Camacho v. Samaniego, 09-90-00294-CV

• Decision Date: 05 June 1991
• Docket Number: No. 09-90-00294-CV,09-90-00294-CV
• Citation: 825 S.W.2d 467
• Parties: Mary CAMACHO, et al., F.S. Timmons, et al., and Odia Harvey, Appellants, v. Leo SAMANIEGO, Individually and as in his capacity as Sheriff of El Paso County, and El Paso County, Texas, Appellees.
• Court: Texas Court of Appeals

Page 467

825 S.W.2d 467

Mary CAMACHO, et al., F.S. Timmons, et al., and Odia Harvey, Appellants, v. Leo SAMANIEGO, Individually and as in his capacity as

Sheriff of El Paso County, and El Paso County,

Texas, Appellees.

No. 09-90-00294-CV.

Court of Appeals of Texas,

El Paso.

June 5, 1991.

Rehearing Denied July 3, 1991.

Max Christenson, Odessa, Stewart W. Forbes, Susan Larsen, Steven L. Hughes, Mounce & Galatzan, James O. Darnell, Grambling Darnell, L.L.P., El Paso, for appellants.

Joe Lucas, Co. Atty., Eddie Martin, J. Monty Stevens, Dudley, Dudley and Windle, El Paso, for appellees.

Before FULLER, STEPHEN F. PRESLAR and WOODARD, JJ.

OPINION

STEPHEN F. PRESLAR, Justice.

This is an appeal from a summary judgment granted to the Appellees upon cross motions by both sides. We vacate the judgment and dismiss the cause of action on finding the statute involved is unconstitutional. Mary Camacho, individually and d/b/a Afuera Out Bail Bonds, initiated this suit for damages and injunctive relief stemming from Sheriff Samaniego's collection of a pre-conviction bail bond approval fee in all misdemeanor and felony cases at the time a surety bond is tendered for the arrestee's release. The bond amount has been set by order of the El Paso County Commissioners Court. In 1984, the fee was set at $2.00. In 1985, it was raised to $5.00, in 1987 to $10.00 and in 1988 to $18.00. Appellant Camacho sought certification for a class action, her proposed class to include bail bondsmen doing business in El Paso County and all clients of such bondsmen in whose cases the bond fee was paid. Class certification was denied. The other Appellant bondsmen were then joined or intervened as co-plaintiffs. Both sides filed motions for summary judgment. Appellants sought (and still seek by rendition) relief consisting of declaratory and injunctive relief from the bail bond approval fee order as unconstitutional and/or otherwise unlawful, restitution of all fees paid (with interest), and statutory damages of four times the fees collected, for extortion of an unlawful fee. Appellants' motions were denied; Appellees' were granted.

The major problem, fatal to this cause of action, appears to be a lack of subject matter jurisdiction in the trial court. This was raised below by the Appellees, but was overruled by the trial judge, with express finding in the judgment. It has not been urged on appeal, but must nonetheless be assessed by this Court, sua sponte, as a necessary underlying element of this Court's own jurisdiction.

Article V, § 8 of the Texas Constitution and Tex. Gov't Code Ann. § 24.020 (Vernon 1988) provide that the district court has "appellate jurisdiction and general supervisory control over the commissioners court...." The concurrent jurisdiction of district courts and county courts at law in El Paso County is governed by Tex. Gov't Code Ann. § 25.0732 (Vernon 1988 and Supp.1991). Subsection (b) of that statute provides for several exceptions to the concurrent jurisdiction--felony criminal cases, misdemeanors involving official misconduct and election contests. Prior to amendment in 1989, the list of exceptions included the district court appellate jurisdiction. Subsection (d) has consistently provided that the county courts at law do not hold concurrent jurisdiction with the district courts in exercising general supervisory control over the county commissioners court.

The 1989 amendments to Section 25.0732, which removed appeals from the exceptions list in subsection (b) and added the corrective provisions of subsection (t), were in response to this Court's opinion in El Paso City County Bail Bond Board v. McCarter, 705 S.W.2d 816 (Tex.App.--El Paso 1986, no writ). In that case, separate appeals were filed from decisions of the bail bond board. Under the concurrent jurisdiction procedure, one was assigned to a district court, the other to a county court at law. The two were consolidated by court order in the county court at law, albeit with a district judge presiding. Unfortunately, the causes were consolidated in a court lacking subject matter jurisdiction over appeals to the district court. Tex.Rev.Civ.Stat.Ann. art. 2372p-3 (Vernon Supp.1991). Despite the amendments to Section 25.0732, the same result obtains in the present case.

In issuing the order for bail bond approval fees, the El Paso County Commissioners Court was acting in an executive or delegated legislative capacity, not in an adjudicatory role. There is no statutory framework for an "appeal" from such an order. Consequently, the present challenge to the order does not constitute an appeal, subject to the present concurrent jurisdiction of the district courts and county courts at law of El Paso County. This is a direct attack on the order, invoking the district court's exclusive general supervisory control over the commissioners court. Mobil Oil Corporation v. Matagorda County Drainage District No. 3, 597 S.W.2d 910, 911-912 (Tex.1980); Scott v. Graham, 156 Tex. 97, 292 S.W.2d 324 (1956); Vondy v. Commissioners Court of Uvalde County, 714 S.W.2d 417, 420 (Tex.App.--San Antonio 1986, writ ref'd n.r.e.); J.R. Phillips Inv. Co. v. Road Dist. No. 18 of Limestone County, 172 S.W.2d 707, 712 (Tex.Civ.App.--Waco 1943, writ ref'd).

Appellant Harvey concedes that this suit constituted an invocation of supervisory control over the commissioners court, as opposed to an appeal from the order. Harvey seeks to avoid this fatal flaw in subject matter jurisdiction of the trial court by reference to Section 25.0732, subsection (t). Subsection (t) was no doubt intended as a retroactive panacea to cure filing mistakes affecting subject matter jurisdiction. It provides that if a cause of action is assigned to a county court at law which does not have subject matter jurisdiction, the mistake shall be considered a clerical error, subject to correction by nunc pro tunc order or judgment. The cause shall be considered as...