Lubbock County and 63 other Texas Counties have been named as parties in a civil class action suit contesting the constitutionality of Section 51.702 of the Texas Government Code (The "Judicial Fund".) The suit was originally filed in 1999 in Travis County and has (according to the petition) been certified as a class action, joining the 64 counties. I was unaware of this suit until receiving the petition. I am interested in getting in touch with any of the other county-defendants to determine what they might know about this suit and to formulate a coordinated response.

As I recall, the issue that has been brewing concerning that fund is the allegation that it is an unconstitutional fee because it is charged on a conviction, and it is discretionary with individual counties. Therefore, the argument goes, the criminal penalties are different from county to county. I know some counties, like Dallas, pulled the plug on this fee when this issue first came up.

I am running to ground the name of a person at the AG's office who has worked on this. There could be some AG opinions dancing around this issue as well. Anyone see them?

Potter County received a demand in the Caldwell v. Rylander suit back in 2000. There, Mr. Crews demanded that Potter County "reimburse" all moneys collected under section 51.702(b) of the Government Code. Although we have not been served in the "class action," I would fully anticipate our inclusion. Until I see the latest pleadings, though, I cannot comment (intelligently or otherwise) on the claims. I do know that, then-Court of Appeals Justice Baker, in Dallas County v. Sweitzer, 881 S.W.2d 757, 764 (Tex. App.--Dallas 1994, writ denied), instructed us that, "the proper remedy when a court finds that an authorizing statute of a fee is unconstitutional is to enjoin the collection of that fee."

NOlan County managed to make the list - and - FYI - Potter is on there also, as is Dallas! (the rest are listed below.

I agree - can't we manage this as a group? For surely if we do not hang together......

(Anderson, ANgelina, Bell, Bexar, Brazos, Caldwell, Calhoun, Cameron, Cherokee, Collin, Comal, Coryell, Dallas, Denton, Ector, Ellis, El PAso, Erath, Ft Bend, Galveston, Grayson, Gregg, Guadalupe, Harris, Hays, Henderson, Hidalgo,Hopkins, Houston, Hunt, Johnson, Kaufman, Kerr, Kleberg, Liberty, Lubbock, McClennon, Medina, Midland, Montgomery, Moore, Nacogdoches, Nolan, Nueces, Orange, Panola, Parker, POlk, Potter, Randall, Rusk, san Patricio, Smith, Tom Green, Travis, Val Verde, Victoria, Walker, Waller, Washington, Webb, Wichita, Williamson & Wise!)

10-8-02

I am drafting Lubbock County's Answer to the Caldwell suit. I am planning on including a Motion to Transfer Venue, based on Tex. Civ. Prac. & Rem. C. 15.051 (mandatory venue for a suit against a county is in that county.) If any of you have researched the applicability of this code provision to suits against multiple counties, I would be interested in hearing from you.

I had the same thought, but I fear that section 15.005 of the Civil Practice and Remedies Code may do us in. I would note that the original action does not properly trigger CPRC sec. 15.014 as the plaintiff alleges, since she does not seek mandamus relief against the comptroller. However, Travis County is a (theoretically) properly-joined defendant, looping us back to sec. 15.005. I see the true viability of the plaintiff's claim as a real issue, though. I think there has been much assumption that, since there are two AG opinions and some hoary cases from the '40s and before opining that, where fines or penalties might be different as between counties, the authorizing statute violates equal protection/due process. That doesn't comport with modern equal protection/due process jurisprudence, which requires in the absence of a suspect classification or intrusion upon a fundamental right (as is the case here) only a rational relation between the governmental act at issue and a legitimate governmental objective. There is a fundamental flaw in the assertion that defendants in courts at law necessarily face a different punishment than in other counties. That problem is sec. 51.703(b) of the Gov't Code (imposing $15 court cost on misdemeanor defendants in constitutional county courts). Likewise, I think a special exception for failure to state a claim on their takings "reimbursement" claim is appropriate. The old bail bond fee cases are split, but at least since 1941, the Supreme Court has held that an exaction to raise revenue is not a "taking," but rather a tax which is not the proper subject of review under article 1, sec. 17. Regardless, we prairie punks stand ready to join the rest of you white hats in this fight, and in educating Mr. Crews & Co. on why suing the individual counties was a bad idea (for instance, there's going to be a substantial portion of the plaintiff class that has no standing to seek art. 1, sec. 17 relief against Potter County, and the same is true for all the other counties). Regulators, let's ride!