When Shawnta Coleman walked out of the Tarrant County Family Law Center three years ago, she thought her divorce case was done. Finished. End of story.
She had been separated from her husband for seven years — as amicable a split as possible. She was already getting child support from her ex-husband, whom she married as a teenager.
“It was short, sweet and simple. Or so I thought,” Coleman said.
Then the letter came.
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The Tarrant County district clerk’s office sent Coleman a bill about a year later saying that she owed $308 in court costs and that the Sheriff’s Department could seize her property if the fees were not paid. Coleman was shocked because the court had approved documents saying she was too poor to pay.
“I told them [they’d] have to do what they had to do because I didn’t have $308,” Coleman said. “I didn’t have enough income coming in to set up a payment plan.”
Coleman was not alone. Tarrant County District Clerk Tom Wilder’s office sent out countless letters during the past several years dunning indigent clients for unpaid fees in family court cases. He collected at least $60,000 before the effort was suspended, according to one internal document.
Now former Texas Supreme Court Chief Justice Wallace Jefferson is leading a group of attorneys asking the court that he used to lead to stop the practice, saying it threatens a basic tenet of justice: access to the courts for the poor.
Jefferson is representing Coleman and six other Tarrant County residents who sued Wilder in 2013. While they persuaded a state district court to issue an injunction, an appeals court eventually dismissed that lawsuit. Jefferson now wants the Supreme Court to put the issue on its docket, hopefully this fall.
“I think it’s a very major case involving access to the courts by Texans who cannot afford legal representation,” said Jefferson, now in private practice in Austin.
Jefferson, the first African-American justice and chief justice, championed access to the courts during his time on the Supreme Court.
“The money may not be much, but they are having a difficult time making monthly bills and meeting their fundamental needs,” he said. “To add a fee on like this would stifle their ability to get to court in many cases.”
Wilder has argued that he is only doing what the judges ordered him to do and that he is not blocking anyone’s court access.
He has also said he was following a process patterned on what’s used in other large Texas counties and acting on advice from the district attorney’s office.
He declined to be interviewed for this report but did confirm that he has stopped collecting the fees while the matter is on appeal. He started the collection effort in 2010, according to court documents.
Tarrant County Assistant District Attorney Chris Ponder, who is defending Wilder, is careful not to criticize Jefferson. But in his brief to the Supreme Court, he says opposing counsel is “appealing to a fear that renegade clerks will operate with impunity and without restraint of the rules.”
He said the plaintiffs can fix the problem by returning to the court where they received their divorces and asking that the matter be cleared up. He also points out that the Supreme Court has already changed the boilerplate language on do-it-yourself divorce forms that caused the problems.
“These litigants prepared their judgments. They were agreed to. The [district] clerk didn’t draft them. The parties did,” Ponder said. “These folks are trying to do a process that is complicated, that they’ve chosen to take on themselves, and there are a lot of subtle issues that can arise.”
Who will pay
Coleman and the others had no idea that they owed money. All had filed affidavits of indigency at the time of their divorces, showing that they couldn’t pay the standard court costs.
The exemption is allowed under Rule 145 of the Texas Rules of Civil Procedure, which was written to provide a “statutory exception for those litigants who are able to demonstrate that they cannot afford such costs,” according to court documents.
When litigants can’t pay, the county absorbs the costs. The county can challenge an indigency affidavit, and Wilder has said he has uncovered scams involving people who had the income but did not want to pay.
At the time of her divorce, Coleman told the court that she earned $823 a month from a part-time job at North Lake College and that she received $282 a month in food stamps and $505 in child support. While her income was about $1,600 a month, her bills topped $1,800, records show. Her checking account had $100 in it.
Coleman couldn’t afford an attorney, so she used an eight-page fill-in-the-blanks, check-the-boxes divorce form from the Tarrant County Law Library. At the end is a one-sentence section on court costs that says: “The Husband will pay for his court costs; the Wife will pay for her court costs.”
Her indigency application was not challenged, so when she was charged $308 — $272 for the divorce and a $36 child support service fee — her receipt said it was charged to her pauper’s affidavit for inability to pay, court records show. Without much ceremony, her divorce became final in July 2011.
In May 2012, she received a bill from the district clerk that was marked “past due.” It said that she owed $308 and that it could be turned over to a sheriff’s deputy or a constable for collection.
Coleman was told that she could set up a payment plan, even after she said she had a receipt showing a zero balance.
“I thought it was a computer error,” she said. “It scared me. At the time, I had a car and I didn’t want them to take it.”
In 2013, Lee DiFilippo, then an attorney for the Texas Advocacy Project, filed a lawsuit challenging the collection efforts against Coleman and two other indigent clients. Eventually, that litigation was merged with a lawsuit filed by Legal Aid of NorthWest Texas that included four other poor plaintiffs.
DiFilippo and others accused Wilder of trying to “intimidate” low-income litigants into paying the court costs — despite the indigency affidavits — because of language in the divorce decrees stating that the costs would be borne by the party who incurred them. The letters were sent from May to August 2012.
But DiFilippo also received a spreadsheet from the district attorney’s office during the litigation indicating that Wilder collected about $61,000 from about 700 cases where a pauper affidavit had been filed but the account was considered past due. While most of the cases are from recent years, some went back further, including one from 2003.
The legal-aid attorneys persuaded a visiting state district judge in April 2013 to issue a temporary injunction stopping Wilder. But a year later, the Fort Worth appeals court reversed that decision, saying any judgments on those cases should have come from the family courts where the divorces were handled.
In July, Jefferson, DiFilippo, Jason Smith and two other attorneys working on the case for free submitted a petition for review to the Supreme Court. In that brief, they say that Rule 145 was designed to guarantee access to the courts but that “in Tarrant County, Rule 145 is now just a mirage.”
‘Devastating to the poor’
The issues circling the Tarrant County case are clearly close to Jefferson’s heart.
In his last State of the Judiciary speech to lawmakers in 2013, Jefferson said too many Texans find the system unworkable and unaffordable. And he said that nearly 6 million Texans qualify for legal aid but that available programs meet only 20 percent of their needs.
“Lawyer fees are so high, the system is available for the wealthy but not for the middle class and the poor,” Jefferson said in an interview. “It is very difficult to represent yourself in court.”
In the brief that Jefferson hopes will persuade his former colleagues on the high court to take up the case, the attorneys say Wilder is violating his duties to properly charge costs. If the plaintiff is indigent, there are no costs and all the clerk has to do is review the docket sheet to get that information.
They also stress that their lawsuit does not challenge the core issues involved in the divorces, such as child custody. They are questioning only the county policy of seeking the money. As a result, the injunction issued by the district judge stopping the collection effort was valid.
They also reject the idea that their indigent clients would know to return to the courts to have the costs removed.
The county brief says “filing a motion to retax costs is not so laborious or difficult a process.”
But Jefferson doesn’t buy it. “I don’t think it is reasonable. One reason they [the poor] qualify is that they can’t hire legal representation and the procedures in the courts are perplexing to many lawyers,” he said.
DiFilippo simply calls what Wilder does “a blow to the poor. Let’s call it what it is.”
“It is a very obvious and simple legal concept, but here we are in front of the Texas Supreme Court,” she said. “This is definitely a cause. I saw the potential from the beginning. I saw the impact across Texas. If this was left unchanged, it could be devastating to the poor.”