Opinion issued May 2, 2013




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-12-00214-CV
                           ———————————
 FELIX MICHAEL KUBOSH D/B/A KUBOSH BAIL BONDING, ET AL.,
                     APPELLANTS
                                       V.
HARRIS COUNTY AND CHRIS DANIEL, IN HIS OFFICIAL CAPACITY
    AS DISTRICT CLERK OF HARRIS COUNTY, APPELLEES


                   On Appeal from the 190th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2011-56598

                                 OPINION

      Forty-one Harris County bail bondsmen (collectively identified through their

lead plaintiff, Felix Kubosh) sued Harris County and the Harris County District

Clerk, Chris Daniel, alleging that Harris County improperly has assessed civil
court filing fees in criminal bond-forfeiture cases. In his suit, Kubosh seeks (1) a

declaratory judgment that civil court filing fees must not be charged in bond

forfeiture cases; (2) an injunction to prevent the continued assessment of the fees;

and (3) the refund of fees the bondsmen have paid. The County responded with a

plea to the jurisdiction and a motion for summary judgment. The trial court granted

the plea and dismissed the case. On appeal, Kubosh contends that (1) governmental

immunity does not bar his action seeking a refund, because the county’s fee

assessments were illegal; and (2) the trial court in any event has jurisdiction over

his claims for declaratory and injunctive relief.

       We conclude that governmental immunity bars Kubosh from seeking a

refund. We further conclude that the trial court lacks subject matter jurisdiction to

hear Kubosh’s claims for declaratory and injunctive relief, because these

complaints arise in connection with criminal cases and should be brought in

criminal court in the first instance. We therefore affirm the order of the trial court

dismissing the case for lack of jurisdiction.

                                    Background

      When a criminal defendant fails to appear in court, the state institutes a

bond-forfeiture proceeding under the rules of criminal procedure. See TEX. CODE

CRIM. PROC. ANN. art. 22.01; see generally TEX. CODE CRIM. PROC. ANN. ch. 22

(governing forfeiture of bail). Bond forfeiture actions are brought in criminal court.


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See, e.g., Safety Nat’l Cas. Corp. v. State, 273 S.W.3d 157, 163 (Tex. Crim. App.

2008). Typically, a bond forfeiture judgment includes the court costs necessarily

incurred to establish the forfeiture. See id. at 164. The district clerk charges these

costs in a bill of costs. Bail bondsmen often ultimately discharge these court costs,

as the bail sureties of the bail bonds.

        For a number of years, Harris County did not assess filing fees as court costs

in bail bond forfeiture cases. About a month before Kubosh filed this suit,

however, the district clerk began to charge a filing fee in bond forfeiture cases. The

clerk assesses the fee in a bill of costs in connection with any eventual bond

forfeiture judgment.

        If a bail bondsman fails to discharge the fees assessed in a bond forfeiture

judgment, then the bondsman may not post bail in Harris County until the

judgment is satisfied. TEX. OCC. CODE ANN. § 1704.2535 (West 2012). Kubosh,

one of the aggrieved bail bondsmen who are parties to this appeal, has paid

assessed fees in criminal bond-forfeiture proceedings. He and the other bondsmen

have filed this suit in civil district court to protest their assessment.

                                       Discussion

   I.      Standard of Review

        We review the trial court’s ruling on a plea to the jurisdiction de novo if, as

here, the jurisdictional facts are undisputed. State v. Holland, 221 S.W.3d 639, 642


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(Tex. 2007) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

225–26 (Tex. 2004)). The plaintiff must allege facts that affirmatively establish the

trial court’s subject matter jurisdiction. Id.; City of Pasadena v. Kuhn, 260 S.W.3d

93, 95 (Tex. App.—Houston [1st Dist.] 2008, no pet.). In determining whether the

plaintiff has satisfied this burden, we construe the pleadings liberally in the

plaintiff’s favor and deny the plea if the plaintiff has alleged facts affirmatively

demonstrating jurisdiction to hear the case. Miranda, 133 S.W.3d at 226–27; Smith

v. Galveston Cnty., 326 S.W.3d 695, 697–98 (Tex. App.—Houston [1st Dist.]

2010, no pet.).

         Subject matter jurisdiction is essential for a court to have authority to decide

a case; it is never presumed and cannot be waived. Alfonso v. Skadden, 251 S.W.3d

52, 55 (Tex. 2008) (per curiam) (holding subject matter jurisdiction cannot be

waived and can be raised at any time); Tex. Ass’n of Bus. v. Tex. Air Control Bd.,

852 S.W.2d 440, 443–44 (Tex.1993).

   II.      Refunds

         Governmental immunity protects political subdivisions of the state from

lawsuits for money damages unless immunity has been waived. Reata Constr.

Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). But claims for a refund

are different than claims for money damages—due process requires that persons

who have paid illegal or invalid taxes or fees under duress have some recourse to


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recover the fees. Dallas Cnty. Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 882 n.

9 (Tex. 2005). Accordingly, a party who pays an illegal or invalid fee to a

governmental unit under duress may seek a refund regardless of whether immunity

has been waived. Id. at 877; Nivens v. City of League City, 245 S.W.3d 470, 474

(Tex. App.—Houston [1st Dist.] 2007, pet. denied); Austin Nat’l Bank v.

Sheppard, 71 S.W.2d 242, 246 (Tex. 1934). The proceeding need not be one

confined to civil district court; the legislature may provide a specific procedure to

challenge fees or taxes that will supplant this remedy. BMG Direct Mktg., Inc. v.

Peake, 178 S.W.3d 763, 769–71 (Tex. 2005) (noting that “other legal and statutory

remedies have evolved over time to supplant the rule’s application in many of

these contexts.”); Bolton, 185 S.W.3d at 879 (noting refund mechanisms and

protest requirements when challenging taxes that have supplanted the common-law

requirements for voluntary payment and duress in some cases). If a process exists

to contest a fee, then a person who nonetheless pays it cannot later claim to have

paid the fee under duress. See Bolton, 185 S.W.3d at 881; In re Nestle USA, Inc.,

359 S.W.3d 207, 210 (Tex. 2012).

      Such a process exists in criminal bond-forfeiture cases. Kubosh may

challenge costs assessed in a bond forfeiture judgment through a motion to correct

or retax costs in the criminal court hearing the request that it hold the bond forfeit,

and through a direct appeal from the judgment assessing the fee as a court cost. See


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TEX. CODE CRIM. PROC. ANN. arts. 103.008 & 44.42 (West 2006) (providing for

motion to correct court costs and for appeal of bond-forfeiture judgment). These

statutes provide a procedure to challenge the costs via judicial review in the

criminal court in which the fees have been assessed, thus satisfying due process.

See Bolton, 185 S.W.3d at 880. Because bondsmen have an adequate opportunity

to challenge the costs assessed, we reject the claim that they discharged the fees

under duress. See id.

      Kubosh directs us to several cases holding that bail bond fees were paid

under duress when failure to pay the fees would result, as here, in the inability of

the bail bondsmen to post bail in subsequent cases. See, e.g., Camacho v.

Samaniego, 954 S.W.2d 811, 826–27 (Tex. App.—El Paso 1997, writ denied);

Vannerson v. Klevenhagen, 908 S.W.2d 37, 41 (Tex. App.—Houston [1st Dist.]

1995, writ denied); Bowles v. Reed, 913 S.W.2d 652, 657 (Tex. App.—Waco 1995,

writ denied); Kubosh v. City of Houston, 2 S.W.3d 463, 469–470 (Tex. App.—

Houston [1st Dist.] 1999, pet. denied) (Kubosh I). In those cases, however,

authorities collected the fees outside of a judicial proceeding—immediate fee

payment was required to post the bond. See, e.g., Camacho, 954 S.W.2d at 826

(fee paid by bondsmen to sheriff as prerequisite to post bond); Vannerson, 908

S.W.2d at 41 (same); Bowles, 913 S.W.2d at 657 (processing and bond approval

fees paid to the sheriff to post bond). In Kubosh I, for example, because any


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defendant charged with a crime was assessed a fee, no judgment existed from

which to appeal for those defendants who were not convicted. 2 S.W.3d at 469–

470. The defendants paid the fees under duress because no recourse existed to

challenge their assessment. See id. In contrast, the fees in this case were assessed

as court costs in judicial proceedings—ones that culminated in bond-forfeiture

judgments. Because the legislature has provided a means to challenge their

assessment as a part of the judicial proceeding, the bondsmen have not established

the sort of duress required for a waiver of immunity.

      Kubosh relies on Burgess v. State (Burgess I), a criminal case, to argue that

bond-forfeiture proceedings are not the proper vehicle to challenge court costs

assessed therein. 313 S.W.3d 844, 847 (Tex. App.—Fort Worth 2010, no pet.).

Burgess I reviewed the assessment of two items of costs and held that one was

authorized by the Government Code and the other was authorized by a county

commissioner’s court order. Id. at 853–54. The court declined to review whether

the county commissioner’s court order was valid, holding that the order could only

be challenged through a civil action. Id. Kubosh challenges the district clerk’s

application of a statute to specific assessments in criminal proceedings, more like

the challenges permitted in Burgess I, and unlike a challenge to the validity of an

order of a commissioner’s court. Id. at 851.




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      We hold that Kubosh has not established a waiver of governmental

immunity for his refund claim, because the fees in this case were not paid under

duress for lack of a judicial process to challenge them. The trial court thus

correctly granted the jurisdictional plea as to the claim for monetary relief.

   III.   Declaratory and Injunctive Relief

      Courts exercising criminal jurisdiction ordinarily determine the meaning and

validity of a criminal statute. State v. Morales, 869 S.W.2d 941, 944 (Tex. 1994)

(explaining “narrow circumstances under which an equity court can construe a

criminal statute”); Tex. Liquor Control Bd. v. Canyon Creek Land Corp., 456

S.W.2d 891, 894 (Tex. 1970). A party cannot seek to enjoin enforcement of a

criminal statute in a civil proceeding unless it challenges the constitutionality of

the provision and proves an irreparable injury to its vested property rights. Tex.

Educ. Agency v. Leeper, 893 S.W.2d 432, 441 (Tex. 1994); Morales, 869 S.W.2d

at 945. If questions regarding criminal statutes can be resolved in a criminal

proceeding, a trial court should not assert civil jurisdiction to answer them. See

Morales, 869 S.W.2d at 945 (citing Passel v. Fort Worth Indep. Sch. Dist., 440

S.W.2d 61, 63 (Tex. 1969)). The limits on a district court’s civil jurisdiction to

construe or enjoin enforcement of a criminal statute apply to suits seeking

declaratory or injunctive relief. Morales, 869 S.W.2d at 947.




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      The restriction on a civil court’s jurisdiction to construe or enjoin the

enforcement of criminal statutes is similar to the Texas Supreme Court’s related

jurisdictional limit to all but “criminal law matters.” See Heckman v. Williamson

Cnty., 369 S.W.3d 137, 149 (Tex. 2012) (explaining that dispute seeking to enjoin

or construe criminal statute “was no doubt itself a ‘criminal law matter’ beyond

[the Texas Supreme Court’s] appellate jurisdiction”). “Disputes which arise over

the enforcement of statutes governed by the Texas Code of Criminal Procedure,

and which arise as a result of or incident to a criminal prosecution, are criminal law

matters.” Harrell v. State, 286 S.W.3d 315, 318 (Tex. 2009) (quoting Curry v.

Wilson, 853 S.W.2d 40, 43 (Tex. Crim. App. 1993)).

      The policy favoring construction of criminal statutes in criminal proceedings

is, in part, based on pragmatic concerns resulting from the separate and distinct

jurisdiction allocated by the Texas Constitution to civil and criminal courts.

Morales, 869 S.W.2d at 947. Permitting civil and criminal proceedings regarding

construction of a criminal statute could “create confusion . . . and might result

finally in precise contradiction of opinions between the [civil courts] and the Court

of Criminal Appeals to which the Constitution has intrusted supreme and exclusive

jurisdiction in criminal matters.” Morales, 869 S.W.2d at 947–48 (quoting Roberts

v. Gossett, 88 S.W.2d 507, 509 (Tex. Civ. App.—Amarillo 1935, no writ)). We

look the statute’s consequences to determine if it is a criminal statute. Leeper, 893


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S.W.2d at 441–42 (holding statute that was criminal in nature was not criminal

statute because it had civil consequences unrelated to criminal prosecution).

      Kubosh seeks a declaration that Texas Code of Criminal Procedure article

22.10 does not permit a criminal trial court to assess civil filing fees in bond-

forfeiture cases, and an injunction preventing the district clerk from assessing these

fees as court costs. The district clerk assessed the challenged costs incident to the

prosecution of the criminal bond-forfeiture case, a criminal matter. See Harrell,

286 S.W.3d at 318. The resolution of this dispute turns on the construction of

Texas Code of Criminal Procedure article 22.10, a criminal statute. The statute has

consequences related to a criminal, not a civil, proceeding. See Leeper, 893 S.W.2d

at 441. Kubosh seeks to have a civil court construe what is a criminal statute, both

in expression and in operation.

      For the civil trial court to have jurisdiction over Kubosh’s claims for

declaratory and injunctive relief, Kubosh must challenge the constitutionality of

the statute and prove that his property rights are subject to irreparable harm.

Morales, 869 S.W.2d at 947. Kubosh challenges the district clerk’s construction of

a criminal statute, not its constitutionality. Because a criminal defendant can move

to correct or re-tax costs in the trial court or appeal their assessment, see TEX.

CODE CRIM. PROC. ANN. arts. 103.008 & 44.42, Kubosh has not shown harm to his

vested property rights, and thus, he does not present us with an irreparable injury.


                                         10
See Passel, 440 S.W.2d at 63. Accordingly, the civil trial court properly dismissed

the case because it lacked jurisdiction to hear Kubosh’s claims for declaratory and

injunctive relief.

      The construction in a court of civil jurisdiction of a statute defining the

procedures in criminal bond-forfeiture proceedings is incompatible with the

pragmatic justifications for limits on civil jurisdiction to address criminal statutes.

The Court of Criminal Appeals has developed an extensive body of case law

construing article 22.10 to determine which civil rules apply to bond-forfeiture

cases, including whether certain civil costs are chargeable. See e.g., Dees v. State,

865 S.W.2d 461, 462 (Tex. Crim. App. 1993) (en banc) (permitting assessment of

civil court costs in bond-forfeiture cases); Rodriguez v. Marquez, 4 S.W.3d 227,

228 (Tex. Crim. App. 1999) (en banc) (holding that civil removal statute in

Government Code does not apply to bond-forfeiture proceedings because they are

criminal in nature); State v. Sellers, 790 S.W.2d 316, 321 (Tex. Crim. App. 1990)

(en banc) (refusing to apply civil rule governing right to appeal in bond-forfeiture

appeal); Alvarez v. State, 861 S.W.2d 878, 881 (Tex. Crim. App. 1992) (en banc)

(applying civil summary judgment standard in bond-forfeiture proceeding on

appeal). In Safety National Casualty Corporation v. State, the Court of Criminal

Appeals interpreted an analogous statute, article 44.44, to determine that civil

appellate filing fees could not be charged in bond-forfeiture cases. 305 S.W.3d


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586, 587 (Tex. Crim. App. 2010). Because the questions presented here potentially

could be reviewed in any criminal bond-forfeiture proceeding, if properly raised,

any decision of the Texas Supreme Court or court exercising civil jurisdiction

construing this statute could create a potential conflict. See Morales, 869 S.W.2d at

948 n.16 (“it is the prospect that civil courts will get into the business of construing

criminal statutes which represents the real danger.”).

                                     Conclusion

      We hold that governmental immunity bars the bondsmen’s refund claims.

We further hold that the civil trial court lacked subject matter jurisdiction to hear

their claims for injunctive and declaratory relief. We therefore affirm the trial

court’s order granting the plea to the jurisdiction and dismissing the bondsmen’s

claims.




                                               Jane Bland
                                               Justice

Panel consists of Justices Jennings, Bland, and Massengale.




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