Tom Benson v. State

• Court: Court of Appeals of Texas
• Decided: March 6, 2015
• Docket: 03-15-00121-CR
• Status: Published

Opinion

ACCEPTED 03-15-00121-CV 4393566 THIRD COURT OF APPEALS AUSTIN, TEXAS 3/6/2015 9:03:54 AM JEFFREY D. KYLE CLERK NO. 03-15-00121-CV

IN THE COURT OF APPEALS FILED IN THIRD DISTRICT OF TEXAS 3rd COURT OF APPEALS AUSTIN, TEXAS AT AUSTIN, TEXAS 3/6/2015 9:03:54 AM JEFFREY D. KYLE Clerk TOM BENSON Appellant,

vs. THE STATE OF TEXAS, Appellee.

APPELLANT'S MOTION TO DETERMINE PROPER DESIGNATION OF CASE AND APPROPRIATE APPELLATE FILING FEE

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Appellant, Tom Benson, asks this Comito determine the proper designation

of this case and the appropriate appellate filing fee, if any.

1. Appellant is Tom Benson; appellee is The State of Texas.

2. No rule provides a deadline to file this motion for the relief requested.

3. Appellant timely filed a Notice of Appeal in this Court. Appellant also

timely filed a supersedeas bond to suspend enforcement of the judgment entered by

APPELLANT'S MOTION TO DETERMINE PROPER DESIGNATION OF CASE AND APPROPRIATE APPELLATE FILING FEE PAGE l OF 5 the trial court on the State of Texas' Motion for Summary Judgment; requested the

clerk's record.

4. The clerk of this court filed this case under the designation "CV" which

is the designation given a civil case.

5. The clerk has erred in filing this case as a civil case with the designation

"CV".

6. It is firmly settled law that a criminal bail bond forfoiture proceeding is

a criminal case, not a civil case, with final appellate jurisdiction vested with the Court

of Criminal Appeals. Safety National Casualty Corporation (Agent Michael W. Cox)

v. State o.f Texas, 305 S.W.3d 586, 588 (Tex. Crim. App. 2010) ("Safety National 2").

The First Court of Appeals was faced with this exact case designation

issue in Safety National Casualty Corporation (Agent Michael W. Cox) v. State of

Texas, 273 S.W.3d 730, 731-732 (Tex. App. - Houston [1" Dist.] 2008) (Safety

National I"), reversed on other grounds, Safety National Casualty Corporation

(Agent.Michael W. Cox) v. State o[Texas, 305 S.W.3d 586 (Tex. Crim. App. 2010)

("Safety National 2") and determined that "CR" is the correct case designation.

7. Appellant requests the Court to amend the case designation in this case

from "CV" to "CR".

APPELLANf'S MOTION TO DETERMINE PROPER DESIGNATION OF CASE AND APPROPRIATE APPELLATE FILING FEE PAGE2 OF5 8. The clerk by letter requested appellant to pay the $195.00 filing fee

assessed on civil cases filed in this court by March 6, 2015 or this appeal will be

dismissed. This demand has raised the issue of the proper filing fee due if any in this

case and the proper case designation.

9. This fee issue is also settled by Safety National 2 and this Court's own

fee schedule. The Court's fee schedule is published as Item No. 18 in the

Practice Before the Court page on the internet at

"http://www.txcourts.gov/3rdcoa/practice-before-the-court.aspx".

10. In Safety National 2 the Court of Criminal Appeals held stated that "[W]e

conclude that the current version, Article 44.44, Texas Code of Criminal Procedure,

also excludes the application of civil-case fees by the court of appeals in appeals from

criminal bond-forfeiture proceedings." Safety National 2, 305 S.W.3d 586 at 590.

11. None of the statutory authority cited in Safety National 1, Safety National

2 or this Court's fee schedule have been amended, or amended in a way that alters the

holding in Safety National 2 and it remains binding on this court These are: Texas

Code of Criminal Procedure art. 44.42 and 44.44; Texas Government Code Sections

51.005, 51.0051, 51.207, 51.208, 51.851, 51.852, 51.941 and 552.262; Rule 13.3(g)

APPELLANT'S MOTION TO DETERMINE PROPER DESIGNATION OF CASE AND APPROPRIATE APPELLATE FILING FEE PAGE3 OF 5 Rules of Judicial Administration; I Tex. Adm. Code 70.3 and Texas Supreme Court

Misc. Docket No. 13-9127 dated August 16, 2013.

12. The Court is requested to direct the Clerk to only assess fees that are

authorized for the filing of criminal cases, if any, against appellant and to reverse or

refund any civil filing fee collected under protest.

RELIEF REQUESTED

Appellant requests the Court to direct the Clerk of this Court to amend the

designation of this case from "CV" to "CR" and to also direct the Clerk to assess

against appellant filing fees that are assessable upon the filing of a criminal case, if

any and for such other relief to which appellant has shown itself entitled.

Respectfully submitted,

Isl Tom Benson --------------- Tom Benson, Prose 900 Jackson Street, Suite 750 Dallas, Texas 752202 Texas Bar I.D. 02170500 (214) 742-9898 tomrbenson@gmail.com

APPELLANT'S MOTION TO DETERMfNE PROPER DES!GNAT!ON OF CASE AND APPROPRIATE APPELLATE FILING FEE PAGE40F5 Certificate of Conference

I certify that on .March 5, 2015 after 5:00 P.M., I attempted to communicate with

Tim Labadie, Assistant Travis County Attorney by email to:

tim.labadie@traviscountytx.gov, but there has been insufficient time for him to

respond to my communication before I had to file this motion to meet the clerk's

deadline. I assume the State will oppose the relief requested.

Isl Tom Benson

Tom Benson

CERTIFICATE OF SERVICE

I certify that l have on this 5th day of January, 2015, after 5 :00 P.M., caused a true and correct copy of the foregoing Appellant's Motion to DETERMINE PROPER DESIGNATION OF CASE AND APPROPRIATE APPELLATE FILING FEE to be delivered to Tim Labadie, Assistant Travis County Attorney by email to: tim.labadie@traviscountytx.gov.

APPELLANT'S MOTION TO DETERMINE PROPER DESIGNATION OF CASE AND APPROPRIATE APPELLATE FILING FEE PAGE5 OPS