Court of Appeals of Texas, Fourth District, San Antonio
IN RE STATE OF TEXAS, ex. rel. Todd "Tadeo" Durden, County Attorney
Original Mandamus Proceeding. 
Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez,
Justice Liza A. Rodriguez, Justice
C. MARTINEZ, JUSTICE
filed a petition for writ of mandamus in which it raised two
complaints. First, relator asserts the Honorable Enrique
Fernandez abused his discretion by denying an indigent
criminal defendant's motion to withdraw from the court
registry all of the fines and court costs she paid after the
criminal charges against her had been dismissed. Relator
contends the trial court allowed defendant Maria Villarreal
Cervantez to withdraw only $500.00 of the total $897.00 she
paid. Second, relator asserts the Honorable James T. Shahan
abuses his discretion by imposing fines and court costs on
criminal defendants prior to conducting a hearing on whether
to accept a plea bargain and formally pronouncing sentence.
As to this second complaint, relator asserts that under a
so-called "Pay-to-Plea" policy, a criminal
defendant is permitted to enter a plea and begin the terms of
community supervision only after the defendant has paid all
fines and court costs.
OF FINES AND COURT COSTS
Villarreal Cervantez paid $397.00 in court costs and $500.00
towards a fine. When the charges against her were later
dismissed, Ms. Cervantez's attorney filed a motion to
withdraw the total amount of $897.00 on deposit in the
court's registry. On January 24, 2019, Judge Fernandez
signed an "Order to Release" only $500.00 to Ms.
Cervantez. In its petition for writ of mandamus, relator
asked this court to direct Judge Fernandez to issue
"such orders as are necessary to reverse the payment of
court costs made pursuant to his January 24, 2019 order, so
as to return and restore unto Maria [Villareal Cervantez] the
remainder of the money deposited by her with the District and
County Clerk in its entirety."
Fernandez filed a response to the petition in which he
explained the circumstances under which he ruled to refund
amounts deposited by Ms. Cervantez less court
costs. Judge Fernandez stated in his response
that he would rescind his January 24, 2019 "Order to
Release Funds" and enter an order directing that Ms.
Cervantez be refunded all funds on deposit in her underlying
cause. Alternatively, because Judge Fernandez is concerned he
may lack jurisdiction over the cause, Judge Fernandez stated
he "would not oppose an order of mandamus . . .
directing him to enter such an order." Accordingly, on
this issue, we conditionally grant the petition for writ of
next complains that, under the so-called
"Pay-to-Plea" policy, a criminal defendant is
allowed to enter a plea and begin community supervision only
after the defendant has fully paid any fines and courts
costs. Relator asks this court to issue a writ of mandamus
"(i) directing Judge Shahan to vacate his letter ruling
of September 28, 2018,  requiring the District and County Clerk
to maintain possession of the Pay to Plea funds; [and] (ii)
directing Judge Shahan to make and issue such orders as are
necessary to reverse, return and restore all pre-payments of
fines, fees and court costs to the parties in the associated
cases . . . ."
party in interest, Kinney County, filed a motion to dismiss
on several grounds, one of which is that relator's
complaint about the alleged "Pay-to-Plea" policy is
now moot based on Judge Shahan's June 18, 2019 "Sua
Sponte Findings and Order Regarding Funds Deposited Prior to
Plea" (the "June 18 Order"). In the June 18
Order, Judge Shahan concedes "it is inappropriate under
applicable law for the Clerk of this Court to receive,
receipt or hold [fees, fines and costs] [and the trial court]
is of the opinion that fees, fines and costs may only be
collected after entry of a conviction of criminal charges
asserted against an individual." Judge Shahan then
ordered the court Clerk and/or the Kinney County Treasurer to
take certain specific steps to return the deposited funds to
receipt of Kinney County's motion to dismiss, relator
filed a response in which it raised several new arguments.
First, relator asked this court to direct Judge Fernandez to
"make and issue such orders and local rules of
administration as are necessary to reverse the payment of
court costs . . . made after the issuance of his Order of
January 24, 2019; eliminate the 'Pay-to-Plea'
policies in their entirety; and return the pre-payments of
fines, fees and court costs wrongfully made or taken under
the 'Pay-to-Plea' policy." The only order signed
by Judge Fernandez at issue in this original proceeding is
the January 24, 2019 "Order to Release Funds,"
which, as explained above, Judge Fernandez has stated he does
not oppose vacating.
the so-called "Pay-to-Plea" policy, relator asked
this court to vacate the June 18 Order on the grounds that it
is void for a variety of reasons that have no
merit. Relator also complains the June 18 Order
does not address a determination of all persons to whom
monies are owed or who have funds on deposit, the reversal of
court costs charged upon dismissal, refunds if the funds are
no longer on deposit with the Clerk, and reconciliation of
new records created with an audited financial report. We
decline relator's request to compel Judge Shahan or any
other judge in Kinney County to develop new policies or local
rules of administration. See In re Mahindra, USA
Inc., 549 S.W.3d 541, 545 (Tex. 2018) (orig. proceeding)
(writ of mandamus is an appropriate remedy to correct the
court's abuse of discretion). To the extent the
directions to the Clerk and Kinney County Treasurer contained
in the June 18 Order are inadequate to address the return of
all funds that Judge Shahan concedes are "inappropriate
under applicable law," we are confident Judge Shahan
will take all necessary steps to identify any person who paid
the fines and court costs in violation of applicable laws and
return those funds.
we disagree with relator's argument that the question of
mootness should be decided by Judge Fernandez upon remand.
Relator complains about a specific policy, which has now been
eliminated. We are confident that any policy requiring a
defendant to fully pay any fines and courts costs before
being allowed to enter a plea and begin community supervision
is no longer in practice in Kinney County. See Heckman v.
Williamson County, 369 S.W.3d 137, 167 (Tex. 2012)
(plaintiff's challenge to a statute or written policy may
become moot if the statute or policy is repealed or
reviewing the record, we agree that Judge Shahan's
"Sua Sponte Findings and Order Regarding Funds Deposited
Prior to Plea" moots the complaints about the so-called
"Pay-to-Plea" policy raised in the petition for
writ of mandamus. See Nat'l Collegiate Athletic
Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999)
("Appellate courts are prohibited from deciding moot
controversies . . . . A case becomes moot if at any stage
there ceases to be an actual controversy between the
parties." (internal citations omitted)); Holcombe v.
Fowler, 118 Tex. 42, 9 S.W.2d 1028, 1028 (1928) (orig.
proceeding) ("The rule is an elementary one that a writ
of mandamus will not issue if for any reason it would be
useless or unavailing."); see also In re
Resendez, 04-19-00100-CR, 2019 WL 1779846, at *1 (Tex.
App.-San Antonio ...