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Texas Supreme Court Defends Indigent Litigants in Strong-Worded Opinion

, Texas Lawyer

Texas Supreme Court Chief Justice Nathan Hecht
Texas Supreme Court Chief Justice Nathan Hecht

The Texas Supreme Court has slapped down Tarrant County District Clerk Thomas Wilder's policy of collecting court costs from indigent litigants.
The high court also warned any judge who seeks to demand money from indigent parties.
"It is an abuse of discretion for any judge, including a family law judge, to order costs in spite of an uncontested affidavit of indigence," said the 8-0 opinion in Campbell v. Wilder. Justice Debra Lehrman didn't participate in the decision.
Tarrant County assistant district attorney Chris Ponder, who represented Wilder, and former Chief Justice Wallace Jefferson, a pro bono appellate lawyer for the indigent litigants, each didn't return a call seeking comment before deadline.
Lee Difilippo, who represented the petitioners in the trial court, said that the opinion guarantees that indigent litigants will obtain their constitutional right to access the courts.
"I'm really proud of my clients. It's been a long haul for them and they are not used to being in litigation. Their effort will now have a tremendous effect on behalf of all indigent litigants across the whole state of Texas," said Difilippo, founder of the Difilippo Holistic Law Center in Austin, which assists pro se litigants who cannot afford lawyers to access the courts.
Difilippo said the opinion is important because court clerks in other counties have been doing the same thing as Wilder.
"It'll hopefully just stop these practices," she said.
The April 1 opinion explained that the petitioners are six indigent litigants who filed divorces in Tarrant County. District courts in their cases issued final divorce decrees that said either that each party would bear his or her own costs, or that the husband and wife would each pay their own costs. Wilder later sent collection notices demanding an average of $300.
The petitioners sued him and a district court issued a temporary injunction to stop Wilder's policy of collecting court costs from indigent parties. But Wilder appealed, arguing that the trial court didn't have jurisdiction because the litigants needed to go back to their original court in their divorce to alter the judgments in their underlying cases. The court of appeals vacated the judgment and dismissed the case for want of jurisdiction.
But the high court reversed the court of appeals' judgment in the case and sent it back to the trial court for further proceedings.

High Court Ruling

Wilder's jurisdictional argument was front and center before the Supreme Court. He argued that Texas Civil Practice & Remedies Code Sec. 65.023(b) deprived the trial court of jurisdiction. The statute says that an injunction on a judgment must be tried in the court that issued it.
Hecht wrote that the law did not apply in this case. He noted that the high court ruled in 1923 in Carey v. Looney that "the test of jurisdiction in such cases is whether the relief sought may be granted independently of the judgment or its mandate sought to be enjoined."
Wilder ignored and misread that part of the test, Hecht explained. But his misinterpretation actually found support in a 1982 Supreme Court case, Evans v. Pringle. The high court decided that it got Evans wrong, and overruled the finding.
Hecht wrote that here, the statute would not apply and that the district court would have jurisdiction to issue the injunction. The petitioners were not challenging a single word of their judgments. They were challenging Wilder's actions and his policy, Hecht explained.
Wilder had a ministerial duty to bill costs under the divorce judgments. While he argued that the divorce decrees required the petitioners to pay costs, the high court disagreed.
"The decrees only allocate costs between the parties to each case, requiring each party to bear his or her own costs—whatever they are. For a party who files an affidavit of inability to pay costs, there are no costs to bill," the opinion said. "The family courts here did not order costs. The language in the judgment merely lays out the division of any costs, not an amount to be charged. It is the ministerial duty of the district clerk to tabulate the costs and apply the affidavit of indigency."
Wilder also argued that a temporary injunction was an improper remedy, because the petitioners could have filed a motion to retax costs in the courts that issued their judgments.
But Hecht wrote, "Petitioners are not complaining of a one-off miscalculation or mistake, but of a systematic policy that contravenes the law. It would be wasteful to force each individual petitioner to file a motion to retax costs when a single injunction will do."
Wilder also claimed the injunction was overbroad because it didn't just enjoin him from collecting costs from these petitioners, but all indigent litigants.
Hecht wrote that the injunction was not overbroad because it only required Wilder to follow the law. It didn't stop him from any lawful activity.
"When policy or procedure is challenged as being in conflict with state law, any injunction that issues will necessarily affect individuals beyond the named parties," the opinion said.
Difilippo said that when the case returns to the trial court, she could ask for a hearing to get a permanent injunction to stop Wilder's policy. But first, she'll communicate with Wilder's side to see how he wants to proceed. Based on the Supreme Court's opinion, it would make the most sense if he settled, she said. Difilippo added that an amended pleading in the trial court sought reimbursement for a class of all of the indigent litigants who paid court costs in response to Wilder's policy.
"I will do every thing I can … to try to get the money back for all the people in Tarrant County, because it doesn't belong to the county. The money belongs back to the indigent people," Difilippo said. "It's thousands of people in Tarrant County who have paid."

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Clinton Aides Agree To Be Represented By The Same Lawyer In Answering Questions On Email Scandal

by jonathanturley
Hillary_Clinton_Testimony_to_House_Select_Committee_on_BenghaziThere is an interesting development in the Clinton email scandal. The investigation has entered a particularly dangerous stage for Clinton with a key aide receiving immunity and interviews scheduled for key associates. The danger is that statements given prosecutors can differ and contradict each other or, worse yet, contradict Clinton. Moreover, such statements could be unknown to Clinton when she speaks with investigators. For that reason, many are likely to view a recent announcement with considerable suspicion that the top four staff members to Clinton have agreed to be represented by the same attorney, Beth Wilkinson. That would allow a degree of coordination or at least confirmation of differing statements or accounts. Since Wilkinson is not allowed to represent multiple clients with conflicts, it would also create a situation where the statements must not conflict in significant ways between the clients and, if they do, she would likely have to remove herself -- a move that would likely be known to the Clinton counsel and highlight a potential problem with a given associate. She will represent former Chief of Staff Cheryl Mills, Deputy Chief Jake Sullivan, Mills’ deputy Heather Samuelson, and Clinton spokesman Philippe Reines.
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