Former Office of Court Administration chief Carl Reynolds, who retired earlier this year and is one of the few Texas criminal justice experts who's willing and able to enthusiastically discuss court costs with you, emailed to notify Grits of an opinion last week out of Texas' 14th Court of Appeals (uploaded here; see all the filings in the case), which ruled, as Carl put it, that "Harris County does not comply with [Texas Code of Criminal Procedure] 103.001 by failing to create a bill of costs in each case. If a judgment lists the court costs, but there is no evidence in the record to support those costs, then no costs are owed. Often these costs total many hundreds of dollars and are garnished by TDCJ from commissary funds, or they become owed as conditions of probation. The issue is therefore very important. It need not even be raised in the trial court to preserve it for appeal." (emphasis added)
What does it mean? Translated from court-speak, if the government can't justify the court costs it assigns in writing in a formal bill of costs - as apparently Harris County is not set up to do and has not historically done - then the defendant does not owe any court costs! Extraordinary!
According to the opinion, which looking at the statute seems pretty straightforward, indeed, almost rigidly textual, article 103.001 of the Texas Code of Criminal Procedure, says that "A cost is not payable by the person charged with the cost until a written bill is produced or is ready to be produced containing the items of cost, signed by the officer who charged the cost or the officer who is entitled to receive payment for the cost." Since Harris County can't produce a bill of cost, the court concluded, they can't charge the defendant some perhaps-arbitrary amount - in this case $234.
The 14th Court of Appeals found that the lower court did not err by requiring the defendant to pay court costs per se, but rather the trial court's error stemmed from "entering a specific dollar amount without any support in the record for that dollar amount."
The Harris County DA argued (pdf), circularly, that the issue wasn't ripe because legally the defendant (and thus presumably, every defendant similarly situated) had never really been billed yet! "Because court costs are not payable until the court produces a bill showing items of cost, because the district clerk confirmed a bill of costs is not part of the record, and because appellant failed to give the trial court an opportunity to explain the assessed costs, appellant’s sole issue presented on appeal is not ripe for review, nor is his prayer for the deletion of the court costs m its entirety the remedy. Furthermore, the court costs assessed are presumed correct." The appellate court shot that down because the Texas Department of Criminal Justice was about to confiscate $234 from the appellant's commissary funds.
This potentially is a really big deal because, said the court, the issue "may be appealed directly without the necessity of having preserved the issue below." Again, translating from lawyer-speak, that means defendants can appeal their court costs even if their lawyers didn't object at the time of their judgment. One wonders, can Harris County produce a bill of costs for anybody, or have they just been winging it? A footnote says that, after being given many opportunities an failing to produce a bill of costs by the appellate court's deadline, the county produced a computer printout from its "Justice Management Information System" detailing the charges, so the information seemingly exists. And I'm sure as I write this the District Clerk's office is scrambling to figure out how to begin issuing "bills of cost" going forward. But what about all those older cases where appellate rights have not been waived?
That may be the most expensive $234 judgment anybody ever lost!
Having spoken to her about the case before the opinion came out, I emailed Jani Maselli at the Harris County Public Defender office who authored the appellate briefs (the head public defender Alex Bunin himself argued the case before the 14th Court), and she replied thusly to explain that she'd been closely examining the issue of court costs, and this isn't the only discrepancy:
Congrats to Maselli, Bunin and Co. on this remarkable little victory. While it has eye-popping implications, it certainly should provide immediate incentive for Harris county courts and clerks to get their act together when it comes to at documenting why defendants are charged this or that amount in court costs. Remarkable, indeed!This is my first one solely challenging the sufficiency. I have others with constitutional challenges to specific fees in the pipeline. I also am challenging the sheriff's fees as well because of their failure to follow the law in keeping a fee record.This is HUGE for a county that does not produce bills of costs before assessing court costs in the judgment. A fair reading of this opinion establishes the evidence is insufficient without the cost bill being a part of the record before the assessment of those costs. Harris County does not prepare or produce a cost bill as mandated by statute.I believe until the district clerk radically changes their procedures, all court costs are challengeable. This is really a remarkable little opinion.
MORE: See, "Harris Public Defender: Habeas writs possible over improperly seized commissary funds after court-costs ruling."