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.
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