OPINION
PHILLIPS, Chief Justice.
This case involves a challenge by various bail bond issuers to the El Paso County Commissioners Court’s pre-conviction bail bond filing fee. The trial court, El Paso County Court at Law No. 2, rendered summary judgment against the issuers and upheld the fee. On appeal, the court of appeals on its own motion held that the statutory county court had no constitutional authority to hear the case. Accordingly, it vacated the trial court’s judgment and dismissed the suit. We hold that because the statutory county judge was, pursuant to a constitutionally valid statute, sitting as a district court judge, the trial was legally conducted in a court of proper jurisdiction. We further hold, however, that the county was not authorized to impose the fee in question. Accordingly, we reverse the judgment of the court of appeals, render a declaration that the fee is illegal, and remand to the trial court for further proceedings.
Facts and Procedural Background
In 1983, pursuant to the authorization of the El Paso County Commissioners Court and County Bail Bond Board,
the Sheriff of El Paso County began collecting a two-dollar fee on each surety bail bond filed for the release of persons from the El Paso County Jail. The fee was required of all persons in the business of issuing bail bonds on each bond filed in a felony or misdemeanor charge. No fee was assessed, however, for cash or personal bonds. For a few years, the Sheriff billed the bond businesses on a monthly basis; but commencing in 1987, payment was required upon presentation of the bond. The Commissioners Court raised the amount of the fee on several occasions, the current charge being $18.00 for each bond.
The first action challenging this fee was brought against El Paso County and its Sheriff, Leo Samaniego, on January 25, 1988, by Mary Camacho, individually and doing business as Afuera Out Bail Bonds, and Nancy Merrill, doing business as Merrill Bail Bonds.
They claimed that the fees violated both the Texas Constitution and the Code of Criminal Procedure. As damages, they sought a return of all fees paid pursuant to the orders, four times that sum as a penalty under Tex.Rev.Civ.Stat. art. 3909, pre-judgment interest, and costs of court.
Although the face of the petition indicated a filing in district court, by law the statutory county courts of El Paso County have, since 1987, exercised substantially equivalent jurisdiction with state district courts. When suit was filed, Section 25.-0732 of the Government Code provided in relevant part:
(a) In addition to the jurisdiction provided by Section 25.0003
and other law,
and except as limited by Subsection (b), a county court at law in El Paso County has the jurisdiction provided by the constitution and by general law for district courts.
(b) A county court at law does not have jurisdiction of:
(1) felony cases;
(2) suits in behalf of the state to recover penalties, forfeitures, or escheat;
(3) misdemeanors involving official
misconduct;
(4) contested elections; or
(5) appeals.
(c) A county court at law has, concurrent with the county court, the probate jurisdiction provided by general law for county courts.
Upon filing, the district clerk, who also serves by law as clerk of the statutory county courts as well as district courts in El Paso County in cases of concurrent jurisdiction,
assigned the lawsuit to County Court at Law No. 2 of El Paso County. All parties agree that the district clerk accomplished this assignment by some random selection method, not by deliberate choice. On November 18, 1988, the court, on its own motion, ordered that damages be tried separately from, and subsequent to, the action for declaratory judgment.
Some months later, Frederick S. Tim-mons, Jr., individually and doing business as “Get Free” Bail Bonds Co., and Alberto J. De Lachica, Jr., individually and doing business as Lachica Bail Bonds,
filed a substantially similar action which was assigned to the 210th District Court of El Paso County.
On defendants’ motions,
Timmons and De Lachica’s suit was first transferred to County Court at Law No. 2, then consolidated with Camacho and Merrill’s suit. Both sets of plaintiffs unsuccessfully sought class certification of all bond businesses and all individuals required to pay a fee prior to release on bond from the El Paso County Jail. Timmons alternatively sought to join all bond businesses in El Paso County as involuntary plaintiffs pursuant to Tex.R.Civ.P. 39. Although the court denied all these motions, the following bond businesses voluntarily intervened before trial: Armando Camacho, doing business as Camacho Bail Bonds; Alberto Lopez, Jr., doing business as Compa Bail Bonds and A-l Bail Bonds; Fernando Lara Basoco, doing business as El Paso Bail Bonds; Dolores G. Solis, doing business as A.D. Solis Bail Bonds; Odia Harvey, doing business as Amigo Bail Bonds; and Kirsten Apodaca, doing business as Apodaca Bail Bonds.
All parties and intervenors sought summary judgment after the parties stipulated virtually all relevant facts. Defendants asserted that the orders assessing the bail bond fee did not violate the federal or state constitution or any statute, while the bond businesses moved for a partial summary judgment on all liability issues, reserving damages for later determination.
After all motions were filed, defendants for the first time contested the subject matter jurisdiction of the statutory county court. By this time, Section 25.0732 had been amended to eliminate the exclusion of appeals from the county court at law’s jurisdiction. Tex. Gov’t Code Ann. § 25.-0732(b) (Vernon Supp.1992). Pursuant to this amendment, the trial court held that it had jurisdiction to review the actions of the commissioners court. It then granted defendants’ motion for summary judgment and denied plaintiffs’ and amended inter-venors’ motions for partial summary judgment.
The bond businesses appealed to the court of appeals, seeking a declaration that the fee was unconstitutional and a remand for a trial on damages only. The county and sheriff did not re-urge the alleged jurisdictional defect on appeal, arguing instead that the trial court’s determination was correct. On its own motion, however, the court of appeals raised the issue of jurisdiction, reversed the trial court’s judgment, and dismissed the entire cause.
The court noted that under Tex. Const, art. V, sec. 8, and Tex. Gov’t Code Ann. § 24.020, the district court had “appellate jurisdiction
and general supervisory control
over the County Commissioners Court,” (emphasis added), and that under Tex. Gov’t Code Ann. § 25.0732(d), supervisory control over the commissioners court was expressly excluded from the county court at law’s jurisdiction. 825 S.W.2d 467, 468. The court of appeals rejected the trial court’s holding, reasoning that the bond issuers’ action did not constitute an appeal over which the trial court had jurisdiction because “[tjhere is no statutory framework for an ‘appeal’ from such an order [of the commissioners court].” 825 S.W.2d at 469. Rather, as a “direct attack on the order” of the commissioners court, it constituted an impermissible invocation of supervisory control over the commissioners court by the county court at law.
The court of appeals also rejected Harvey’s argument that the county court at law was permitted to hear the case pursuant to section 25.0732(t), also enacted in 1989.
Subsection (t) provided as follows:
If any cause or proceeding is lodged with the district clerk and the district clerk files, dockets, or assigns the cause or proceeding in or to a county court at law and the county court at law does not have subject matter jurisdiction over the cause or proceeding, then the filing, docketing, or assignment of the cause or proceeding in or to a county court at law is considered a clerical error and that clerical error shall be corrected by a judgment or order nunc pro tunc. The cause or proceeding is considered filed, docketed, or assigned to the district court of the local administrative judge in the first instance rather than to a county court at law of El Paso County. The judge of a county court at law of El Paso County who acts in the cause or proceeding is considered assigned to the district court of the local administrative judge for that purpose and has all the powers of the judge of that district court under the assignment.
The court of appeals read this language not as increasing the jurisdiction of the statutory county courts, or as accomplishing a legitimate transfer to a court of proper jurisdiction, but as providing “a retroactive panacea to cure filing mistakes affecting subject matter jurisdiction.” 825 S.W.2d at 469. Such a cure, the court held, “amounts to a legislative encroachment upon the powers of the judiciary.” 825 S.W.2d at 469, thus violating the separation of powers clause of the Texas Constitution.
See
Tex. Const, art. II, sec. I.
The court reasoned that because the legislature in Tex. Gov’t Code § 25.0732(d) refused to extend the statutory county court’s jurisdiction to include supervisory power over the commissioners court, it could not effectively extend that power by the automatic transfer mechanism of section 25.0732(t):
What is expressly denied under the Constitution and subsection (d) cannot be indirectly accomplished through subsection (t). If the legislature has not properly conferred subject matter jurisdiction on a trial court, it cannot mindlessly produce that result by rewriting the procedural history of a fatally flawed case.
825 S.W.2d at 469. The court then held that the automatic transfer provision of subsection (t) usurped a court’s inherent power to determine its own jurisdiction:
The only “jurisdiction” of which every court is assured possession is the jurisdiction to assess its subject matter jurisdiction and act accordingly....
Similarly, the question of what constitutes clerical error and what constitutes judicial error is a determination unique to the judicial function and embraced within the inherent powers of the judicial branch of government....
This cause was tried in a county court at law, lacking subject matter jurisdic-tion_ To permit a fictional “correction” under subsection (t) would be to permit parties to circumvent the cardinal rules that subject matter jurisdiction is fundamental, cannot be waived and cannot be conferred by agreement.
825 S.W.2d at 470. Thus, the court of appeals vacated the judgment of the trial court and dismissed the entire cause of action.
Constitutionality of Subsection (t)
The bond businesses appeal now to this Court, filing three separate applications for writ of error which make many overlapping arguments. All parties agree with the
court below that the lawsuit was not an appeal from the County Bail Bond Board’s ruling, and thus was not within the express jurisdiction of the statutory county court. Yet all of them, for various reasons, argue that the trial court properly exercised jurisdiction under section 25.0732(t). Camacho, Merrill and Apodaca urge in their brief to this Court that the filing in county court was a clerical error within the legislative power to correct, that the automatic deemed transfer was a lesser included remedy to a grant of general jurisdiction to the statutory county court, that section 25.-0732(t) applies retroactively to the date suit was filed, and that the legislature acted reasonably to alleviate the fact that “the method of assigning courts in El Paso is fraught with the risk of litigating an entire lawsuit to conclusion, only to have the entire proceedings vacated without notice.” Harvey particularly emphasizes that no improper subject matter jurisdiction was ever conferred on the statutory county court because the case was always deemed filed in district court, and that the court of appeals failed to accord the appropriate presumption of constitutionality to the enactment. Finally, Timmons, De Lachica, Lopez, Basoco, and Soliz suggest that even if subsection (t) did confer additional jurisdiction on the county court at law, as the court of appeals seemed to conclude, it would prevail because it was later in time than other statutory provisions.
The County and Sheriff agree in both their brief and in oral argument that the court below erred, and they expressly adopt Harvey’s argument as to jurisdiction.
We agree with the parties that section 25.0732(t) is not unconstitutional, and that jurisdiction was properly vested in the district court pursuant to that act. Al-though the legislature could have extended the jurisdiction of statutory county courts to include general supervision over commissioners courts as well as appeals,
see Jordan v. Crudgington,
149 Tex. 237, 241-43, 231 S.W.2d 641, 644-45 (1950), it has not chosen to do so. Recognizing the occasional difficulty of determining whether jurisdiction is proper in a statutory county court, the legislature enacted subsection (t) to provide for an automatic, retroactive presumed transfer to a district court whenever jurisdiction is confined to that court. While we have found no other statute of general or local applicability that automatically and retroactively exercises the transfer authority of an administrative judge, we know of no constitutional impediment to such a procedure.
Recently, the practical distinctions between district and statutory county courts have greatly decreased. Although statutory county courts have existed since 1907,
see, e.g.,
Act approved April 3, 1907, 30th Leg., R.S., ch. 53, 1906-1907 Tex.Gen.Laws 115 (establishing County Court of Dallas County at Law,
repealed by
Act of April 30, 1987, 70th Leg., R.S., ch. 148, § 4.02(a), 1987 Tex.Gen.Laws 534, 703, their jurisdiction was for many years confined to a portion of that constitutionally granted to constitutional county courts. Now, however, statutory county courts not only exercise substantial civil jurisdiction, as in El Paso County, but they also in some instances exercise considerable jurisdiction over criminal felonies.
The state now pays some, but not all, of the salary of both district and county judges, but none of the support salaries of either type of court. Tex.Gov’t Code Ann. § 25.0015 (Vernon Supp.1992). Regular statutory county
court judges may be assigned by a presiding judge to hear a matter in district court within their own county, Tex. Gov’t Code Ann. § 74.054(a)(1) (Vernon Supp.1992), and retired or former statutory county court judges are eligible to serve on assignment on the same basis as former district and appellate judges.
Id.
§§ 74.054(a)(3), .055(c). Within each county, the district and statutory county court judges must jointly adopt local rules of administration.
Id.
§ 74.093.
In recent years, the Legislature has made two significant changes in local court administration that are directly relevant to subsection (t). In 1985, as part of the Court Administration Act, they provided that within a county, district and statutory county court judges may exchange benches, sign a judgment or order in another court without transferring the case, and be subject to assignment of any trial or proceeding by the local administrative judge. Act of May 27, 1985, 69th Leg., R.S., ch. 732, § 2, 1985 Tex. Gen. Laws 2533, 2540 (current version, as amended, at Tex. Gov’t Code Ann. § 74.094 (Vernon 1988 & Supp.1992). Two years later, a provision that thése rules did not authorize a judge to act in a case over which his own court lacked jurisdiction was repealed. Act of May 27, 1985, 69th Leg., R.S., ch. 732, § 2, 1985 Tex.Gen.Laws 2533, 2539,
repealed by
Act of June 1, 1987, 70th Leg., R.S., ch. 674, § 2.10, 1987 Tex.Gen.Laws 2515, 2515-16 (effective September 1, 1987).
Subsection (t) is consistent with these principles of court administration. Rather than conferring any additional jurisdiction on a court, it effects an automatic transfer of both case and judge to a proper court. This is no greater extension of judicial power than allowing a statutory county court judge to hear, determine, and sign a judgment in a matter pending in district court outside his court’s jurisdiction without transferring the case.
See
Tex. Gov’t Code Ann. § 74.094(a) (Vernon Supp.1992). Nothing in the separation of powers clause mandates that this decision must affirmatively be made at a particular time in the course of the litigation. Subsection (t) preserves the district clerk’s ability to assign cases randomly among both district and statutory county courts, while preventing the waste, expense and frustration of a trial in a court which lacks jurisdiction.
Finally, as this provision is procedural in nature, it clearly can be applied retroactively.
See Merchants Fast Motor Lines, Inc. v. Railroad Commission,
573 S.W.2d 502, 504-05 (1978). Thus, when subsection (t) became effective on September 1, 1989, this action was deemed filed in district court as of January 25, 1988, the original date of filing.
We are not without sympathy for the court below. This is not the first, and will not likely be the last, case arising out of the failure of Texas to have a true judicial “system.” The basic flaw is not with judges or clerks, and certainly not with litigants or their counsel. Rather, such confusion and inefficiency are endemic to a judicial structure with different courts of distinct but overlapping jurisdiction.
See generally
Texas ReseaRch League, Texas Courts, Report Two: The Texas Judiciary: A Proposal FOR Structurad-Functional Reform (1991); Texas Research League, Texas Courts, Report One: The Texas Judiciary: A Structural-Functional Overview (1990); 1 The Constitution of the State of Texas: An Annotated and Comparative Analysis 367-680 (George D. Braden, ed. 1977).
We therefore hold that Tex. Gov’t Code § 25.0732(t) is not unconstitutional, and that under its provision this case was tried by a court of proper jurisdiction.
Collection of Fees
The merits of this case require us to determine whether the El Paso County Commissioners Court is authorized by statute to impose, and the Sheriff of El Paso county to collect, a pre-conviction bail bond approval fee from bail bond businesses. Although the court of appeals did not reach this issue, we address it in the interest of judicial economy to the extent the parties before us have briefed the issues.
The Texas Code of Criminal Procedure provides:
An officer may not impose a cost ... for a service for which a cost is not expressly provided by law.
Tex.Code Crim.Proc. Ann. art. 103.002 (Vernon Supp.1992). It is undisputed that the bail bond approval fee in dispute is not explicitly authorized by statute.
However, the County and Sheriff argue that Texas Local Government Code section 118.131 authorizes a commissioners court to “set reasonable fees to be charged for services by the offices of the sheriff and constables.” Tex. Local Gov’t Code Ann. § 118.131(a) (Vernon 1988). Because the eighteen dollar fee charged in El Paso is a reasonable “administrative” fee for the sheriffs services, it is authorized by section 118.131.
The bond issuers do not challenge the “reasonableness” of the bond approval fee.
Rather, they argue that the imposition by the commissioners court of
any
bond approval fee is impermissible under our statutes. Chapter 118 of the Local Government Code pertains only to fees that the sheriff may collect in connection with services performed in civil matters, and does not authorize the commissioners court to set fees in criminal matters. The only fees that the sheriff may collect in criminal matters are enumerated in Code of Criminal Procedure sections 102.001
and 102.-011;
and these fees do not include a fee against bond issuers for bail bond approval. Thus, they argue, the criminal bail bond fee in El Paso is not authorized by statute and is thus impermissible. We agree.
In our early statutes, the Legislature enumerated in a single provision the fees that sheriffs and other state officials were authorized to collect for performing duties associated with both civil and criminal matters. The first of these provisions was enacted in Act approved Mar. 20, 1848, 2nd Leg., ch. 160, § 8, 3 H. Gammel, Laws of Texas 297, 303-04 (1898). The Legislature enacted the Code of Criminal Procedure in 1856. It included two sections relating specifically to sheriffs’ fees in criminal matters, though it did not include all of the fees pertaining to criminal matters enumerated in the 1848 Act. Code of Criminal Procedure, Act approved Aug. 26, 1856, 6th Leg., Adj.S., part 5, title 4, ch. 1, art. 973 and ch. 2, art. 977 (reproduced at Digest of the General Statute Laws of the State of Texas 677-79 (1859)). Despite the existence of provisions within the Code of Criminal Procedure addressing sheriffs’ fees for criminal matters, the Legislature continued to treat sheriffs’ fees for civil and criminal matters together in subsequent enactments.
See
Act approved Nov. 13, 1866, 11th Leg., ch. 183, § 8, 5 H. Gammel, Laws of Texas 1146, 1150-51 (1898) (codified at 1 Paschal’s Annotated Texas Digest 635 (5th ed. 1878)); Act approved Aug. 23, 1876, 15th Leg., ch. 164, § 11, 8 H. Gammel, Laws of Texas 1120, 1125-26 (1898).
By 1879, however, the Legislature began to segregate fees for civil and criminal matters. By Act approved Apr. 14, 1879, 16th Leg., R.S., ch. 81, 8 H. Gammel, Laws of Texas 1390, 1392-93 (1898) (codified at Tex.Rev.Civ.Stat., title 42, ch. 3, art. 2396 (1879)), the Legislature enumerated a fee schedule for sheriffs relating purely to civil matters. That same year, the Legislature codified the 1876 Act’s sheriffs’ fees for criminal matters at Tex.Code Crim.Proc., title 15, ch. 4, art. 1094 (1879). From 1879 until 1981, the two sets of fees developed on separate but relatively parallel tracks.
During all this time, the Legislature specifically set and revised the dollar amounts of each civil
and criminal
fee that a sheriff could collect.
In 1981, however, the Legislature eliminated the “laundry list” approach in civil matters by repealing the then-governing statute, article 3933a, and giving discretionary fee-setting power to the county commissioners courts. Act of May 22, 1981, 67th Leg., R.S., ch. 379, § 1, 1981 Tex.Gen. Laws 1001 (codified at Tex.Rev.Civ.Stat. Ann. art. 3926a (amended 1987)) (current version at Tex. Local Gov’t Code § 118.131 (Vernon 1988 & Supp.1992)). Article 3926a, which replaced article 3933a, provided that “[t]he commissioners court of each county may set reasonable fees to be charged for services by the offices of sheriffs and constables.”
Id.
The County and Sheriff argue that article 3926a also applies to fees in criminal matters, and that the sheriff of El Paso County is authorized under Local Government Code § 118.131, the successor statute, to collect fees for bail bond approval. On its face, this argument has some appeal, enough that Camacho and Merrill asked the trial court below to declare the statute unconstitutional rather than inapplicable. Furthermore, it is not absolutely certain that the Legislature intended to address only civil fees when it enacted article 3926a. The legislative history of House Bill 1617, which became article 3926a, is inconclusive on the question. As the Sheriff points out, the bill analysis of H.B. 1617 provided by the House Committee on Security and Sanctions notes that “[a]t present, the legislature sets the fees charged for the delivery of
civil and criminal
papers by a sheriff or constable” and also that “[t]his bill would place the responsibility of setting fees charged by sheriffs and constables under the local control of the various commissioners courts.” Bill Analysis, H.B. 1617 (1981) (emphasis added).
Finally, the County and Sheriff argue that the Legislature repealed article 53.01 of the Code of Criminal Procedure in 1981 because it conflicted with the newly created general fee-setting authority of the commissioners court. As section 2 of the
act creating article 3926a explicitly provided, “[flees provided for sheriffs and constables in other laws in conflict with the provisions of this Act are repealed to the extent they conflict with this Act.” Act of May 22, 1981, 67th Leg., R.S., ch. 379, § 2.
On balance, however, we believe that article 3926a and its successor statute do not apply to criminal matters. Article 3926a constituted an amendment to the Revised
Civil
Statutes of Texas. The article that it replaced, article 3933a, dealt solely with sheriffs’ and constables’ fees for
civil
matters. The Civil Statutes have enumerated only civil fees for sheriffs since 1879; all fees for services rendered pursuant to criminal matters have been enumerated exclusively in the Code of Criminal Procedure since at least that date. It is reasonable to conclude that in 1981, the legislature intended the “services” for which it authorized the commissioners court to set fees to include only services associated with civil, not criminal, matters.
More importantly, the separate development of sheriffs’ fees for criminal matters since 1879 continues unabated. Thus, the criminal fee structure of Code of Criminal Procedure art. 63.01, enacted in 1965, was amended by the Legislature in 1985 with no indication that it had ever been repealed. Act of May 26, 1985, 69th Leg., R.S., ch. 239, § 9, 1985 Tex.Gen.Laws 1183, recodi-fied at Code Crim.Proc. article 102.001; Act of May 17, 1985, 69th Leg., R.S., ch. 269, § 1, 1985 Tex.Gen.Laws 1301-02. The Legislature twice again amended its fee structure for sheriffs performing services in criminal matters in 1987. Act of May 1, 1987, 70th Leg., R.S., ch. 167, § 4.01, 1987 Tex.Gen.Laws 1356 (amending Code of Criminal Procedure art. 102.001); Act of May 31, 1987, 70th Leg., R.S., ch. 821, 1987 Tex.Gen.Laws 2835-36 (amending art. 102.-001 and adding art. 102.011). Still again, in 1989, the Legislature twice spoke on the question of sheriffs’ fees in criminal matters. Act of May 28, 1989, 71st Leg., R.S., eh. 347, § 1, 1989 Tex.Gen.Laws 1316-17 (amending art. 102.001); Act of May 29, 1989, 71st Leg., R.S., ch. 826, 1989 Tex. Gen.Laws 3784-85 (amending art. 102.011 and repealing art. 102.001). In none of these revisions of the Code of Criminal Procedure did the Legislature in any way recognize that the County Commissioners Court had any authority to set sheriffs’ fees in criminal matters.
In 1989, moreover, the fee bill as originally introduced did attempt to give the commissioners court authority to levy sheriffs’ fees in criminal proceedings. The original language of S.B. 356 provided as follows:
The commissioners court of a county may set reasonable fees to be charged for services in criminal cases by the offices of the sheriff and constables, in the same manner as the commissioners court sets fees under Section 118.131, Local Government Code.
Tex. S.B. 356, 71st Leg., R.S. (1989). The Legislature, however, struck this provision from the final version of the Bill. The Bill Analysis of S.B. 356 states
The committee substitute would delete the provision enabling the commissioners court of a county to set fees for services performed by peace officers.
Senate Comm. on Criminal Justice, Bill Analysis, Tex.S.B. 356, 71st Leg., R.S. (1989). As we stated in
Smith v. Baldwin,
611 S.W.2d 611, 616-17 (Tex.1980), “the deletion of a provision in a pending bill disclose[d] the legislative intent to reject the proposal.” Thus, the history of Code of Criminal Procedure article 102.011 also indicates a legislative desire to retain the “laundry list” approach to sheriffs’ fees in criminal matters, and a deliberate refusal to grant the commissioners court authority to set those fees.
The bond businesses also argue that a bond approval fee may not be collected from them under the language of article 102.011 of the Code of Criminal Procedure, which provides that
(a) A
defendant
convicted of a misdemeanor shall pay the following fees for services performed in the case by a peace officer:
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(5) $10 for taking and approving a bond and, if necessary, returning the bond to the courthouse;
Act of May 29, 1989, 71st Leg., R.S., ch. 826, § 1, 1989 Tex.Gen.Laws 3784 (codified at Tex.Code Crim.Proc. § 102.011 (Vernon Supp.1992)) (emphasis added). This fee is to be collected from a criminal defendant, not a bond business. The El Paso fee is levied against the bond business, and is thus not authorized under this statute.
Article 103.002 of the Code of Criminal Procedure provides that “[a]n officer may not impose a cost for a service ... for which a cost is not expressly provided by law.” Because no article of the Code of Criminal Procedure provides that the commissioners court of El Paso County may levy a fee against bail bondsmen, and because Local Government Code article 118.-131 does not apply in the criminal context, article 103.002 forbids the sheriff of El Paso County from imposing the disputed fee on the bail bondsmen.
The Sheriff argues that the fee is a mere “administrative” fee used to help defray administrative costs, and not a fee assessed as a form of punishment. He argues that in
Schilb v. Kuebel,
404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971), the United States Supreme Court upheld an Illinois bail bond fee similar to the one in El Paso.
This reliance is misplaced. In
Schilb,
the Supreme Court held that the Illinois statute imposing this fee did not violate the due process or equal protection clauses of the federal Constitution. No claim was made that the Illinois fee was authorized by an Illinois statute. The fee here, in contrast, is not authorized by a Texas statute. Our holding merely relates to the illegality of the El Paso Commissioners Court’s fee
under Texas law,
and does not address the constitutionality of fees actually authorized by the Legislature.
Conclusion
We hold that Texas Government Code section 25.0732(t) is constitutional and we reverse the court of appeals holding to the contrary. We also reverse the county court at law’s summary judgment for the Sheriff and render judgment for the bond businesses because we find that, as a matter of law, the bond approval fees imposed on bondsmen by the El Paso County Commissioners Court and collected by the Sheriff are not authorized by any Texas statute.
We therefore remand this cause to the trial court for further proceedings.