Opinion issued June 18, 2012.

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-11-00315-CV

———————————

ADRIAN GARCIA, IN HIS OFFICIAL CAPACITY AS HARRIS COUNTY 

SHERIFF, AND GREG ABBOTT, IN HIS OFFICIAL CAPACITY AS 

ATTORNEY GENERAL OF TEXAS, Appellants

V.

FELIX MICHAEL KUBOSH AND CARL R. PRUETT, Appellees

On Appeal from the 127th District

Harris County, Texas

Trial Court Case No. 2009-82195

OPINION

Felix Michael Kubosh and Carl R. Pruett, both bail bondsmen, sued Harris 

County Sheriff Adrian Garcia and Texas Attorney General Greg Abbott, 
2

challenging the constitutionality of a statutorily-imposed fee on sureties who post 

bail bonds. After the trial court dismissed their original lawsuit for want of 

prosecution, the bondsmen initiated the bill of review proceeding from which this 

interlocutory appeal arises.1The Sheriff and Attorney General contend the trial 

court lacks jurisdiction over the bill of review proceeding because (1) the 

bondsmen failed to make a prima facie showing of a meritorious claim in their bill 

of review petition and (2) the doctrines of standing and sovereign immunity bar the 

bondsmen’s claim. We reverse and remand with instructions that the bondsmen’s 

surviving claim be dismissed for want of jurisdiction.

Background

Section 41.258 of the Government Code requires all sureties posting a bail 

bond to pay a fee of $15 per bond, not to exceed $30 for all bail bonds posted for 

one individual at one time.2TEX. GOV’T CODE ANN. § 41.258 (West 2011). The 

 

1

See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2011) 

(permitting interlocutory appeal from order granting or denying plea to jurisdiction 

filed by governmental unit).

2 A “bail bond” is a “written undertaking entered into by the defendant and the 

defendant’s sureties for the appearance of the principal therein before a court or 

magistrate to answer a criminal accusation; provided, however, that the defendant 

on execution of the bail bond may deposit with the custodian of funds of the court 

in which the prosecution is pending current money of the United States in the 

amount of the bond in lieu of having sureties signing the same.” TEX. CODE CRIM.

PROC. ANN. art. 17.02 (West Supp. 2011). A “surety bond” is a written 

undertaking entered into by an individual or business other than the accused for 

the satisfaction of the bond amount if the accused fails to appear. See id. arts. 

17.02, 17.09, 17.11; see also TEX. OCC. CODE ANN. § 1704.001(2) (West 2011). 
3

$15 fee applies to all offenses except class C misdemeanors, which are punishable 

by fine only. Id. § 41.258(b). The $15 fee is refundable if the state declines to 

prosecute or the grand jury fails to indict the individual. Id. § 41.258(f). The court, 

judge, magistrate, peace officer, or other officer imposing the bail bond is 

responsible for collecting the $15 fee, which is initially deposited into the county 

treasury. Id. § 41.258(b), (c). The funds collected by the counties are sent to the 

Comptroller on a quarterly basis, with each county being allowed to retain ten 

percent of its funds and all of the interest on its funds. Id. § 41.258(e)(2), (g). 

The Comptroller then deposits two-thirds of the funds into the “assistant 

prosecutor supplement fund” and one-third of the funds into the “fair defense 

account.” Id § 41.258 (i). The “assistant prosecutor supplement fund” provides 

longevity salary supplements for eligible felony prosecutors; the “fair defense 

account” funds the Texas Indigent Defense Commission and the Office of Capital 

Writs. See TEX. GOV’T CODE ANN. § 41.255 (West 2011) (describing assistant 

prosecutor supplement fund); TEX. GOV’T CODE ANN. § 79.031 (West Supp. 2011) 

(describing fair defense account). At the end of each fiscal year, the Comptroller 

may transfer any unexpended amounts in excess of $1.5 million to the general 

revenue fund. Id. § 41.258(j). 

In their original lawsuit, the bondsmen and a former criminal defendant, 
4

Daisy Howard,3challenged section 41.258 on federal and state constitutional 

grounds, requesting declaratory and injunctive relief. After more than three years 

of inactivity, the trial court dismissed the suit for want of prosecution. The 

bondsmen did not seek a new trial or appeal the dismissal order. Instead, they 

timely petitioned the trial court for a bill of review, alleging that they did not 

receive notice of the dismissal hearing. In the bill of review proceeding, the 

bondsmen again sought declaratory and injunctive relief, alleging violations of (1) 

their federal constitutional rights to freedom to petition and speak, equal protection 

and due process of law, and protection against excessive bail and (2) their state 

constitutional rights to open courts and protection against excessive bail, equal 

rights and due course of law, and (3) separation of powers.4

In a combined summary judgment motion and plea to the jurisdiction, the 

Sheriff and Attorney General sought the dismissal of the case for lack of standing 

and the failure to state a claim as a matter of law. The trial court denied the 

 

3 We reference Howard and her claims for context alone. Howard satisfied the terms 

of her deferred adjudication during the pendency of the underlying lawsuit, 

thereby negating her status as a criminal defendant. Howard has not appealed the 

dismissal of her claims for lack of standing. 

4

The bondsmen further alleged that the $15 fee constitutes an unconstitutional 

occupation tax under the Texas Constitution, but they have abandoned that claim 

on appeal.
5

combined motion with respect to the bondsmen’s due process claim5and granted 

the motion “in all other respects.” Specifically, the trial court determined that 

Howard, who was not obligated to pay the $15 fee, had no standing to challenge 

the fee’s constitutionality, and the bondsmen did not have “third party” standing to 

challenge the fee on behalf of Howard and other criminal defendants. The trial 

court then observed that the bondsmen had only one claim based on traditional, 

rather than “third party,” standing: “a claim under the Texas and U.S. Constitutions 

that they were being deprived of their tangible property—the $15 [fee]—without 

due course or process of law by operation of the statute.” The trial court denied the 

combined motion with respect to this claim only:

[The Sheriff and Attorney General’s] Motion is DENIED with respect 

to [the bondsmen’s] claims for deprivation of property without due 

course or due process of the law. This Court DECLINES to rule on 

[the bondsmen’s] claim that [the $15 fee] constitutes an 

unconstitutional occupation tax under Art. III [sic] § 3 and Art. VIII § 

2 of the Texas Constitution. [The Sheriff and Attorney General’s] 

Motion is GRANTED in all other respects.

The Sheriff and Attorney General appeal the trial court’s denial of their 

jurisdictional challenge to the bondsmen’s due process claim;6the bondsmen do 

 

5

The trial court also denied the combined motion with respect to the bondsmen’s 

occupation tax claim. We need not address that claim here because the bondsmen 

have abandoned it.

6

The Sheriff and Attorney General also appealed the trial court’s denial of their 

jurisdiction challenge to the bondsmen’s occupation tax claim, but the bondsmen 

abandoned that claim on appeal.
6

not appeal the trial court’s dismissal of their remaining claims. 

Interlocutory Jurisdiction

The Sheriff and Attorney General challenge the trial court’s jurisdiction on 

two grounds: standing and sovereign immunity. As preliminary matter, we must 

determine whether we have interlocutory jurisdiction7over the sovereignimmunity-based challenge, which was not considered by the trial court and is not 

the subject of the trial court’s appealed-from order.

8

Section 51.014(a)(8) of the Civil Practices and Remedies Code grants this 

Court interlocutory jurisdiction over “an interlocutory order of a district court” that 

“grants or denies a [governmental unit’s] plea to the jurisdiction.” TEX. CIV. PRAC.

 

7 Generally, appellate courts only have jurisdiction to review a trial court’s rulings 

after entry of a judgment finally disposing of the case. Lehmann v. Har–Con 

Corp., 39 S.W.3d 191, 195 (Tex. 2001); Stary v. DeBord, 967 S.W.2d 352, 352–

53 (Tex. 1998). Interlocutory appellate jurisdiction is an exception to this general 

rule; it enables us to review a trial court’s ruling while the case is still pending 

before the trial court. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 

840−41 (Tex. 2007). We have interlocutory jurisdiction only when the Legislature 

authorizes it. Id. We review the legislative grants of interlocutory jurisdiction 

strictly to affect the Legislature’s intent that such statutes create “a narrow 

exception to the general rule that only final judgments are appealable.” Id. (citing 

Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001)).

8

The Sheriff and Attorney General initially raised the issue of sovereign immunity 

in a combined plea to the jurisdiction and motion for summary judgment filed on 

October 1, 2010. After the Sheriff and the Attorney General filed their combined 

motion, the bondsmen amended their pleadings. The Sheriff and Attorney General 

filed a second, combined jurisdictional plea and summary judgment motion on 

February 25, 2011, which did not include any argument regarding sovereign 

immunity. The trial court ruled on the second motion and thus did not decide the 

sovereign immunity issue. 
7

& REM. CODE ANN. § 51.014(a)(8) (West Supp. 2011). This Court has interpreted 

section 51.014(a)(8) as granting interlocutory jurisdiction over newly-raised 

challenges to a trial court’s subject-matter jurisdiction over the case in which the 

appealed-from order was issued. Harris Cnty. Mun. Util. Dist. No. 156 v. United 

Somerset Corp., 274 S.W.3d 133, 137 (Tex. App.—Houston [1st Dist.] 2008, no 

pet.) (observing that challenges to subject-matter jurisdiction generally may be 

raised for the first time on appeal). Thus, in this interlocutory appeal, we consider 

the Sheriff and Attorney General’s contention that sovereign immunity from suit 

deprives the trial court of subject-matter jurisdiction over the bondsmen’s 

surviving claim. Because our holding on this issue is dispositive, we do not reach 

the issue of standing.

Standard of Review

Subject-matter jurisdiction is essential to the authority of a court to decide a 

case and is never presumed. Tex. Ass’n of Bus., 852 S.W.2d at 443−44; Austin & 

N.W.R. Co. v. Cluck, 77 S.W. 403, 405 (Tex. 1903) (“[T]here can be no doubt that 

the courts of Texas must look to the Constitution of this state, the enactments of 

the Legislature, and the common law for their authority to proceed[.]”). The 

existence of subject-matter jurisdiction is a question of law, which we must decide 

de novo. See State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 

327 (Tex. 2002). 
8

When, as here, the jurisdictional challenge is to the pleadings, “we 

determine if the pleader has alleged facts that affirmatively demonstrate the court’s 

jurisdiction to hear the cause.” Miranda, 133 S.W.3d at 226; see also State v. 

Holland, 221 S.W.3d 639, 642 (Tex. 2007) (instructing courts to first review “the 

plaintiff’s petition to determine whether the facts pled affirmatively demonstrate 

that jurisdiction exists”); Tex. Ass’n of Bus., 852 S.W.2d at 446 (explaining that 

plaintiff has burden to allege facts affirmatively demonstrating trial court’s subjectmatter jurisdiction). We construe the pleadings liberally, looking to the pleader’s 

intent. Villareal v. Harris Cnty., 226 S.W.3d 537, 541 (Tex. App.—Houston [1st 

Dist.] 2006, no pet.). If the pleadings lack sufficient facts to affirmatively 

demonstrate the trial court’s jurisdiction but do not reveal incurable jurisdictional 

defects, courts should afford the plaintiff an opportunity to re-plead. Miranda, 133 

S.W.3d at 22627. Conversely, if the pleadings affirmatively negate the existence 

of jurisdiction, then the plea should be sustained and the cause dismissed without 

an opportunity to re-plead. Id. at 227; see also Harris Cnty. v. Sykes, 136 S.W.3d 

635, 639 (Tex. 2004) (“A trial court must grant a plea to the jurisdiction . . . when 

the pleadings do not state a cause of action upon which the trial court has 

jurisdiction.”).

Immunity from Suit

Under the doctrine of sovereign immunity, parties may not sue the sovereign 
9

without its consent. See Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006).

“Although this rule was originally justified by the fiction that ‘the king can do no 

wrong,’ in modern times its ‘purpose is pragmatic: to shield the public from the 

costs and consequences of improvident actions of their governments[.]’” City of 

Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011) (citations omitted).

Sovereign immunity has two components: (1) immunity from suit, which deprives 

a trial court of subject-matter jurisdiction over a suit to which the State has not 

consented, and (2) immunity from liability, which protects the State from 

judgments against it even when it has consented to suit. See City of Dallas v. 

Albert, 354 S.W.3d 368, 373 (Tex. 2011); Fed. Sign v. Tex. S. Univ., 951 S.W.2d 

401, 405 (Tex. 1997), superseded by statute on other grounds as stated in Gen. 

Servs. Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 593 (Tex. 2001). 

Because immunity from suit defeats a trial court’s subject-matter jurisdiction, it is 

properly asserted in a plea to the jurisdiction. See id.; City of Houston v. Gunn, No. 

01-11-00034-CV, 2011 WL 6938539, at *1 (Tex. App.—Houston [1st Dist.] Dec. 

29, 2011, no pet.). Unlike immunity from suit, however, immunity from liability 

does not affect a court’s jurisdiction to hear a case and cannot be raised in a plea to 

the jurisdiction. See Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638−39 (Tex. 

1999); see also Miranda, 133 S.W.3d at 224. 

“Governmental immunity operates like sovereign immunity to afford similar 
10

protection to subdivisions of the State, including counties[.]” Sykes, 136 S.W.3d at 

638. Public officials sued in their official capacities, like the Sheriff and Attorney 

General, are protected by the same sovereign or governmental immunity as the 

governmental unit they represent. See Tex. A & M Univ. Sys. v. Koseoglu, 233 

S.W.3d 835, 84344 (Tex. 2007) (holding that “an official sued in his official 

capacity would assert sovereign immunity[,]” and that “[w]hen a state official files 

a plea to the jurisdiction, the official is invoking the sovereign immunity from suit 

held by the government itself”); see also Morris v. Copeland, 944 S.W.2d 696, 

698−99 (Tex. App.—Corpus Christi 1997, no pet.) (holding that suit against sheriff 

in his official capacity was suit against county and both were immune from suit by 

virtue of governmental immunity). 

A. The State has waived its immunity from suits seeking equitable relief 

for violations of constitutional rights

By their due process claim, the bondsmen seek declaratory and injunctive 

relief from all state action to collect section 41.258’s $15 fee. The only monetary 

award the bondsmen seek is attorney’s fees under the declaratory judgment statute. 

Texas law generally does not shield state officials from suits for equitable 

relief for a violation of constitutional rights. See City of El Paso v. Heinrich, 284 

S.W.3d 366, 373 n.6 (Tex. 2009) (explaining that State has waived sovereign 

immunity for suits seeking declarations regarding validity of statutes); City of Elsa 

v. M.A.L., 226 S.W.3d 390, 391−92 (Tex. 2007) (concluding that suit for injunctive 
11

relief stemming from alleged constitutional violations may be filed against 

governmental entity); City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 

1995) (distinguishing between suits seeking to declare statute unconstitutional and 

suits seeking damages as remedy for allegedly unconstitutional act, and concluding 

that only second type of suit is impermissible); see also Tex. Dep’t of State Health 

Servs. v. Holmes, 294 S.W.3d 328, 334−36 (Tex. App.—Austin 2009, pet. denied) 

(observing that “private parties may seek declaratory relief against state officials 

who are acting pursuant to an allegedly unconstitutional law”). But the bondsmen’s 

request for declaratory relief “does not enlarge a court’s jurisdiction; it is a 

procedural device for deciding cases already within a court’s jurisdiction.” City of 

Paris v. Abbott, 360 S.W.3d 567, 577 (Tex. App.—Texarkana 2011, pet. denied); 

see also City of El Paso v. Heinrich, 284 S.W.3d 366, 370−71 (Tex. 2009) (“[A] 

litigant’s request for declaratory relief does not alter a suit’s underlying nature. It is 

well settled that private parties cannot circumvent the State’s sovereign immunity 

from suit by characterizing a suit for money damages . . . as a declaratoryjudgment claim.”) (quotation omitted). 

B. To rely on the waiver, the bondsmen must plead a facially valid 

constitutional claim

The Sheriff and Attorney General urge us to hold that the waiver of 

sovereign immunity for constitutional claims does not apply to this case because 

the bondsmen failed to plead a viable due process claim. While we are mindful that 
12

a plea to the jurisdiction “does not authorize an inquiry so far into the substance of 

the claims presented that the [bondsmen] are required to put on their case simply to 

establish jurisdiction[,]” the bondsmen need do more than merely name a cause of 

action and assert the existence of a constitutional violation. See generally Andrade 

v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex. 2011) (considering substance of 

equal-protection claim against Secretary of State in reviewing ruling on plea to 

jurisdiction and explaining that Secretary retained immunity from suit unless 

plaintiffs pleaded “viable claim”); Dir. of Dept. of Agric. & Env’t v. Printing 

Indus. Assoc. of Tex., 600 S.W.2d 264, 265 (Tex. 1980) (rejecting lower court’s 

conclusion that plaintiff need only plead existence of invasion of rights to bring 

suit against governmental defendant); Abbott, 360 S.W.3d at 583 (noting that 

governmental defendant remains immune from suit absent plaintiff’s pleading of 

viable claim). To state a claim within the waiver of sovereign immunity, the 

bondsmen must plead a facially valid constitutional claim. See Andrade, 345 

S.W.3d at 11; City of Houston v. Johnson, 353 S.W.3d 499, 504 (Tex. App.—

Houston [14th Dist.] 2011, no pet.) (noting that trial court must grant political 

subdivision’s plea to jurisdiction if plaintiff’s constitutional claim is facially 

invalid); Dewhurst v. Hendee, 253 S.W.3d 320, 338 (Tex. App.—Austin 2008, pet. 

denied) (concluding that trial court properly granted jurisdictional plea because 

conduct alleged by plaintiff did not constitute violation of constitutional limitations 
13

on appropriations of state tax revenues); City of Dallas v. Blanton, 200 S.W.3d 

266, 272 (Tex. App.—Dallas 2006, no pet.) (holding that City’s sovereign 

immunity was not waived by plaintiffs allegation of invalid constitutional takings 

claim); cf. Little-Tex Insulation Co., 39 S.W.3d at 599 (holding that trial court did 

not error by dismissing takings claims for want of jurisdiction because plaintiff 

failed to allege that state university’s withholding of payments from building 

contractor amounted to “anything other than its colorable contract rights”).

C. The bondsmen have not pleaded a facially valid constitutional claim 

Both the federal and state constitutions guarantee due process of law. See 

U.S. CONST. amend. XIV, § 1 (“[N]or shall any State deprive any person of life, 

liberty, or property, without due process of law”); TEX. CONST. art. I, § 19 (“No 

citizen of this State shall be deprived of life, liberty, property, privileges, or 

immunities, or in any manner disfranchised, except by the due course of the law of 

the land.”).9 Although due process of law involves both procedural and substantive 

guarantees, see, e.g., Pickett v. Tex. Mut. Ins. Co., 239 S.W.3d 826, 834 (Tex. 

App.—Austin 2007, no pet.), the bondsmen stated during oral argument before this 

 

9

The due-process guarantees in the United States and Texas Constitutions are 

textually different, but we apply the same analysis to both claims. See Univ. of 

Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (explaining 

that although Texas Constitution refers to “due course” rather than U.S. 

Constitution’s “due process,” the phrases are not meaningfully distinct and federal 

interpretations of due process are persuasive authority when interpreting Texas’s 

“due course” guarantee).
14

Court that they are not pursuing a procedural due process claim. Accordingly, we 

limit our discussion to issues of substantive due process. 

1. The bondsmen’s surviving claim is limited to a due process claim 

for deprivation of property

With respect to substantive due process, the parties dispute the scope of the 

bondsmen’s surviving claim. Substantive due process protects against the arbitrary 

and oppressive exercise of government power over a person’s life, liberty, or 

property, regardless of the fairness of the procedures used to implement the 

government action. See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845−46, 118 

S. Ct. 1708, 1716 (1998) (noting that government acts arbitrarily when it exercises 

power without any reasonable justification in service of legitimate governmental 

objective); Tex. Workers’ Comp. Comm’n v. Patient Advocates of Tex., 136 

S.W.3d 643, 659 (Tex. 2004). The “liberty” protected by due process “includes 

more than the absence of physical restraint.” Washington v. Glucksberg, 521 U.S. 

702, 719, 117 S. Ct. 2258, 2267 (1997). Due process “provides heightened 

protection against government interference with certain fundamental rights and 

liberty interests.” Id. at 720, 117 S.Ct. at 2267.

According to the bondsmen, their surviving due process claim incorporates 

violations of their fundamental rights and liberty interests set forth in (1) the First 

Amendment of the United States Constitution, as applied to state action through 

the Fourteenth Amendment’s due process clause, and (2) sections 8, 11, 13, and 27 
15

of the Texas Bill of Rights, as applied through the due process clause in Fourteenth 

Amendment of the United States Constitution and the due process clause in article 

I, section 19 of the Texas Constitution.

10 The Sheriff and Attorney General, 

however, contend that the trial court dismissed all claims for the deprivation of 

liberty interests, leaving only the bondsmen’s complaint regarding the deprivation 

of a property interest. Applying the same rules of interpretation as we would apply 

to ascertain the meaning of other written instruments, we conclude the Sheriff and 

Attorney General accurately state the scope of the trial court’s order. See Lone Star 

Cement Corp. v. Fair, 467 S.W.2d 402, 40405 (Tex. 1971) (“The same rules of 

interpretation apply in construing the meaning of a court order of judgment as in 

ascertaining the meaning of other written instruments. The entire contents of the 

 

10 See U.S. CONST. amend I (“Congress shall make no law . . . abridging the freedom 

of speech . . . or the right of the people . . . to petition the Government for a redress 

of grievances.”); U.S. CONST. amend XIV (“[N]or shall any State deprive any 

person of life, liberty, or property, without due process of law[.]”); TEX. CONST. 

art. I, § 8 (“Every person shall be at liberty to speak, write or publish his opinions 

on any subject[.]”); TEX. CONST. art. I, § 11 (“All prisoners shall be bailable by 

sufficient sureties, . . . .”); TEX. CONST. art. I, § 13 (“All courts shall be open, and 

every person for an injury done him, in his lands, goods, person or reputation, 

shall have remedy by due course of law.”); TEX. CONST. art. I, § 19 (”No citizen of 

this State shall be deprived of life, liberty, property, privileges or immunities, or in 

any manner disfranchised, except by the due course of the law of the land.”); TEX.

CONST. art. I, § 27 (“The citizens shall have the right . . . [to] apply to those 

invested with the powers of government for redress of grievances or other 

purposes, by petition, address or remonstrance.”); see also TEX. CONST. art. I, § 29 

(“To guard against transgressions of the high powers herein delegated, we declare 

that everything in this ‘Bill of Rights’ is excepted out of the general powers of 

government, and shall forever remain inviolate, and all laws contrary thereto, or to 

the following provisions, shall be void.”).
16

instrument and record should be considered. The judgment is to be read as a

whole.”); see also Envtl. Procedures, Inc. v. Guidry, 282 S.W.3d 602, 621 n.23 

(Tex. App.—Houston [14th Dist.] 2009, pet. denied) (op. on reh’g); Mai v. State, 

189 S.W.3d 316, 320 (Tex. App.—Fort Worth 2006, pet. ref’d).

The trial court’s order recites that the trial court considered “all claims 

made” in the bondsmen’s live pleading and consists of ten pages of detailed 

analysis. The relief requested in the motion on which the trial court entered its 

order was dismissal of all claims in the case, whether pleaded individually or on 

behalf of third parties. And no party disputes that the trial court dismissed all 

claims asserting the interests of third parties, here, the criminal defendants for 

whom the bondsmen write bonds. In the order, the trial court held that the 

bondsmen lacked third party standing and then expressly stated that the bondsmen 

had “only one claim” that rested on traditional, rather than third party, standing. 

The trial court defined this claim as “a claim under the Texas and U.S. 

Constitutions that [the bondsmen] were being deprived of their tangible property—

$15 per bail bond—without due course or process of law by operation of the 

statute.” It then denied the Sheriff and Attorney General’s request for dismissal of 

the bondsmen’s “claims for deprivation of property without due course or due 
17

process of law” and granted the request “in all other aspects.”11

Thus, twice in its order the trial court defined the bondsmen’s sole surviving 

claim as a claim for the deprivation of a property interest: (1) once as a part of its 

reasoning and (2) again in its holding. Considering this plain language, we 

conclude that the bondsmen’s claims for incorporation of fundamental liberty 

interests through the due process guarantees in the federal and state constitutions 

did not survive the trial court’s ruling—which the bondsmen did not appeal—but 

were instead disposed of in that part of the order granting the Sheriff and Attorney 

General’s combined motion “in all other respects.” The bondsmen’s only surviving 

due process claim is a claim for deprivation of the “$15 per bail bond” as a 

tangible property interest. 

2. The Bondsmen have not pleaded a facially valid due process claim 

for deprivation of property

Having determined the scope of the surviving due process claim, we now 

turn to the bondsmen’s due process pleadings. The bondsmen generally allege that 

the $15 fee is constitutionally infirm because the bondsmen “lose the money that 

they pay as this fee/cost” and are thus deprived of “a tangible property interest”—

i.e., their bail bonding business suffers economic loss by the State’s imposition of 

the $15 fee. The bondsmen further complain that the $15 fee is used unlawfully to 

 

11 As previously noted, the trial court also declined to rule on the bondsmen’s 

occupation tax claim, which the bondsmen have abandoned on appeal.
18

fund prosecutor longevity pay and indigent defense; according to them, the 

revenue generated can only be used lawfully for the administration of bail bond 

programs. 

Certainly, the Legislature does not unconstitutionally deprive a person of 

property every time it imposes a fee on individuals doing business with the State of 

Texas. The bondsmen do not explain why—or cite to any authority establishing 

that—this particular fee unconstitutionally burdens their property interests. 

Without such explanation of why the imposition of the $15 fee rises to the level of 

a constitutional violation, the bondsmen have not pleaded a facially valid due 

process claim. And, it does not appear to us that this is a pleading defect that the 

bondsmen can cure by amending the petition to allege additional facts.

The $15 fee imposed by section 41.258 is a cost of doing business as a 

surety who writes bail bonds on behalf of criminal defendants in this state. 

According to the bondsmen, the $15 fee decreases the income generated by their 

business. At the time it enacted section 41.258, the Legislature imposed the fee 

prospectively only; thus, the Legislature did not deprive the bondsmen of any 

income previously generated. See TEX. GOV’T CODE ANN. § 41.258. And the $15 

fee does not necessarily impact the bondsmen’s bottom-line—the statute does not 

prohibit them from passing the fee along to their clients. Indeed, some bondsmen 

do pass the fee along to their clients, while others—apparently believing they 
19

receive some competitive advantage in not doing so—bear the expense themselves. 

The United States Supreme Court has abandoned the sweeping protection of 

economic rights through substantive due process. See, e.g., Ferguson v. Skrupa, 

372 U.S. 726, 730, 83 S. Ct. 1028, 1031 (1963) (“[T]hat due process authorizes 

courts to hold laws unconstitutional when they believe the legislature has acted 

unwisely [ ] has long since been discarded.”); Williamson v. Lee Optical, 348 U.S. 

483, 488, 75 S. Ct. 461, 464−65 (1955) (“The day is gone when this Court uses the 

Due Process Clause of the Fourteenth Amendment to strike down state laws, 

regulatory of business and industrial conditions, because they may be unwise, 

improvident, or out of harmony with a particular school of thought. . . . ‘For 

protection against abuses by legislatures the people must resort to the polls, not to 

the courts.’”) (citations omitted). Today, we presume economic regulations are 

constitutional; we apply a “rational basis” test, under which the party challenging 

the statute’s constitutionality must show that the Legislature acted arbitrarily and 

irrationally in enacting the statute. See Usery v. Turner Elkhorn Mining Co., 428 

U.S. 1, 15, 96 S. Ct. 2882, 2892 (1976) (“It is by now well established that 

legislative Acts adjusting the burdens and benefits of economic life come to the 

Court with a presumption of constitutionality, and that the burden is on one 

complaining of a due process violation to establish that the legislature has acted in 

an arbitrary and irrational way.”); Barshop v. Medina Cnty. Underground Water 
20

Conservation Dist., 925 S.W.2d 618, 631−32 (Tex. 1996) (noting that Texas courts 

apply rational-basis test when analyzing constitutionality of regulations affecting 

economic rights); Williams v. Tex. Tech. Univ. Health Scis. Ctr., 6 F.3d 290, 294 

(5th Cir. 1993) (“To state a substantive due process claim[,] a plaintiff must show 

that the government’s deprivation of a property interest was arbitrary or not 

reasonably related to a legitimate governmental interest.”). Whether a “rational 

relation” exists is a question of law. See Hidden Oaks Ltd. v. City of Austin, 138 

F.3d 1036, 1044 (5th Cir. 1998); FM Props. Operating Co. v. City of Austin, 93 

F.3d 167, 172 n.6 (5th Cir. 1996); Pierce v. Tex. Racing Comm’n, 212 S.W.3d 745, 

757 (Tex. App.—Austin 2006, pet. denied).

Texas undoubtedly has a legitimate interest in the proper administration of 

its criminal justice system. The bondsmen are participants in the criminal justice 

system, as their business flows from the arrests and prosecutions of individuals 

who need bail bonds for pretrial release. The $15 fee is used to support the 

criminal justice system through payment of prosecutor longevity pay and indigent 

defense. We therefore conclude that the $15 imposed by section 41.258 is 

rationally related to a legitimate state interest, and we hold that the bondsmen have 

not pleaded a substantive due process claim for which the State has waived 

sovereign immunity. 
21

We sustain the Sheriff and Attorney General’s second issue.12

Conclusion

We hold that the bondsmen’s claims “for deprivation of property without 

due course or due process of law” are the only (non-abandoned) claims that 

survived under the trial court’s order and that the trial court lacks jurisdiction over 

those claims. We therefore reverse the portion of the trial court’s order that denies 

the Sheriff and Attorney General’s combined motion “with respect to [the 

bondsmen’s] claims for deprivation of property without due course or due process 

of law” and remand the case to the trial court with instructions to dismiss that 

claim for lack of jurisdiction. We further instruct the trial court to dismiss the 

bondsmen’s occupation tax claim without prejudice.

Harvey Brown

Justice 

Panel consists of Justices Higley, Sharp, and Brown.

Justice Brown, concurring.

 

12 Our disposition of the Sheriff and Attorney General’s second issue renders our 

consideration of their other issues unnecessary. 
22