Wednesday, October 24, 2012

Harris County loses expensive $234 judgment on court costs

An appellate court has ruled that all court fees in Harris County criminal cases, going back for some indeterminate amount of time, are invalid if the county did not produce a written "bill of cost" documenting their source, as the county apparently, routinely failed to do. Moreover, the issue need not have been preserved at trial for court costs to be appealed. The implications are potentially profound.

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:
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.
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!

MORE: See, "Harris Public Defender: Habeas writs possible over improperly seized commissary funds after court-costs ruling."


Anonymous said...

Well, many civil judgments say "plus court costs," without delineating them, so that's really no big deal to me. But if there's a criminal statute saying they have to, well, they have to.

However, keep in mind the difference between "not owed" and "will win on appeal."

If you get revoked for failing to pay court costs, you may eventually win, but you still get revoked.

I heard a saying once that may apply here--something about raps and rides.


Robert Langham said...

I've always been skeptical of the 10.00 "dissmissal fee" that municipal courts charge. Seems like if they charge you with something and then have to dismiss it.....they owe YOU. And it ought to be more than 10 bucks!

Anonymous said...

Harris county... Why would anbody be suprised about anything they do?
Most of the judges and da's would bring back hanging for entertainment and charge Defendants for rope and hanging cost,
Given half the chance.

Alex Bunin said...

Scott, thanks for recognizing Janis's hard work. Rage, if you are implying that the lack of a bill of costs can be fixed, I agree, but it is a good thing. Defendants should told what these myriad of fees are for. Many are added improperly or have nothing to do with criminal justice (a separate challenge). However, what is done is done and counties (not just Harris) will be hard pressed to recreate a proper bill of costs for the prisoners who are having their commissary funds siphoned off for unproven fees. I expect some will file writs since the court of appeals said the issue is not waived for failure to object in the trial court.

Thomas R. Griffith said...

Hey Grits, on the heels of Mr. Bunin thanking you for recognizing Janis's hard work, we the V.O.T.S. of this fixed Harris County judicial joke, would like to thank him (and his Team) for attempting to repair it, one tweak at a time. He's a man of his words'.

The phone companies got away with charging for "this & that" until it backfired. Auto mechanics stuck it to only women until they learned men can be just as stupid. Now, we learn about another conspiracy in Corrupt Town, Texas that was caught by the Harris County Public Defender office & they did something about it.

Hell yes this is "Remarkable, indeed!" But I for one aint letting them (any of them) off the hook & they all know it by now. So, with this small victory in their pocket, I ask again, please speak up while the iron is hot about the unqualified, inexperienced non-CDLs allowed to dabble in criminal defense being directly tied to the "Texas TapOut" rate. Thanks.

Anonymous said...

You should read opinions from the 7th court.of appeals in amarillo for the last three years. They have held that an indigent defendant, ( w a court appointed atty) is indigent until proven otherwise, and therefore not responsible for court appted atty fees and costs, unless there is evidence in the record, which there never is. Really amazing when you think about it.

Anonymous said...


The legislature has authorized a j.p. or municipal court to impose a fee, $10 or $20, on a defendant who gets the problem (expired registration; expired inspection certificate; etc.) within a given time after the offense occurred and provides proof to the court. Only then does the court dismiss the charge.
See House Bill 1623 from the 80th Legislature, Regular Session, 2007.

Kevin Stouwie said...


Anonymous said...

@ those opinions speak as to whether someone who is appointed an attorney because of indigency has to reimburse the county as part of their restitution?

There is a county in NE Texas who makes that a term and condition of probation.