Victor J. Burgess, D/B/A Eydie's Bail Bonds, and the Local Agent for Seneca Insurance Co., Inc. v. State

Citation: Not availableDocket: 02-09-00239-CV

Court: Court of Appeals of Texas; May 13, 2010; Texas; State Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

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Victor J. Burgess, operating as Eydie’s Bail Bonds and representing Seneca Insurance Co. Inc., appeals a bond forfeiture judgment from the Denton County District Court, contesting the legality of court costs assessed for service of citation by certified mail. The background involves John G. Smith, who failed to appear in court for a controlled substance charge, leading to a judgment nisi that forfeited his $5,000 bond, which Burgess had guaranteed. The Denton County District Clerk notified Smith via first-class mail and Burgess via certified mail. 

Burgess acknowledged his liability for the bond forfeiture but challenged the State's claim for court costs associated with the certified mail service. The State argued that the trial court lacked authority to assess these costs, asserting that such determinations require proper parties to be involved in court. The trial court ultimately awarded the State all assessed court costs, including $68 for the certified mail citation, and implied it granted the State’s summary judgment motion without explicitly referencing the summary judgment documents. 

Subsequent to the final judgment, the trial court attempted to rescind its decision, but this occurred after its plenary power to do so had lapsed. Burgess requested findings of fact and conclusions of law, which were never provided. The State then moved to dismiss the appeal, questioning Burgess's standing, asserting he may not be the actual surety liable for the judgment and lacked authority to appeal as an agent of Seneca Insurance Co. Inc.

A party's standing can be introduced for the first time during an appeal, requiring a plaintiff to demonstrate a justiciable interest in the litigation's subject matter. Standing, a part of subject matter jurisdiction, necessitates a personal stake in the case and a demonstrated concrete injury. Burgess's affidavit states he entered a contractual indemnity agreement with Seneca, designating him as "Agent/Indemnitor," which obligates him to indemnify Seneca for any financial loss resulting from bail bond forfeitures he executed. Failure to fulfill this obligation could lead to losing Seneca's support and his license to write bail bonds in Denton County, Texas. The court may consider documents outside the trial court's record solely to determine its jurisdiction and the State's motion to dismiss. The trial court's judgment holds Burgess responsible for the debt owed.

The court concludes that the documents presented establish Burgess's general liability for bond forfeiture judgments and his specific liability for the current judgment, confirming his standing in the appeal. In response to the State's claim that Burgess lacks authority to appeal on behalf of Seneca, a "POWER OF ATTORNEY" document names him as an "Executing Agent," granting him authority to act on behalf of Seneca. Additionally, a "QUALIFYING POWER OF ATTORNEY" outlines similar powers. Although the State contends these documents do not explicitly grant Burgess the right to defend or appeal a bond forfeiture action, Burgess asserts in his affidavit that he is authorized to retain counsel for litigation and appeals related to forfeiture actions. Furthermore, a letter from Seneca's COO confirms his authorization to employ legal representation for outstanding forfeitures.

Burgess has established his authority to appeal on behalf of Seneca Insurance Co. Inc., defeating the State's motion to dismiss. The court affirms Burgess's standing to maintain the appeal. Summary judgment is reviewed de novo, favoring the nonmovant by crediting reasonable evidence and inferring doubts in their favor. A plaintiff is entitled to summary judgment if they conclusively prove all essential elements of their claim.

Burgess argues that the $68 fee charged by the district clerk for service by certified mail is unlawful due to a lack of authorization from the Denton County Commissioners Court. The relevant government code mandates that district clerks collect fees for serving process by certified mail, aligned with sheriff and constable fees as determined by the commissioners court. The court clarified that the commissioners court has set a $60 fee for various types of citations, including “Citation by Publication” and others, but not specifically for “Citation by Certified Mail.” However, since the rules of civil procedure classify certified mailing as a primary method of service for citations, the court concluded that the $60 fee for service of “citation” applies to certified mail as well. Therefore, the court overrules Burgess’s contention regarding the fee and confirms that the commissioners court’s authorization for a $60 fee includes certified mail services. Additionally, the court notes that the district clerk's charge of $68 is not supported by the commissioners court's order, which only allows for a $60 fee, undermining Burgess’s claim.

Section 51.317(b)(3) of the government code mandates that a district clerk collect an $8 fee for issuing a citation, which justifies the collection of this fee in the case at hand, where two citations were issued (for Burgess and Smith). The clerk's bill includes these two $8 fees along with a $68 fee for "CITATION BY CERTIFIED MAIL." Although Burgess argues that the record does not explicitly link the $8 fees to this statute, he does not dispute their authorization under it. Consequently, the trial court's inclusion of these fees in the total of $251 for costs of suit is deemed proper. 

In addressing Burgess's claims regarding the $68 fee for service of citation by certified mail, which he argues is unreasonable and exceeds necessary expenses, the State posits that the case is not appropriate for challenging the validity of the fee authorized by the Denton County Commissioners Court. To validate Burgess's position, it would necessitate invalidating the commissioners court's fee schedule without proper parties to the suit and in a case not aimed at contesting the court's order. Courts, including the one reviewing this matter, have consistently ruled that unless a commissioners court’s order is entirely void, it cannot be challenged through collateral attack. Citing precedent, challenges to the commissioners court's orders must be made directly or through appeal, rather than indirectly in unrelated cases.

A supreme court ruling established that orders from a commissioners court are generally protected from collateral attacks unless deemed 'wholly void' or an 'absolute nullity.' Minor deviations from prescribed methods do not render such orders void. Moreover, recent interpretations suggest that an order deemed arbitrary, capricious, or lacking substantial evidence is voidable, with the standard for direct attacks focusing on potential abuse of discretion by the commissioners court. Burgess's claims in his second and third issues assert that the Denton County Commissioners Court misapplied its authority under section 118.131 but do not challenge the court's jurisdiction, the fulfillment of conditions precedent, or the constitutionality of the sheriff/constable fee setting. Consequently, Burgess's challenge does not qualify as an assertion that the order is void and must be pursued in a separate action rather than through collateral attack in the bond forfeiture proceeding. The trial court’s judgment is affirmed, with the ruling delivered by Chief Justice Terrie Livingston and Justices Dauphinot and McCoy on May 13, 2010.