Sunday, March 02, 2014

Official: Millions in court costs illegally collected, probations wrongly revoked, based on new CCA opinion

The Texas Court of Criminal Appeals this week issued an odd and confusing opinion in a case styled Johnson v. State which was covered earlier on Grits, overturning the lower court's ruling that a defendant should not have to pay $234 in court costs because Harris County had never issued a written "bill of costs" as required under the statute.

The CCA ruled against Mr. Johnson because belatedly during the appellate process Harris County came up with a written bill of costs for this one case, though the county does not routinely produce them in other cases. The court made a hair-splitting distinction between costs that are "payable" vs. costs which are merely "assessed." Under this ruling, court costs may be "assessed" without a written bill of costs, said the court, but they are not "payable" until the defendant receives written documentation.

The CCA declared: "Article 103.001 [of the Code of Criminal Procedure] appears to act as a prohibition on the ability of designated state agents from collecting nonpayable, but assessed, court costs." So, according to this decision, a bill of costs is necessary before the government can "collect" any money from a defendant. Got it? Judges can "assess" court fees without a written bill of costs, but counties can't collect the money.

Ted Wood, the Assistant General Counsel for the Office of Court Administration (OCA), explained the implications to your correspondent thusly via email:
the collection of court costs by the government from  those defendants who have never received a bill of costs appears to be improper.  It's arguably a deprivation of property without due process of law as prohibited by the Fifth Amendment.

The same idea could apply to persons who have had their probation revoked for the nonpayment of court costs.  In the absence of a bill of costs, according to the Johnson opinion's reasoning, the probationers weren't obligated to pay the money because no government actor could collect it.  Their probation revocations by the court could be suspect.

So the CCA opinion has resulted in Mr. Manley Johnson owing the $234 assessed against him (because a bill of costs was eventually produced -- albeit late in the game).  But the repercussions could be substantial.

The bottom line is this:  If you've been ordered to pay court costs but no bill of costs has been produced, you don't owe the money. Why?  Because the government is prohibited from collecting it from you.  And if you have already paid the money in the absence of a bill of costs, the collection of the money by the government was arguably unconstitutional.
If that interpretation is accurate, Harris County may have won the battle over court costs but egregiously lost the war. Again from Mr. Wood, in response to Grits' followup questions:
The opinion is not conducive to judicial economy. Here is what we may see:
(1) Individuals in TDCJ who have never been presented with a bill of costs and who have had money withdrawn from their inmate accounts will be able to challenge the withdrawals in civil proceedings.  This is because the government was prohibited from collecting this money.

(2) Defendants who are assessed court costs (even if there is a bill of costs) will be able to challenge the assessments via "correction-of-costs" motions. See CCP, art . 103.008.  These "corrections" are to be made by "the court in which the case is pending or was last pending."  That court could be a court of appeals or even the CCA.  For example, the last court in which Johnson and Cardenas were pending is the CCA.  I wonder how the CCA will handle these motions in light of the "last pending" language. Will the CCA handle these motions itself?  Will the CCA conduct a hearing in which evidence can be introduced?  These questions were among the grounds on which the CCA granted review in Cardenas [ed. note: a companion case decided the same day as Johnson].  But then the opinion declined to address them.  

Note that the Cardenas opinion says "[c]onvicted defendants have constructive notice of mandatory court costs set by statute and the opportunity to object to the assessment of court costs against them for the first time on appeal or in a proceeding under Article 103.008 of the Texas Code of Criminal Procedure."  The Cardenas opinion goes on to say that these appeals and Article 103.008 proceedings are what satisfies a defendant's "right to due process of law" in regard "to notice and an opportunity to be heard regarding the imposition of court costs."  So what the CCA effectively did is say that there was no problem that Mr. Johnson and Mr. Cardenas were unable to challenge the court costs assessed against them in the trial court because they can always come back and challenge the costs later.  An alternative approach would have been to make sure a bill of costs exists at the time the defendant is being sentenced so as to not necessitate an entirely new level of court procedures to evaluate whether the amount of assessed court costs is correct.

(3) Defendants who had their probation revoked for non-payment of court costs and who have never received a bill of costs appear never to have owed the money. There could be legal challenges in regard to these revocations.

(4) Defendants who were ordered to pay court costs in the absence of a bill of costs and who did make their payments to government agents (who according to the Johnson opinion were prohibited from collecting the payments) may seek a civil remedy ...

While the CCA preserved the assessments of the $234 in Johnson and the $294 in Cardenas, the result seems to be that millions of dollars in court costs could now be considered to have been improperly collected.  Additionally, the case may have given rise to a real a logistical dilemma for handling of future court cost challenges.
Bottom line, said Wood, "If a person has paid court costs and there was no bill of costs, then, according to the Johnson opinion, the government was actually prohibited from collecting the costs. This would seem to even include traffic cases in the justice and municipal courts - 93% of court cost revenue comes from these Class C misdemeanor courts. So even people who have only been convicted of speeding and similar minor crimes could seek reimbursement of their court costs."

In other words, the Court of Criminal Appeals has created an enormous clusterf#%k that's almost certain to generate waves of litigation and likely will necessitate legislative intervention when the 84th session convenes in 2015. Wood believes the preferable solution would be to require a written bill of costs to be produced at the time of sentencing, comparing the process to routine consumer purchases:
I have compared the bill of costs in some of my writings to getting a receipt at the grocery store that details one's purchases. If I am charged for two gallons of milk when I only bought one, then I can point out the problem and the bill can be corrected.  If I am charged 79 cents per pound for bananas when the sale price was 39 cents per pound, I can look at my receipt and get this corrected.  What if I didn't get a receipt at the grocery store?  Then how would I even know that I had been overcharged?  Yet in our court system, when there is no bill of costs there is no way to identify an overcharge. And mistakes and overcharges are common. I have argued that the court system ought to be at least as assiduous as HEB when it comes to assessing court costs.
The OCA is presently in the process of reformulating Texas' model felony judgment forms as required under Article 42.01, Section 4 of the Code of Criminal Procedure, a process Mr. Wood is spearheading for the agency. The new forms will be finalized this spring with advice and input from a diverse stakeholder group, so we should have a clearer picture within the next few months of what impact these decisions will have on the ground. In the meantime, though, the Court of Criminal Appeals appears to have created far more problems with the Johnson decision than it resolved.


Anonymous said...

Does the collection function fall to the District Clerk's office?

Gritsforbreakfast said...

From Ch. 103 of the Code of Criminal Procedure:

Art. 103.003. COLLECTION. (a) District and county attorneys, clerks of district and county courts, sheriffs, constables, and justices of the peace may collect money payable under this title.

(b) A community supervision and corrections department and a county treasurer may collect money payable under this title with the written approval of the clerk of the court or fee officer, and may collect money payable as otherwise provided by law.

(b-1) The commissioners court of a county that has implemented a collection improvement program under Article 103.0033 may collect money payable under this title or under other law.

(c) This article does not limit the authority of a commissioners court to contract with a private vendor or private attorney for the provision of collection services under Article 103.0031.

Anonymous said...

Talk about an alleged tempest in the world's tiniest teapot.

Gritsforbreakfast said...

@7:28, it's only a "tempest" because it affects many, many thousands of tiny teapots.

Anonymous said...

"tempest in the world's tiniest teapot"

For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the message was lost.
For want of a message the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a nail.

Anonymous said...

Since getting the money back is a civil matter, can class action lawsuits be brought against each county with the class being any person who failed to receive the proper documentation?

Anonymous said...

And if you cannot pay in Harris County, you get sent to the Harris County debtors prison, the county jail.

Anonymous said...

Grits, thanks for bringing this to out attention. Folks have been F'ed over by well dressed criminals with secrete fuzzy math skills for decades down in Texas' anus aka: Harris County.

These same people will not have the spare time & extra money to fork over to a lawyer to recoup a couple of hundred bucks. Sick days are saved for when we get sick and vacation days are worth more than the initial conspiracy rip off took. (anyone thinking that prisoners will be flooding the place with claims or law suits hasn't been to the units that don't have law libraries)(those with them including the county lockup will only cater to those having enough money to afford a jailhouse layer) Good luck doing on your own.

Plus, we all know damn good & well that no one is going to be mailing out notices to potential victims. With that in mind, only a few luck few will be in a position to do squat about it. Plus, no one is going to be investigated, indicted and punished for these crimes.

*Anyone that learns about a lawyer that is embarking on a class action suit (that has no ties to Harris County or any of the criminals wearing suits) is encouraged to revisit this GFB comment section and provide info.

The taxpayers will be the ones that foot the bill as always.

Anonymous said...

Anon 1:46
The taxpayers should foot the bill the elected the politicians who enacted these laws even if they won 51 % of the vote in some areas . In a representative republic it is the electorates responsibility.If the population is tired of the way their government is operating In in TX and the US you can vote them out.

Robert Langham said...

Can't anybody here PLAY this game?

Anonymous said...

Don't know what in the hell Robert means but 3:30PM has put the head squarely on the nail.

We the taxpayers deserve exactly what we allow to happen behind closed fee collection doors.

Today is a day to do something about it. Get off the blog(s) and vote these gangsters out.

But, before you vote, take time to vet the person fully. Afterwards, paint a bigass R or D on your forehead so the rest of us can tell who is to blame for the same ol same ol. (Basically - What gang you are in.) Those that don't think it's about two gangs fighting a turf-war with assistance from uninformed and / or brainwashed voters, can't be helped. 'I's' don't count and never will until they publicly denounce both gangs and prove they are not one or the other in politicians clothing.

Those that don't vote can basically pack their krap and get to stepping. Why would you want to live in a place where you knowingly chose to have no say or voice in anything that directly affects you and your family. Audiosmofo.

Until then, let the taxpayers pay through the nose and them some.

john said...

IN a civil case I was railroaded, I started an appeal, but when I found out the fees, I had to cancel. I called and wrote and told them I couldn't. They issued a judgment saying they canceled it since I didn't pay, so I should pay their court costs. But there WAS no appeal. SO they ruled just to get paid for ruling nothing. But they never sent anything else in the mail---i can only look at the public website. (Meanwhile, I guess i have judgement and lien on me. "Lien on me, when you're strong, don't let poor citizens Carrrrry on..." c'mon, EVERYBODY sing!...

Legal Fees said...

Great post! Been reading about different aspects of legal fees. Thanks for the info!

Anonymous said...

I was in a Harris County traffic court today. When the time came for me to pay my court costs, I asked for a bill. They looked at me like I was from Mars. After the window clerk got her boss, he repeatedly claimed "I'm not a lawyer" and then sent me back into the courtroom to talk to the ADA. The ADA could of cared less about what Article 103 had to say about the matter. They basically threatened to take away my Deferred Adjudication agreement and proceed with a jury trial if I didn't "pay the court costs and drop it". SO WHAT SHOULD I DO NEXT? I WAS EXPRESSLY PROHIBITED from leaving with my finalized paperwork until I paid the court costs BUT WAS NEVER given a bill, in exact conflict with the letter of the law. Is this now a 5th amendment illegal taking? Could I sue for my court costs and damages? And since the county has been put on notice by the 14th and now the CCA level courts, shouldn't there be some kind of worse penalty for their continued non-compliance?