Friday, March 02, 2018

More unconstitutional court fees defenestrated

On Twitter, the Texas District and County Attorneys Association mocked a defendant represented by the Harris County Public Defender for winning a court-fee reduction of about $13. And if that's all there were to it, they'd be right to criticize the court for wasting its time.

But in reality (which in general lies FAR away from the TDCAA twitter feed), the Court of Criminal Appeals overturned a lower court's finding, holding that portions of the "consolidated court cost relating to 'law enforcement officers standards and education,' 'comprehensive rehabilitation,' and 'abused children’s counseling' were all facially unconstitutional" and couldn't be applied to anyone. To boot, the 8-1 margin means the ruling is unlikely to change if one or even two judges are replaced during this election cycle.

So sure, if we were just talking about one defendant getting $13 back, it might be a small thing. But reducing all consolidated court costs by about 10 percent and eliminating those specific funding streams? That's a big deal no matter how much snark and disdain arises from prosecutors.

Jani Maselli-Wood, a former Republican CCA candidate who works at the Harris County Public Defender Office, has been knocking down these unconstitutional fees one by one after they were exposed in a legislatively mandated report written by her husband, Ted Wood, when he was at the Office of Court Administration.

TDCAA sees that marital link as evidence of conspiracy, but if eight members of the CCA including three of the four members of the Government-Always-Wins faction, agreed the fees are unconstitutional (Grits is now counting Yeary in that GAW cohort), it seems to me any conspiracy was a good thing. Why would prosecutors or anyone else think it's a good idea to keep unconstitutional laws on the books?


James S. said...

Can we get a link to the TDCAA comments (both about the $13 and about Jani)? Did they actually see her going against bad court costs as somehow improper because of Ted's history?
I mean, if so, that's just weird.

Anonymous said...

Maybe they should mock their members who will file state jail felony cases on someone who steals food worth $13 dollars and have two prior theft convictions. Then seek 12 months in a state jail facility. Who is the time and money waster now?

Anonymous said...

You forgot to mention the other 7 cents in discussing Carter’s Court of Criminal Appeals victory. Nonetheless, don’t you think that the big picture is of greater importance to Carter who was sentenced to 25 years in prison? You may not care about that fact, but I think Carter does.

I honestly doubt that Carter cares about the $13.07 court costs that he won’t be responsible for when he’s still having to serve his 25 year sentence.

At the end of the day, these court costs complaints are being raised on appeal because some defense lawyers are either too lazy to file an Anders brief or don’t care to provide serious representation by trying to raise truly substantive points of error to get a reversal. It’s shameful.

James S. said...

6:51, I'm not sure what you're saying. Do you mean that it would be better to file an Anders brief than to claim that a particular court cost is unconstitutional? If so, not only would that piss off the client (trust me, they'd rather have a brief that pointed to SOMETHING than a lawyer who ignores an obviously wrong court cost and fine and sought to withdraw), I think it would be unethical. When you file an Anders brief, you are certifying to the court of appeals that there's no error in the trial court. But you want the attorney DESPITE HIS KNOWING THAT THE COURT COST IS BAD to file a brief and motion claiming that nothing's wrong. Also, it won't help your reputation as an appellate attorney when you file an Anders brief and the court of appeals says "hold on, you missed this obviously bad court cost, you moron."

I think what's shameful is the parade of appellate law second-guessers who obviously don't understand how it all works.

Anonymous said...

If you're just now putting Yeary in the GAW Club, you should pay closer attention.

Anonymous said...

Yeary clearly posted that anonymously.

Anonymous said...

James S,
That’s BS. If an Anders brief is filed, at least a defendant would personally have an opportunity to present substantive complaints that he feels should be raised a opposed to a useless court costs point of error. Getting $13.07 reduced from court costs will cause many a defendant to legitimately believe that his lawyer sold him out because a point of error was not raised which might allow for a guilt or punishment reversal. You know a court costs claim will never result in a reversal.

Regarding a defense attorney’s reputation, I can’t say it’ll be enhanced if you file an Anders brief or raise the pathetic court costs claim. That is, unless you’re just looking to brag to your defense attorney friends that the appellate courts didn’t merely affirm your client’s conviction like they do in most cases. If so, that’s a fairly hollow victory for the defendant sitting in prison. But who cares about him, right?

Anonymous said...

Did you even read the opinion? You write that it held "that portions of the "consolidated court cost relating to 'law enforcement officers standards and education,' 'comprehensive rehabilitation,' and 'abused children’s counseling' were all facially unconstitutional" and couldn't be applied to anyone."

But the Court actually said in footnote 1:

"As for Appellant’s challenge in his petition to the “law enforcement officers standards and education” portion of the consolidated court cost, Appellant appears to have abandoned his complaint. In his brief, Appellant mentions the “law enforcement officers standards and education” portion only while describing the decision of the court of appeals. His brief makes the case and argues that we should simply apply Salinas to his challenge to the “comprehensive rehabilitation” and the “abused children’s counseling” portions of the cost. Accordingly, only the challenge to the “comprehensive rehabilitation” and the “abused children’s counseling” portions of the cost are before us today."

In other words, the Court didn't say anything about the "law enforcement officers standards and education" fund. The $13.07 reduction was simply the removal of the other two fees, as required by Salinas.

James S. said...


1. The job of an appellate attorney is to find error in the court below. An unauthorized court cost is an error. Thus, an appellate attorney breaches his professional responsibility when he ignores such an error. If you don't like that, fine. But you'll have to come up with an alternative to the adversary system.

2. Please point me to a case, any case, where an appellate attorney raised a court cost claim and ignored an actual, winnable reversible point of error.

3. It is bizarrely rare for an Anders appeal to be reversed based on something the defendant points out to the appellate court. In almost every case, where the appellate attorney missed an arguable point, the court of appeals found it and made another attorney rebrief it.

4. Your point about doing an anders brief so the defendant can respond has no limiting principle. Why limit that to court costs? Why not expand that philosophy to any arguable claim which is destined to lose? The point is, appeals are difficult to win. Period. If a defendant has chosen to appeal an adjudication where he pled "true, but", and there were no objections, you bet your ass I'm gonna complain about court costs if they were bad. That's my job. If the defendant takes zero pleasure from that $13.07 win while he languishes in prison, perhaps he should spend time reflecting on his earlier choices.

Anonymous said...

James S,
At least a defendant will have a chance to raise a claim he believes in, regardless of his possible chances of success, instead of being stuck with a $13.07 reduction in costs.

If you know you’re “destined to lose” because there is no viable, substantive point of error, that’s the exact circumstance Anders was designed for. You recognize that fact, right?

You also ask for a case where a lawyer has raised a court costs claim instead of raising an actual winnable point of error. The problem is we’ll never know because the court cost claim was raised and not a substantive point of error. Such a case might not exist but you can’t say there isn’t one out there. Just like some prosecutors believe there are no innocent people in prison.

I know that an appeal in an Anders situation is almost impossible to win. That’s why you acknowledge the futility of the appeal in an Anders brief and then let the defendant present his likely futile claim, instead of being stuck with the ridiculous court cost claim. Effectively, you might as well raise a factual sufficiency claim instead of a court costs claim; they’ll have about the same effect.

Finally, I think it’s disgraceful that you seem to not care all that much about the client’s desires or feelings because you blame him for “his earlier choices.” You sound no better than a prosecutor.

James S. said...


Well, when I referred to "earlier choices," I was really thinking of a defendant's decision to plead guilty. Because that's usually the sort of case that ends up as either an Anders brief or a court-costs-as-only-point-of-error case. I think we might be on common ground with regard to an actual trial by jury where the only thing an appellate attorney raises is a court cost issue. In those cases, I wrack my brain to find something else to write about (in addition to a court cost claim) even if it's pretty lame. However, unlike you, I'm not going to just assume an appellate attorney is lazy and unethical if he raises only one court-cost point of error. I believe that -- in most cases -- there are simply no objections at trial, no questions of evidence admission, and legal sufficiency isn't even remotely an issue.

Your attitude toward Anders briefs is fascinating. I can tell you with near absolute certainty that there isn't a gaggle of prisoners out there saying, "Oh goody! He filed an Anders brief! That means I get to raise my own kick-ass points of error in the appellate court." If I raise a court-cost-only claim in a brief, my clients like the fact that I'm trying and understand that there isn't anything there. That's the point of good attorney-client communication. I see no point in raising someone's false hopes that their "my indictment didn't state an offense" or "my attorney sucked because (fill in outside-the-record-assertion that means nothing on direct appeal)" arguments are actually going to be meaningful. Because they aren't.

In fact, the smart ones are already working on their 11.07 writs. (News to them, however: that ain't gonna work, either).

Also, let me reiterate what I said earlier: I don't think it's right for an appellate attorney to ignore a court-cost issue THAT HE KNOWS ABOUT and then file an Anders brief saying everything was hunky dory in the trial court. That's just spouting a falsehood.

Mark M. said...

Scott, Douglas Paul Carter was not represented by the Harris County Public Defenders Office. The case came up through the Second Court of Appeals in Fort Worth. Carter was represented on appeal and PDR by Abe Factor, a long-time criminal defense attorney in Fort Worth. For what it's worth, there was a jury-charge point of error on appeal which was overruled by the Second Court of Appeals.

Anonymous said...

Good, lets get rid of all such fees and let taxpayers cover the difference. When they then react as they typically have in the last ten years, we'll be glad to suffer the consequences.

Anonymous said...

James S,
I don’t assume that appellate lawyers are lazy or unethical. I know many great appellate attorneys who would never raise a single court cost complaint on appeal. Based on your last comment, it sounds like you vigorously represent your clients on appeal.

My comments are based on seeing multiple court of appeals opinions where the only claim raised was a court costs complaint. Where there’s a trial or contested hearing (except maybe sentencing or probation revocation hearings), I think a sole court costs point of error is unfair to the client.

Maybe the client wants to raise a claim that the lawyer believes has no merit. In that situation, should a single court costs claim be raised by the lawyer just because the lawyer believes the client’s claim has no merit yet holds the decision-making power over what claims to raise on appeal? I don’t agree with that position because then the client will never know if his seemingly meritless claim would have gotten him a new or punishment trial.

I agree with your statement about a good lawyer-client relationship. I don’t think there is enough of that in the appellate area because appellate lawyers justify minimal client contact with the fact that their advocacy is limited to what is in the trial record. I think that if the lawyer is considering raising a single court costs claim on appeal, the lawyer should let the client know this fact so the client can choose between the non-beneficial court cost claim or a chance to file an Anders brief so he can raise whatever claim he chooses. At least the client has an option and won’t be stuck feeling like he had no choice but to accept what the lawyer raised, in this situation, a useless court cost claim. Whatever the client chooses is irrelevant, at least he received a choice in the direction of the representation.

Plus, if there is a writ or other attack on you complaining about your failure to raise the “winner” court costs claim, you’d have a communication with the client saying he preferred the Anders brief option to use in response to this attack. It’s really no diffferent in a trial situation where the client voices a choice on strategy, different from the lawyer’s choice on strategy, and the lawyer does what the client wants and ultimately loses the trial.

Mark M,
I know you were commenting to GFB so this comment is not directed towards you. Your comment enlightened those who did not review anything but the linked CCA opinion.

In addition to the CCA opinion, I also read the lower opinion, the appellant brief, and PDR before all my comments. (Not bragging, just saying.)

I’m not necessarily judging Abe Factor. However, reviewing these documents seem to confirm my belief that the jury charge complaint was merely a “throw-in” for the court costs claim. I guess Factor didn’t want to be “that lawyer” who raised a single court cost point of error after a trial. In my mind, that’s essentially what he did because he didn’t believe enough in the jury charge complaint to re-raise it on PDR. That jury charge complaint was no better than a sufficiency challenge.

With this comment, James S or anyone else can have the last word. I don’t think I have anything else to say in this matter. Thanks, GFB, for the soapbox. Thanks, James S, for your comments. Please forgive any grammar errors.