      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-05-00448-CV



                     John Mining d/b/a Fast Action Bail Bonds, Appellant

                                                 v.

                            Hays County Bail Bond Board, Appellee




      FROM THE DISTRICT COURT OF HAYS COUNTY, 297TH JUDICIAL DISTRICT
            NO. 05-0593, HONORABLE JACK ROBISON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               John Mining brings this pro se appeal of the district court’s order granting the Hays

County Bail Bond Board’s plea to the jurisdiction. Mining contends that the district court erred by

overruling his motion to recuse district judge Jack Robison and asserts that the district court had

jurisdiction to hear his claims. Because we hold that the district court erred by dismissing Mining’s

claims for declaratory and injunctive relief, we remand the case to the district court for further

proceedings.

                                         BACKGROUND

               The Hays County Bail Bond Board was formed in 2001 pursuant to section 1704.052

of the occupations code.1 Because the creation of the Board triggered the application of the


       1
          Chapter 1704 of the occupations code applies to all counties with a population over
110,000, and all such counties must create a bail bond board. Tex. Occ. Code Ann. § 1704.051
occupations code’s licensing requirements, the newly created Board then considered applications for

licenses by the various bail bond services operating in Hays County. See Tex. Occ. Code. Ann.

§ 1704.002, .151 (West 2004). Mining owned and operated an established bail bond service at the

time and applied for a license. Mining’s license was conditionally approved by the Board and he was

given 90 days to provide sufficient collateral. See id. § 1704.160 (West 2004) (applicant to provide

security not later than the 90th day after notice of conditional approval). To satisfy the security

requirements of the statute, Mining executed a deed of trust to real property he owned in Hays

County to the Board. See id. Although Mining executed the deed of trust after the ninety-day

statutory deadline, the Board accepted the security and finally approved Mining’s license.

                Mining continued to do business as a licensed bail bond surety under the name Fast

Action Bail Bonds. By January 2005, Mining was acting as surety on over one million dollars of

outstanding bonds. In 2004, the owner of another bail bond service filed a declaratory judgment

action alleging that the Board had improperly licensed other bail bond sureties. Specifically, the suit

contended that the Board had permitted license holders to execute more bail bonds than permitted

by statute in relation to the amount of security held by the county. See id. §1704.202 (West 2004).2



(West 2004). A county with a population under 110,000 may create a bail bond board at its
discretion. See id. § 1704.052 (West 2004). Chapter 1704 applies only to those less populous
counties that choose to create a board. See id. § 1704.002(2) (West 2004).
        2
           The suit challenged the Board’s practice of equating “years of prior good service” in Hays
County as years licensed for the purposes of the security requirement in section 1704.203 of the
occupations code. The code limits the total bond liability that a license holder may carry to a
multiple of value of the property held by the Board. See Tex. Occ. Code Ann. § 1704.203(f) (West
2004). The multiple depends on the number of years the bail bond surety has held a license. See,
e.g., id. § 1704.203(f)(1) (if licenced less than two years, bond surety may issue bonds totaling up
to five times value of property), .203(f)(4) (if licensed for at least six years, may issue bonds totaling
up to ten times value of property).

                                                    2
After a hearing, the district court issued a temporary injunction that required Mining and other bail

bond sureties to submit additional security to cover their outstanding bond liability. Mining refused

to provide additional security and made a request to the Board to withdraw the security he had

previously provided; moreover, Mining entered into a contract to sell the property secured by the

deed of trust he had given the Board. Mining also submitted a letter surrendering his license to issue

bonds under the name Fast Action Bail Bonds.3 The minutes of a January 21, 2005, Board meeting

reflect that the Board accepted Mining’s letter surrendering his license and tabled Mining’s other

requests “for a later date to hear the thoughts and comments of the District Attorney.” Mining never

obtained a decision by the Board on his request to withdraw his property as security.

               In an effort to bolster his pending request to withdraw his security from the Board,

Mining asked for declaratory relief that would eliminate all of his bond liability and invalidate the

deed of trust held by the Board. Specifically, Mining asked for:


       (1) A declaration that the policy of the Hays County Bail Bond Board of approving
       permanent license for Bail Bond Surety applicants that take longer than 90 days to
       execute a Deed of Trust or deposit a minimum of $50,000 with The Board, was and
       still is without any legal authority. (2) A declaration that the resolution passed by the
       Board on Nov. 16, 2001 giving Property Bail Bondsman the privilege of multiplying
       their collateral by ten instead of five, was and still is without any legal authority. (3)
       A declaration that, bonds written by unlicensed Sureties pursuant to 1704.160 and
       licensed Sureties without sufficient security pursuant to 1704.203 of the Texas
       Occupation[s] Code, are “null, void, invalid, unenforceable and of no effect.” (4) A
       Judicial Finding of Fact that the Deed of Trust filed by the Board against Plaintiff’s
       property . . . was “null, void, invalid, unenforceable and of no effect.”




       3
          It appears from Mining’s reply brief that he had obtained a new license from the Board to
act as a bail bond surety under the name Freedom Won prior to surrendering his first license under
the name Fast Action Bail Bonds.

                                                   3
               In effect, Mining sought to invalidate his own license because he had not provided

the Board with security within 90 days of his application, even though he had written bonds totaling

a liability of more than one million dollars using his license, earning a commission on each. He

further suggested that the deed of trust he provided was invalid and unenforceable because his

license itself was invalid. This position ignores the outstanding liability incurred for those bonded

individuals who failed to appear in court, the very liability secured by the deed of trust. See Garza

v. State, 50 S.W.3d 619, 620 (Tex. App.—Corpus Christi 2001, no pet.); Watson v. State, 32 S.W.3d

335, 337-38 (Tex. App.—San Antonio 2000, pet. ref’d) (argument that bond invalid because not

issued by licensed bail bondsman waived when not raised at time bond was executed and presented).

               Mining also asked for damages in the amount of $130,000 plus $260,000 in

exemplary damages. He further requested an injunction prohibiting the Board from “accepting

bonds from unlicensed Bail Bond Sureties and Sureties without sufficient collateral pursuant to all

of the provisions of the Occupation[s] Code 1704.” Mining’s suit was dismissed by the district court

on the Board’s plea to the jurisdiction.


                                           DISCUSSION

Motion to Recuse

               In his first issue, Mining contends that Judge B.B. Schraub, Presiding Judge of the

Third Administrative Judicial Region, erred by overruling his motion to recuse District Judge Jack

Robison. At the hearing on his motion to recuse, Mining argued that Judge Robison’s impartiality

could reasonably be questioned because the success of Mining’s lawsuit would result in extra work

for Judge Robison. Mining explained that if all of the bonds that had been written by improperly

                                                 4
licensed sureties were declared null and void, Judge Robison would have to consider thousands of

cases to decide whether to issue arrest warrants. Mining also argued that some of the members of

the Board are fellow judges and court personnel who are closely affiliated with Judge Robison.

               If a motion to recuse is denied, it may be reviewed on appeal from a final judgment.

Tex. R. Civ. P. 18a(f). Here, Mining speculates that Judge Robison’s decision in his case could have

added to the district court’s workload. However, the mere possibility that a district judge’s docket

may grow is not evidence that the judge “knows” that he has a financial or other interest in the

outcome for the purposes of rule 18b. See Tex. R. Civ. P. 18b(2)(e). Nor does the fact that another

judge and a member of the court staff are parties to the suit in their official capacity as board

members, without more, indicate a “personal bias or prejudice” toward the parties. Id. 18b(2)(b).

Having reviewed the record of the recusal hearing and the hearing on the Board’s plea to the

jurisdiction, we conclude that the denial of Mining’s motion to recuse was not an abuse of discretion.

We overrule Mining’s first issue.


Plea to the Jurisdiction

               In his second issue, Mining contends that the district court had subject matter

jurisdiction over his claims and erred by granting the Board’s plea to the jurisdiction. The district

court’s findings indicate that Mining’s claims for damages were dismissed because the statute

contained no “clear and unequivocal waiver of sovereign immunity.” Mining’s declaratory claims

were dismissed because the district court found that the Board has exclusive jurisdiction over

Mining’s claims and that Mining had failed to exhaust his administrative remedies. The district court




                                                  5
dismissed Mining’s claims for injunctive relief because Mining failed to name Hays County, an

indispensable party to his suit.


    Sovereign Immunity

               Sovereign immunity, unless waived, protects a governmental entity from lawsuits for

damages. See Texas Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex.

2002); General Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001). This

comports with the purpose of sovereign immunity to “preserve the legislature’s interest in managing

state fiscal matters through the appropriations process.” Tex. Gov’t Code Ann. § 311.034 (West

2005); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex. 2003). The Board was

created by Hays County pursuant to section 1704.052 of the occupations code. A body created by

statute, such as the Board, is a governmental entity entitled to sovereign immunity. See Thayer v.

Houston Mun. Employees Pension Sys., 95 S.W.3d 573, 577 (Tex. App.—Houston [1st Dist.] 2002,

no pet.) (municipal pension system and board created pursuant to statute are entitled to governmental

immunity).

               Mining has cited no waiver of sovereign immunity to support his suit for damages

at the district court or on appeal, and his claims for damages cannot be considered as part of his

declaratory action. The supreme court has held that the declaratory judgment act does not contain

an independent waiver of sovereign immunity. See IT-Davy, 74 S.W.3d at 855 (“The DJA does not

extend a trial court’s jurisdiction, and a litigant’s request for declaratory relief does not confer

jurisdiction on a court or change a suit’s underlying nature.”). Sovereign immunity is not implicated

in lawsuits seeking declaratory relief that do not subject the State to liability because such suits are

                                                   6
not considered “suits against the State.” Id.; W.D. Haden Co. v. Dogden, 308 S.W.2d 838, 840 (Tex.

1958). Here, Mining’s claims for declaratory and injunctive relief concern allegations that the Board

acted outside of its statutory authority. These claims do not subject the state to liability and,

therefore, should not be considered suits against the State. See IT-Davy, 74 S.W.3d at 855; Dogden,

308 S.W.2d at 840. However, Mining’s claims for damages unquestionably subject the State to

liability. Because there is no waiver of sovereign immunity as to Mining’s claims for damages, the

district court properly dismissed these claims for lack of subject matter jurisdiction.


    Exclusive Jurisdiction

               The Board contends that it has exclusive jurisdiction over the issues raised in

Mining’s suit and that his failure to exhaust his administrative remedies deprives the court of subject

matter jurisdiction. See In re Entergy Corp., 142 S.W.3d 316, 322 (Tex. 2004). An agency has

exclusive jurisdiction where the statute creates a pervasive regulatory scheme indicating that the

legislature “intended for the regulatory process to be the exclusive means of remedying the problem

to which the regulation is addressed.” Id. (quoting Humphrey, Comment, Antitrust Jurisdiction and

Remedies in an Electric Utility Price Squeeze, 52 U. Chi. L. Rev. 1090, 1107 n.73 (1985)); Subaru

of Am., Inc. v. David McDavid Nissan, 84 S.W.3d 212, 221 (Tex. 2002).

               However, the Board’s reliance on exclusive jurisdiction is misplaced. In order for

exclusive jurisdiction to apply, the Board must have authority to determine the controversy at issue.

Juliff Gardens, L.L.C. v. Texas Comm’n on Envtl. Quality, 131 S.W.3d 271, 278 (Tex. App.—Austin

2004, no pet.); see also Subaru, 84 S.W.3d at 221 (exclusive jurisdiction where statute gives agency

“sole authority to make an initial determination in a dispute”). Here, Mining has not asked the

                                                  7
district court to order the Board to return his security. See Tex. Occ. Code Ann. § 1704.210 (statute

governing the Board’s consideration of a request to withdraw security). Rather, his declaratory

action asked the court to determine whether the Board acted within its statutory authority in licensing

Mining, and if not, what the effect of the Board’s unauthorized action would have on the bonds he

issued and the deed of trust held by the Board. The doctrine of exclusive jurisdiction does not

require a party to first obtain a ruling from an agency on whether that agency’s own actions exceeded

its statutory authority before filing an action under the declaratory judgment act. See Houston Mun.

Employees Pension Sys. v. Ferrell, 177 S.W.3d 502, 516 (Tex. App.—Houston [1st Dist.] 2005, pet.

filed) (declaratory judgment action seeking interpretation of statute and determination of rights under

statute not precluded by exclusive jurisdiction); Bexar Metro. Water Dist. v. City of Bulverde, 156

S.W.3d 79, 90 (Tex. App.—Austin 2004, pet. denied) (exclusive jurisdiction did not preclude action

seeking declaration that water district acted outside of its statutory authority); Williams v. Houston

Fireman’s Relief & Ret. Fund, 121 S.W.3d 415, 429 (Tex. App.—Houston [1st Dist.] 2003, no pet.)

(“Courts generally do not interfere in an administrative agency’s duties and functions, but they will

intervene and give declaratory relief when the agency exercises authority beyond its statutorily

conferred powers.”); cf Julliff Gardens, 131 S.W.3d at 279 (exclusive jurisdiction does not apply to

challenge to constitutionality of statute governing agency function). Because Mining’s request for

declaratory relief depends on a construction of the Board’s statutory authority, the doctrine of

exclusive jurisdiction would not apply to deprive the district court of jurisdiction. See Ferrell, 177

S.W.3d at 516; Bexar Metro.,156 S.W.3d at 90; Williams, 121 S.W.3d at 429. The district court has




                                                  8
jurisdiction to consider Mining’s request for declaratory relief. Accordingly, the district court erred

by granting the Board’s plea to the jurisdiction on the grounds of exclusive jurisdiction.


    Indispensable Party

               The Board also contends that its plea to the jurisdiction was properly granted because

Hays County, an indispensable party, was not named in Mining’s declaratory judgment action. The

declaratory judgment act requires the joinder of parties who have an interest in the outcome:


       When declaratory relief is sought, all persons who have or claim any interest that
       would be affected by the declaration must be made parties. A declaration does not
       prejudice the rights of a person not a party to the proceeding.


Tex. Civ. Prac. & Rem. Code Ann. § 37.006(a) (West 1997). Citing a fifty-year-old opinion of the

supreme court, the Board argues that Mining’s failure to join Hays County to his lawsuit deprived

the district court of subject matter jurisdiction. See Scott v. Graham, 292 S.W.2d 324, 327 (Tex.

1956) (“Petitioner having failed to name the county a party, his suit is subject to dismissal at any

time.”). However, the supreme court has more recently held that subject matter jurisdiction is rarely

implicated by the failure to join a party required under section 37.006(a) of the declaratory judgment

act or rule of civil procedure 39. See Brooks v. Northglen Ass’n, 141 S.W.3d 158, 162 (Tex. 2004)

(question is not “whether jurisdiction is lacking” but whether “trial court should have refused” to

enter judgment); Cooper v. Texas Gulf Indus., Inc., 513 S.W.2d 200, 204 (Tex. 1974) (“Under the

provisions of our present Rule 39 it would be rare indeed if there were a person whose presence was

so indispensable in the sense that his absence deprives the court of jurisdiction to adjudicate between

the parties already joined.”). Although Hays County clearly has a substantial interest in the outcome

                                                  9
of Mining’s dispute with the Board, its absence does not preclude the district court from rendering

complete relief between Mining and the Board. See Brooks, 141 S.W.3d at 162. We hold that

Mining’s failure to name Hays County as a defendant in his lawsuit is not one of the rare

circumstances in which the absence of a party deprives the district court of jurisdiction. See Brooks,

141 S.W.3d at 163; Cooper, 513 S.W.2d at 204.

               The district court erred by finding that the Board’s exclusive jurisdiction and Hays

County’s absence from Mining’s suit deprived the district court of subject matter jurisdiction.

Accordingly, we sustain in part Mining’s second issue.


                                          CONCLUSION

               We affirm the district court’s order denying Mining’s motion to recuse Judge Robison

and its dismissal of Mining’s claims for monetary damages. Because the district court erred in

granting the Board’s plea to the jurisdiction regarding Mining’s claims for declaratory and injunctive

relief, we reverse that part of the judgment and remand for further proceedings.




                                               Bea Ann Smith, Justice

Before Justices B. A. Smith, Patterson and Puryear

Affirmed in Part; Reversed and Remanded in Part

Filed: April 14, 2006




                                                 10
