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Forcing Tarrant indigents to pay legal fees is illegal, court told

Wallace Jefferson, center, representing Fort Bend Independent School District, arrives to make oral arguments at Texas' latest school finance trial at the state Supreme Court, Tuesday, Sept. 1, 2015, in Austin, Texas. Jefferson was back in court Wednesday for arguments in a Tarrant County indigent court fees case. (AP Photo/Eric Gay)
Wallace Jefferson, center, representing Fort Bend Independent School District, arrives to make oral arguments at Texas' latest school finance trial at the state Supreme Court, Tuesday, Sept. 1, 2015, in Austin, Texas. Jefferson was back in court Wednesday for arguments in a Tarrant County indigent court fees case. (AP Photo/Eric Gay) AP

A Tarrant County policy allowing court costs to be collected from indigent litigants is improper, and a lawsuit challenging the practice should be allowed to continue, a lawyer for seven low-income residents told the Texas Supreme Court on Wednesday.

Allowing the practice to continue would threaten a basic tenet of justice by limiting poor Texans’ access to the courthouse, lawyer Wallace Jefferson said during oral arguments.

“The remedy is to [stop] that unlawful policy once and for all,” said Jefferson, the court’s former chief justice. “The costs here are zero, and the clerk can make that determination and has an obligation to. That’s his duty under the law.”

Jefferson’s side won an early victory when state District Judge David Cleveland issued a temporary injunction in April 2013 that barred Tarrant County District Clerk Tom Wilder from requiring indigent residents to pay court fees, a practice he began in November 2010.

Before a trial could be held on a permanent injunction, however, the 2nd Court of Appeals tossed out Cleveland’s ruling and dismissed the lawsuit filed on behalf of indigent Fort Worth residents who were billed an average of $300 for costs related to divorce proceedings.

In a 2-1 ruling, the court said Cleveland did not have the authority to issue a ruling because the fees had to be challenged in the courts that handled the divorces.

Wilder’s lawyer, Assistant District Attorney Christopher Ponder, urged the Supreme Court to affirm the 2nd Court’s ruling, arguing that the low-income litigants turned to the wrong court for help.

But Ponder also defended the fees as justified, saying Wilder was following judges’ orders that court costs “shall be paid … by the party who incurred them” — language that trumped a finding of indigency.

The Supreme Court appeal was filed on behalf of seven indigent Tarrant County residents who were assessed fees after their divorces were granted from 2008 to 2012, including a woman with an abusive husband, a single mother who is unable to work as she recovers from cancer and a woman on food stamps whose ex-husband was imprisoned for sexually assaulting her daughter.

The seven were among several hundred indigent litigants who received letters demanding immediate payment and threatening to seize their property if they failed to comply, court documents said.

Justice Eva Guzman aggressively questioned Ponder’s analysis, noting that she was once a district judge who handled family matters.

“I used to sign those decrees, and if someone was indigent, I don’t know that as a trial judge I would be imposing any costs — I couldn’t impose any,” Guzman said. “And so you seem to be arguing that somehow, even though … there are no costs because they are not responsible for them, that the clerk gets to go behind that and come up with a number?”

Costs ‘shall be paid’

Clerks, Ponder replied, are bound by the language of a judge’s order that says costs “shall be paid.”

“Do we want to advocate a system where the clerk [says], ‘Nonetheless, I’m not going to collect?’ ” Ponder said.

Jefferson urged the justices to reinstate the lawsuit and return the case to Cleveland’s court for a hearing on whether a permanent injunction should be issued.

Lee DiFilippo, another lawyer representing the low-income residents, said only Tarrant County has tried to collect the fees. The fear, she said outside court, is that other county clerks would adopt similar policies if the Supreme Court dismisses the lawsuit.

Jefferson and DiFilippo have waived their fees to represent the low-income residents.

The Supreme Court has no deadline to issue a ruling in the case, Campbell v. Wilder, No. 14-0739.

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