. It is the ministerial act of the clerk."); see also Tex. R. Civ. P. 622 (requiring district clerks to "tax the costs in every case in which a final judgment has been rendered and . . . issue execution to enforce such judgment and collect such costs").
The District Clerk acknowledges that tabulating and taxing costs is not discretionary but argues that because he decided to tax costs despite the indigence affidavits, he used (and no doubt abused) his discretion. Cf. In re Villanueva, 292 S.W.3d 236, 246 (Tex. App.—Texarkana 2009, orig. proceeding) (concluding that family court abused its discretion when it ordered indigent divorce litigant to pay costs despite uncontested indigence affidavits). That is, when faced with reconciling the costs language in the decrees and rule 622—which requires the District Clerk to "tax the costs in every case in which a final judgment has been rendered and . . . issue execution to enforce such judgment and collect such costs"—with the rule 145 indigence affidavits, the District Clerk decided to rely on the decrees' language and tax the costs notwithstanding the Petitioners' indigence status. Compare Tex. R. Civ. P. 145, with Tex. R. Civ. P. 622.
Merritt's decree stated that "[t]he Husband will pay for his court costs; the Wife will pay for her court costs."
Current rule 145 expressly prohibits a clerk from taxing costs against an indigent party: "A party who files a Statement of Inability to Afford Payment of Court Costs cannot be required to pay costs except by order of the court [finding that the party can afford to pay costs]." Tex. R. Civ. P. 145(a).
But even assuming that the District Clerk's actions were discretionary, tabulating and taxing costs are the clerk's duties entirely, not those of the trial-court judge. And it is the latter's position from which any arguable judicial immunity must derive.
The District Clerk cites several cases to back up the notion that when acting in the course of their duties, court clerks are protected by derived judicial immunity. See Albert v. Adelstein, No. 02-13-00073-CV, 2013 WL 4017511, at *2 (Tex. App.—Fort Worth Aug. 8, 2013, no pet.) (mem. op.); Enriquez v. Rodriguez-Mendoza, No. 03-12-00220-CV, 2013 WL 490993, at *2 (Tex. App.—Austin Feb. 1, 2013, no pet.) (mem. op.); Spencer v. City of Seagoville, 700 S.W.2d 953, 959 (Tex. App.—Dallas 1985, no writ) (op. on reh'g); see also Thompson v. Coleman, No. 01-01-00114-CV, 2002 WL 1340314, at *5 (Tex. App.—Houston [1st Dist.] June 20, 2002, pet. ref'd) (not designated for publication). But under Halsey's functional approach, the focus is not on the actor's identity but on the function that the actor performs; the question is whether the actor is "intimately associated with the judicial process" and "exercises discretionary judgment comparable to that of the judge." Halsey, 87 S.W.3d at 554. Because the District Clerk's tabulation and taxation of costs are ministerial duties belonging to the clerk—and not to the trial-court judge—Wilder was not exercising discretionary judgment comparable to that of a judge. Judicial immunity thus does not bar Merritt's equitable-reimbursement claim against the District Clerk.
Although our reading of Halsey and Wilder I constrains us to overrule the derived-judicial-immunity aspect of the District Clerk's issue, we note the fact- specific and limited nature of this holding. There are undoubtedly myriad situations in which district clerks do function within the orbit of discretionary judge-like decision-making such that derived judicial immunity will be entirely warranted. Here, though, Wilder I points us in the other direction.
The Texas supreme court's 2016 amendments to rule 145 clarify that the District Clerk's taxing costs against a litigant such as Merritt cannot reoccur.
As we noted, the supreme court explicitly held that the District Clerk's actions in this specific case—tabulating the costs, applying the affidavits of indigency, and billing costs—were ministerial, not discretionary. Wilder I, 487 S.W.3d at 151-52. This clear and specific holding based on the facts before us affords no leeway for a conclusion that the District Clerk is entitled to derived judicial immunity, which depends on a discretionary act that is closely associated with the judicial process. See Halsey, 87 S.W.3d at 554, 557. But our conclusion is based on the unambiguous language in Wilder I and should not be read to categorically exclude a clerk's future actions from derived judicial immunity. We merely hold that this district clerk's actions based on the supreme court's holding in this case results in a holding that these challenged actions do not qualify for derived judicial immunity because they have been specifically categorized as ministerial acts.
We overrule the District Clerk's issue regarding derived judicial immunity.
Governmental Immunity
In the remainder of his only issue, the District Clerk argues that the trial court erred by denying his jurisdictional plea because governmental immunity bars Merritt's equitable-reimbursement claim. Merritt pleaded that the District Clerk does not have immunity from that claim because the District Clerk's actions violated civil-procedure rule 145 and Merritt's payments were made under duress and, alternatively, because the District Clerk's actions violated the Texas constitution's takings clause, see Tex. Const. art. I, § 17.
Governmental immunity does not bar actions for declaratory relief against state officials who allegedly act without legal or statutory authority; such suits are not against the State because "suits to compel state officers to act within their official capacity do not attempt to subject the State to liability." Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); see City of El Paso v. Heinrich, 284 S.W.3d 366, 371-72 (Tex. 2009) (explaining that suits to require state official to comply with statutory or constitutional provisions are not barred by sovereign immunity). And as the District Clerk acknowledges, it is well settled that governmental immunity does not bar "a claim for declaratory or injunctive relief seeking the refund of illegally collected taxes or fees if the plaintiff alleges 'that the payments were made as a result of fraud, mutual mistake of fact, or duress, whether express or implied.'" Gatesco, Inc. v. City of Rosenberg, 312 S.W.3d 140, 144 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (quoting Nivens v. City of League City, 245 S.W.3d 470, 474 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (op. on reh'g)); see also Dallas Cty. Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 877 (Tex. 2005) ("Reimbursement of illegal fees and taxes is allowed, in essence, when the public entity compels compliance with a void law and subjects the person to punishment if he refuses or fails to comply."); McDaniel v. Town of Double Oak, No. 02-10-00452-CV, 2012 WL 662367, at *8 (Tex. App.—Fort Worth Mar. 1, 2012, pet. denied) (mem. op.) (collecting cases).
The District Clerk claims that the declaratory-judgments act does not waive his immunity from suit because Merritt is really trying to recover damages. But that is incorrect. Merritt is seeking not "damages" but a refund of the court costs and fees she paid as a result of the District Clerk's allegedly void actions. See Brennan v. City of Willow Park, 376 S.W.3d 910, 925 (Tex. App.—Fort Worth 2012, pet. denied) (op. on reh'g) (stating that a request for a refund of wrongfully assessed back city taxes is not one for money damages).
"Petitioners are not complaining of a one-off miscalculation or mistake, but of a systematic policy that contravenes the law." Wilder I, 487 S.W.3d at 153.
The District Clerk also asserts that Merritt's pleadings regarding duress are insufficient to support an immunity waiver. We disagree. In addition to repeatedly asserting that she paid court costs and fees under duress, Merritt specifically pleaded that she made these payments "under duress to prevent imminent and irreparable injury in the form of a levy and sale of real and personal property and damage to [her] credit." Construing Merritt's pleadings liberally in her favor, accepting all factual allegations as true, and looking to her intent, we conclude that she sufficiently pleaded that she paid the illegal court costs and fees under duress. See id. at 925 (concluding that taxpayers' pleading that those "who made any full or partial payments of the illegal [tax] bills sent out by [the tax assessor/collector] did so under duress" was sufficient to plead duress); see also Highland Church of Christ v. Powell, 640 S.W.2d 235, 237 (Tex. 1982) (holding that duress may be implied from a statute that imposes a penalty and interest for failure to timely pay a tax); State v. Akin Prods. Co., 286 S.W.2d 110, 111-12 (Tex. 1956) (holding that if "a reasonably prudent man finds that in order to preserve his property or protect his business interest it is necessary to make a payment of money which he does not owe," the taxes are paid under duress); Saturn Capital Corp. v. City of Houston, 246 S.W.3d 242, 246 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (describing the duress necessary to authorize illegal-fee recovery as "when the unauthorized . . . fee is required, necessary, or shall be paid to avoid the government's ability to charge penalties or halt a person from earning a living or operating a business").
In sum, governmental immunity does not bar Merritt's claim for equitable reimbursement seeking the refund of the court costs and fees that she has paid. Because Merritt pleaded sufficient facts to show an immunity waiver as to her equitable-reimbursement claim, we do not address the sufficiency of her pleadings under the Texas constitution's takings clause. See Tex. R. App. P. 47.1.
We overrule the District Clerk's issue regarding governmental immunity.
Conclusion
Having overruled the District Clerk's only issue, we affirm the trial court's order denying the District Clerk's plea to the jurisdiction.
/s/ Elizabeth Kerr
ELIZABETH KERR
JUSTICE PANEL: GABRIEL and KERR, JJ. DELIVERED: November 16, 2017
Chief Justice Livingston was a member of the original panel but has retired in the interim. This case was decided by the two remaining judges. See Tex. R. App. P. 41.1(b).