                                                                                                ACCEPTED
                                                                                            03-15-00300-CV
                                                                                                    5379496
                                                                                 THIRD COURT OF APPEALS
                                                                                            AUSTIN, TEXAS
                                                                                       5/21/2015 1:24:54 PM
                                                                                          JEFFREY D. KYLE
                                                                                                     CLERK
                               No. 03-15-00300-CV

                                                                      FILED IN
                       IN THE COURT OF APPEALS     3rd COURT OF APPEALS
                    FOR THE THIRD JUDICIAL DISTRICT AUSTIN, TEXAS
                                                   5/21/2015 1:24:54 PM
                             AUSTIN, TEXAS
                                                                  JEFFREY D. KYLE
                                                                       Clerk

                 TEXAS DEPARTMENT OF PUBLIC SAFETY,
                                                                   APPELLANT
                                         V.

                               ANISTY MIRASOL,
                                                                    APPELLEE


                             No. D-1-GN-14-001479
                              201ST Judicial District
         Appealing the Interlocutory Order from the 345th Judicial District
                               Travis County, Texas


APPELLANT’S MOTION TO EXEMPT IT FROM PAYING FILING FEES
                 AND APPELLATE COSTS


TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      NOW COMES Appellant Texas Department of Public Safety (“DPS”) and

files its Motion to Exempt it from Paying Filing Fees and Appellate Costs, including

electronic fees, and shows the court as follows:

                                      I.
                                 BACKGROUND

      On May 14, 2015, Appellant DPS filed its Notice of Appeal of Interlocutory

Order with the Travis County District Clerk’s Office pursuant to TEX. R. APP. P.


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25.1(a) (An appeal is perfected when a written notice of appeal is filed with the trial

court clerk.) The district clerk then sent a copy of the Notice of Appeal to the Court

of Appeals.

      On May 15, 2015, Appellant received a letter from the Clerk of the Court of

Appeals advising that it was requesting payment of a “$195.00 filing fee.” See letter

on file with the court.

      On May 19, 2015, the Travis County district clerk informed Appellant by

telephone that it agreed with Appellant that it was exempt from having to pay for the

Clerk’s Record. The Clerk’s Record would be sent to the Court of Appeals without

Appellant paying for the record. The Clerk’s Record contains a copy of the

Appellant’s Notice of Appeal.

      On May 20, 2015, Appellant’s counsel conferred by telephone with Jeffrey

Kyle, the Clerk of the Court of Appeals, regarding the Clerk’s letter. The Clerk stated

that Appellant DPS is to efile another copy of its Notice of Appeal and pay the

$195.00 fee via the efiling. Appellant explained that it is not required to file the

Notice of Appeal with the Court of Appeals and that it properly filed it with the

district clerk’s office. Even if the Court of Appeals required a copy, the District Clerk

has already sent a copy to the Court of Appeals and another copy is contained in the

Clerk’s Record.




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      Appellant also explained the statutory exemption of government units, such

as DPS, from the payment of court fees pursuant to TEX. CIV. PRAC. & REM. CODE

§6.001 (West 2002). The Clerk advised that Appellant could file a motion for the

consideration of the Justices regarding this matter.

                                      II.
                                  ARGUMENTS

      The Clerk of the Court of Appeals relies on TEX. R. APP. P. 5 as its authority

for requiring the payment of fees by a governmental unit such as Appellant DPS.

See Clerk’s letter. Rule 5 provides:

      A party who is not excused by statute or these rules from paying costs
      must pay—at the time an item is presented for filing—whatever fees
      are required by statute or Supreme Court order. The appellate court may
      enforce this rule by any order that is just.

TEX. R. APP. P. 5 (emphasis added). State governmental units such as DPS are

excused by statute from paying costs. It is TEX. CIV. PRAC. & REM. CODE § 6.001

(West 2002) and it provides in relevant part:

     § 6.001. State & Federal Agencies Exempt From Bond for Court Costs or
Appeal

      (a) A governmental entity or officer listed in Subsection (b) may not be
      required to file a bond for court costs incident to a suit filed by the entity or
      officer or for an appeal or writ of error taken out by the entity or officer and
      is not required to give a surety for the issuance of a bond to take out a writ of
      attachment, writ of sequestration, distress warrant, or writ of garnishment in a
      civil suit.

      (b) The following are exempt from the bond requirements:


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      (1) this state;
      (2) a department of this state;

TEX. CIV. PRAC. & REM. CODE § 6.001 (West 2002)(emphasis added).

      Moreover, the statutes regulating the fees for electronic filing provide: “(a) To

the extent of any conflict between the provisions of this chapter and another state

statute, the other statute prevails.” TEX. GOV. CODE § 101.001(West

2013)(emphasis added). Therefore, as between the statutes governing filing fees and

the exemption of payment of fees for State governmental units, TEX. CIV. PRAC. &

REM. CODE § 6.001 must prevail.

      Section 6.001 exempts the state from advance payment of filing fees and other

court costs for an appeal but does not exempt it from ultimately paying such costs

if costs are properly adjudged against it as a non-prevailing party and where no

statute exempts it from costs. Tex. Att’y Gen. Op. No. MW-447A (1982) and DM-

459 (1997)(emphasis added); see Rodeheaver v. Alridge, 601 S.W.2d 51, 54 (Tex.

App. Houston [1st Dist.] 1980, writ ref’d n.r.e.).

      Fees are “security for costs” for example, to cover the “costs of the clerk’s

services for the initial filing of the action, but also many other services which will

accrue during the processing of the suit. Thus, the statutory fee is, in effect, an

advance payment for the cost of services which have not been rendered at the time

the fee is collected.” Rodeheaver, 601 S.W.2d at 54.



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      The Tex. Att’y Gen. Op. No. MW-447A (1982) and again in DM-459 (1997)

both concluded that “the state is not required to pay filing fees for the filing of a

case, pay fees for service of citation, or give any other security for costs, including

any appellate costs…although the state will ultimately be liable for costs should it

be the losing party.” Tex. Att’y Gen. Op. No. DM-459 (1997)(emphasis added) and

referring to TEX. CIV. PRAC. & REM. CODE § 6.001 (West 2002).

      In Dallas County Bail Bond Board v. Mason, the court considered Section

6.001 as it applies to counties and held that the Board was exempt from filing an

appeal bond. Dallas County Bail Bond Board v. Mason, 773 S.W.2d 586, 587 (Tex.

App.—Dallas 1989, no pet.) relying on Dallas County Appraisal District v. Institute

for Aerobics Research, 751 S.W.2d 860 (Tex. 1988)(similar statute in Tex. Prop.

Code §42.28 exempts county and its agencies from filing appeal bonds). The

Supreme Court opined in Aerobics on the purpose of these types of exemption

statutes as follows:

      No purpose would be served by requiring an appraisal district to file
      appeal bonds. As a political subdivision, an appraisal district is funded
      by tax dollars, and no doubt exists concerning its ability to pay any cost
      that might legally be assessed against it....The undesirable state of
      having public funds tied up in litigation militates against such a holding.

Dallas County Appraisal District v. Institute for Aerobics Research, 751 S.W.2d

860, 862 (Tex. 1988); see also In re Bill Long, 984 S.W.2d 623, 626-27 (Tex.




                                          5
1999)(District Clerk not required to file supersedes bond pursuant to TEX. CIV. PRAC.

& REM. CODE § 6.001(b)(4)).

      Similarly, no purpose is served by requiring the State of Texas or its

departments to pay a bond, such as electronic fees and court fees, with public funds

when there is no doubt that the State has the ability to pay any costs that might legally

be assessed against it if it does not prevail in the appeal.

      For the above reasons, Appellant DPS moves this appeals court to exempt

Appellant, a governmental unit, from the payment of all filing fees and costs, if and

until, at the conclusion of the appeal such costs are properly assessed against DPS if

it is a non-prevailing party.

                                         Respectfully submitted,

                                         KEN PAXTON
                                         Attorney General of Texas

                                         CHARLES E. ROY
                                         First Assistant Attorney General

                                         JAMES E. DAVIS
                                         Deputy Attorney General for Civil Litigation

                                         KARA KENNEDY
                                         Division Chief, Tort Litigation

                                         /s/ Elsa Girón Nava
                                         _______________________________
                                         ELSA GIRÓN NAVA
                                         Assistant Attorney General
                                         State Bar No. 14826900
                                         Tort Litigation Division, Mail Stop 030
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                                       P.O. Box 12548, Capitol Station
                                       Austin, Texas 78711-2548
                                       (512) 463-2197 / (512) 457-4459, direct fax
                                       Elsa.Nava@texasattorneygeneral.gov
                                       ATTORNEY FOR APPELLANT DPS




                       CERTIFICATE OF CONFERENCE

      This motion is not decided on whether Appellee’s counsel agrees that this

Court of Appeals cannot require the state to pay the court’s filing fees. This motion

was rejected when efiled because it lacked a certificate of conference.

      Therefore, on May 21, 2015, I conferred with Appellee’s counsel regarding

this motion and he agrees with this motion.


                                       /s/ Elsa Girón Nava
                                       ____________________________
                                       ELSA GIRÓN NAVA
                                       Assistant Attorney General




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                  CERTIFICATE OF ELECTRONIC SERVICE
      I certify that on May 21, 2015, at approximately 1:30 p.m., I served a copy of

this document on the party/parties below by electronic service concurrently with the

electronic filing of the document. The electronic transmission was reported as

complete. My e-mail address is Elsa.Nava@texasattorneygeneral.gov

Paul Batrice                                 Via E-Service
Batrice Law Firm
1114 Lost Creek Blvd, Suite 440
Austin, TX 78746
(512) 600-1000
(512) 600-0217, fax
Paul@batricelawfirm.com
Attorney for Appellee

                                       /s/ Elsa Girón Nava
                                      ____________________________________
                                      ELSA GIRÓN NAVA
                                      Assistant Attorney General




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