                                 Fourth Court of Appeals
                                         San Antonio, Texas

                                                  OPINION
                                             No. 04-19-00376-CR

           IN RE STATE OF TEXAS, ex. rel. Todd “Tadeo” Durden, County Attorney

                                      Original Mandamus Proceeding 1

Opinion by:      Rebeca C. Martinez, Justice
Opinion by:
Sitting:         Rebeca C. Martinez, Justice
                 Patricia O. Alvarez, Justice
                 Liza A. Rodriguez, Justice

Delivered and Filed: July 24, 2019

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED IN PART, DENIED
IN PART, AND DISMISSED AS MOOT IN PART

        Relator filed a petition for writ of mandamus in which it raised two complaints. First,

relator asserts the Honorable Enrique Fernandez abused his discretion by denying an indigent

criminal defendant’s motion to withdraw from the court registry all of the fines and court costs she

paid after the criminal charges against her had been dismissed. Relator contends the trial court

allowed defendant Maria Villarreal Cervantez to withdraw only $500.00 of the total $897.00 she

paid. Second, relator asserts the Honorable James T. Shahan abuses his discretion by imposing

fines and court costs on criminal defendants prior to conducting a hearing on whether to accept a

plea bargain and formally pronouncing sentence. As to this second complaint, relator asserts that



1
  This proceeding arises out of Cause Nos. 10005CR, et al., styled The State of Texas v. Maria Villarreal Cervantez,
et al., pending in the County Court, Kinney County, Texas. The Honorable James T. Shahan and the Honorable
Enrique Fernandez are the respondents.
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under a so-called “Pay-to-Plea” policy, a criminal defendant is permitted to enter a plea and begin

the terms of community supervision only after the defendant has paid all fines and court costs.

                                REFUND OF FINES AND COURT COSTS

           Maria Villarreal Cervantez paid $397.00 in court costs and $500.00 towards a fine. When

the charges against her were later dismissed, Ms. Cervantez’s attorney filed a motion to withdraw

the total amount of $897.00 on deposit in the court’s registry. On January 24, 2019, Judge

Fernandez signed an “Order to Release” only $500.00 to Ms. Cervantez. In its petition for writ of

mandamus, relator asked this court to direct Judge Fernandez to issue “such orders as are necessary

to reverse the payment of court costs made pursuant to his January 24, 2019 order, so as to return

and restore unto Maria [Villareal Cervantez] the remainder of the money deposited by her with the

District and County Clerk in its entirety.”

           Judge Fernandez filed a response to the petition in which he explained the circumstances

under which he ruled to refund amounts deposited by Ms. Cervantez less court costs. 2 Judge

Fernandez stated in his response that he would rescind his January 24, 2019 “Order to Release

Funds” and enter an order directing that Ms. Cervantez be refunded all funds on deposit in her

underlying cause. Alternatively, because Judge Fernandez is concerned he may lack jurisdiction

over the cause, Judge Fernandez stated he “would not oppose an order of mandamus . . . directing

him to enter such an order.” Accordingly, on this issue, we conditionally grant the petition for

writ of mandamus.

                                           PAY-TO-PLEA POLICY

           Relator next complains that, under the so-called “Pay-to-Plea” policy, a criminal defendant

is allowed to enter a plea and begin community supervision only after the defendant has fully paid



2
    Ms. Cervantez filed a response in which she joined in and adopted the arguments made by relator.

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any fines and courts costs. Relator asks this court to issue a writ of mandamus “(i) directing Judge

Shahan to vacate his letter ruling of September 28, 2018, 3 requiring the District and County Clerk

to maintain possession of the Pay to Plea funds; [and] (ii) directing Judge Shahan to make and

issue such orders as are necessary to reverse, return and restore all pre-payments of fines, fees and

court costs to the parties in the associated cases . . . .”

        Real party in interest, Kinney County, filed a motion to dismiss on several grounds, one of

which is that relator’s complaint about the alleged “Pay-to-Plea” policy is now moot based on

Judge Shahan’s June 18, 2019 “Sua Sponte Findings and Order Regarding Funds Deposited Prior

to Plea” (the “June 18 Order”). In the June 18 Order, Judge Shahan concedes “it is inappropriate

under applicable law for the Clerk of this Court to receive, receipt or hold [fees, fines and costs]

[and the trial court] is of the opinion that fees, fines and costs may only be collected after entry of

a conviction of criminal charges asserted against an individual.” Judge Shahan then ordered the

court Clerk and/or the Kinney County Treasurer to take certain specific steps to return the

deposited funds to affected defendants.

        After receipt of Kinney County’s motion to dismiss, relator filed a response in which it

raised several new arguments. First, relator asked this court to direct Judge Fernandez to “make

and issue such orders and local rules of administration as are necessary to reverse the payment of

court costs . . . made after the issuance of his Order of January 24, 2019; eliminate the ‘Pay-to-

Plea’ policies in their entirety; and return the pre-payments of fines, fees and court costs wrongfully

made or taken under the ‘Pay-to-Plea’ policy.” The only order signed by Judge Fernandez at issue




3
  In an email from Todd A. Durden, the Kinney County Attorney, to Judge Shahan and Isela Ramon, the Kinney
County Clerk, Mr. Durden asked Ms. Ramon to “refund all monies you have received from misdemeanor defendants
who have not plead guilty.” On that same date, Judge Shahan replied, “I am asking Ms. Ramon to not refund these
funds with this letter.” This email from Judge Shahan is the September 28, 2018 “letter ruling” about which relator
complains.

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in this original proceeding is the January 24, 2019 “Order to Release Funds,” which, as explained

above, Judge Fernandez has stated he does not oppose vacating.

         As to the so-called “Pay-to-Plea” policy, relator asked this court to vacate the June 18 Order

on the grounds that it is void for a variety of reasons that have no merit.4 Relator also complains

the June 18 Order does not address a determination of all persons to whom monies are owed or

who have funds on deposit, the reversal of court costs charged upon dismissal, refunds if the funds

are no longer on deposit with the Clerk, and reconciliation of new records created with an audited

financial report. We decline relator’s request to compel Judge Shahan or any other judge in Kinney

County to develop new policies or local rules of administration. See In re Mahindra, USA Inc.,

549 S.W.3d 541, 545 (Tex. 2018) (orig. proceeding) (writ of mandamus is an appropriate remedy

to correct the court’s abuse of discretion). To the extent the directions to the Clerk and Kinney

County Treasurer contained in the June 18 Order are inadequate to address the return of all funds

that Judge Shahan concedes are “inappropriate under applicable law,” we are confident Judge

Shahan will take all necessary steps to identify any person who paid the fines and court costs in

violation of applicable laws and return those funds.

         Finally, we disagree with relator’s argument that the question of mootness should be

decided by Judge Fernandez upon remand. Relator complains about a specific policy, which has

now been eliminated. We are confident that any policy requiring a defendant to fully pay any fines

and courts costs before being allowed to enter a plea and begin community supervision is no longer

in practice in Kinney County. See Heckman v. Williamson County, 369 S.W.3d 137, 167 (Tex.




4
 Relator contends the June 18 Order contains “prejudicial findings of fact affecting the substantive rights of parties”
and contains “admissions of guilt.” The order makes no specific findings as to any specifically named defendant, nor
does it contain any admission of guilt by any specifically identified defendant. Without further elaboration, relator
makes the conclusory statement that Judge Shahan “is a witness to the facts he sets forth in the ‘findings of fact.’”

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2012) (plaintiff’s challenge to a statute or written policy may become moot if the statute or policy

is repealed or fundamentally altered).

       After reviewing the record, we agree that Judge Shahan’s “Sua Sponte Findings and Order

Regarding Funds Deposited Prior to Plea” moots the complaints about the so-called “Pay-to-Plea”

policy raised in the petition for writ of mandamus. See Nat’l Collegiate Athletic Ass’n v. Jones, 1

S.W.3d 83, 86 (Tex. 1999) (“Appellate courts are prohibited from deciding moot controversies

. . . . A case becomes moot if at any stage there ceases to be an actual controversy between the

parties.” (internal citations omitted)); Holcombe v. Fowler, 118 Tex. 42, 9 S.W.2d 1028, 1028

(1928) (orig. proceeding) (“The rule is an elementary one that a writ of mandamus will not issue

if for any reason it would be useless or unavailing.”); see also In re Resendez, 04-19-00100-CR,

2019 WL 1779846, at *1 (Tex. App.—San Antonio Apr. 24, 2019, orig. proceeding) (per curiam)

(mem. op.) (not designated for publication) (denying petition because trial court ruled on relator’s

motion during pendency of mandamus).

                                         CONCLUSION

       We conditionally grant relator’s petition in part and direct Judge Fernandez to (1) vacate

his January 24, 2019 “Order to Release Funds” and (2) enter an order releasing the remainder of

the $897.00 ($397.00) to Maria Villarreal Cervantez. The writ will issue only in the event we are

notified Judge Fernandez fails to comply within fifteen days from the date of this opinion. We

dismiss relator’s petition as moot in so far as relator requests any relief related to the so-called

“Pay-to-Plea” policy. Finally, relator also asked this court to disqualify Judge Shahan from

presiding over criminal cases. Because the recusal or disqualification of Judge Shahan is the




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subject of another pending original proceeding filed by relator, we deny this request for relief in

this original proceeding. All other relief requested by any party is denied.

                                                      Rebeca C. Martinez, Justice

Publish




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