When and how local clerks can make poor plaintiffs pay court fees to get divorced will be argued before the Texas Supreme Court Wednesday, with both sides hoping the justices provide clarity on the contentious issue.
In 2012, six plaintiffs from Tarrant County sued the local district court clerk for charging them court fees even after they filed affidavits of their indigent status — also known as "pauper petitions" — when they filed for divorce. But the clerk says final divorce decrees require that each party pay its share of the court costs.
"They're saying this boilerplate language in their final divorce decrees gives the court the right to charge court fees even though they're indigent," said Lee DiFilippo, who represents three of the six Tarrant County plaintiffs.
But Tarrant County District Clerk Thomas A. Wilder insisted the divorce decree language does give his office the right to assess fees.
"Generally speaking, our position is that the orders of the court are the operative language, (and) that the district clerk is obligated to follow the orders of the court which clearly requires the collection of cost" Wilder told The Texas Tribune as he headed to Austin late Tuesday.
"The District Clerk’s actions were undertaken solely and exclusively due to the language of the divorce judgments that suggested Petitioners were to pay the costs, notwithstanding their presumptive indigence," wrote Chris Ponder, an assistant Tarrant County district attorney who is defending Wilder.
In a side note, Wilder said that each year his office has found that between 500-700 of those claiming indigence are not. He refused to say exactly how his office decides which indigency cases to investigate or contest, but added it is not something done "willy-nilly."
The case is being closely watched by legal advocates because it is the civil court bookend to its criminal counterpart: the role of fines for minor crimes that keep the poor locked in a cycle of indigency.
"The reason it is so important is because people need to know that when they file an affidavit of indigency, an inability to pay costs, that states and it is found valid that they cannot pay," Trish McAllister, executive director of the Texas Access to Justice Commission. "They need to rely on that finding unless a court has said otherwise."
Court costs and fines surfaced as one of the more pressing criminal justice issues in the aftermath of the police shooting death of Michael Brown in Ferguson, Missouri in 2014.
While a grand jury cleared the officer, Darren Wilson, of criminal wrongdoing, a subsequent U.S. Department of Justice report revealed how the police department in Ferguson wrote more tickets for mostly poor African Americans than any other ethnic group.
Following the shooting of Brown, federal investigators found that the Ferguson relied on municipal ticketing and fines as a revenue generator for the city's budget.
An episode of HBO's Last Night Tonight With John Oliver last March is credited by many in the legal community with highlighting how court fines and tickets can result in an unfair burden on the indigent, who do not have access to attorneys to fight misdemeanors, and can lose their driver's license or face jail time for unpaid fines.
"A civil debt should be a civil debt," said Rebecca Bernhardt, executive director of the Texas Fair Defense Project. "By that I mean that folks shouldn't be threatened with arrest when they owe court costs."