1. THE BILL OF COSTS JULY 2014 Ted Wood Assistant General Counsel Office of Court Administration ted.wood@courts.state.tx.us (512) 936-1183 (512) 463-1648 FAX

2. Bill of Costs in Criminal Cases There is a bill of costs in civil cases, See TRCP 129, 130, 140; TRAP 34.5(a)(11). But today we are only talking about the bill of costs in criminal cases.

3. Today’s Presentation New light and knowledge has been received from the Court of Criminal Appeals.

4. Two New CCA Cases Johnson v. State, 2014 Tex. Crim. App. LEXIS 240 (Tex. Crim. App. Feb. 26, 2014). Cardenas v. State, 2014 Tex. Crim. App. LEXIS 236 (Tex. Crim. App. Feb. 26, 2014).

5. CCA Provides Roadmap “... to afford future litigants a ‘roadmap’ to questions regarding court costs...” Johnson v. State at *1

6. Four Questions What? Who? When? Why?

7. What?

8. What is a bill of costs? An itemization of the court costs assessed against a convicted criminal defendant. Includes attorney’s fees and repayment of crime stoppers reward (if either is assessed).

9. Separate Listing Mandatory Costs (itemized list) Attorney’s Fees Reward Repayment (crime stoppers)

10. Does not include: the fine. restitution.

11. Sample Bill of Costs In your written materials For a conviction for Parent Contributing to NonAttendance – Education Code, Section 25.093. Class C Misdemeanor.

12. Sample Sheriff’s Fee Record In your written materials

13. Three Requirements for Bill of Costs “Thus, a bill of costs [1] must contain the items of cost, [2] it must be signed by the officer who charged the cost or the officer who is entitled to receive payment for the cost, [3] and it must be certified.” Johnson v. State at *17.

14. Punitive versus Nonpunitive A fine is punitive. Restitution is punitive. Court costs are nonpunitive. Weir v. State, 278 S.W.3d 364 (Tex. Crim. App. 2009).

15. Johnson v. State, 2014 Tex. Crim. App. LEXIS 240 (Tex. Crim. App. Feb. 26, 2014). “[C]ourt costs are not part of the guilt or sentence of a criminal defendant, nor must they be proven at trial; rather, they are ‘a nonpunitive recoupment of the costs of judicial resources expended in connection with the trial of the case.’” [quoting Weir v. State].

16. Attorney’s Fees are Nonpunitive “Like court costs and unlike fines, attorney fees are compensatory and nonpunitive. They serve as reimbursement for the legal services provided by appointed counsel. And the trial court does not impose attorney fees as part of a convicted defendant’s sentence.” Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011).

17. Repayment of Reward - Nonpunitive CCP, art. 37.073 – authorizes the Court to order a defendant who has been convicted of a felony offense to repay all or part of a reward paid by a crime stoppers organization. This order is optional with the Court. CCP, art. 42.152(a) – The Court is to “assess this cost in the same manner as other costs of prosecution are assessed against the defendant.”

18. Mandatory Costs “A mandatory cost is one other than attorney’s fees that is a predetermined, legislatively-mandated obligation imposed upon conviction.” Johnson v. State at *6. Mandatory costs are “court costs a trial judge must impose if certain conditions precedent are met.” Johnson v. State at *6 (emphasis added).

19. Fees for Services of Peace Officers CCP, art. 102.011. For example: $50 fee for executing or processing an arrest warrant. $5 fee for making an arrest without a warrant. $5 for summoning a witness. $5 for commitment or release.

20. What is the Condition Precedent? “An officer may not impose a cost for a service not performed.” Johnson v. State at *6 n.3 (quoting CCP, art. 103.002).

21. How do we know the service has been performed?

22. Sheriff’s Fee Record CCP, art. 103.009

23. More on the Sheriff’s Fee Record No appellate court has ever said whether this is required to support the assessment of peace officer fees. However, the basis for assessing peace officer fees could possibly be successfully challenged in the absence of a sheriff’s fee record.

24. A little more... If service is performed by a law enforcement entity other than your County Sheriff, then you probably ought to have a fee record from that law enforcement agency. This could be a county constable, the sheriff of a different county, a municipal police department, or the DPS. Money should go to the law enforcement entity that performed the service.

25. Who?

26. Who prepares the Bill of Costs? “[B]ills of costs... are produced by the clerk rather than the trial judge.” Johnson v. State at *14.

27. When?

28. When must a bill of costs be produced? “[B]ills of costs... are authorized to be produced after trial.” Johnson v. State at *14. “[A] bill of costs is a relevant item that if omitted from the record, can be prepared and added to the record via a supplemental clerk’s record.” Johnson v. State at *16.

29. More about When: “[W]hile it is true that matters that have a bearing on the guilt or sentence of a criminal defendant should be brought to the attention of the trial court, the imposition of court costs have no bearing on the guilt or sentence of a criminal defendant. Therefore, matters pertaining to the imposition of court costs need not be brought to the attention of the trial court, including a bill of costs prepared after a criminal trial.” Johnson v. State at *21.

30. Still more on When: “Typically, a defendant will be sentenced in open court, but the written judgment is prepared at a later date.... Thus, while some defendants in some cases may have an opportunity to recognize a basis to object to the imposition of court costs in open court if an itemized bill is available to them, most defendants, like Appellant, will not, because their court costs were not imposed in open court, the judgment did not contain a written amount of court costs, or it contained only an aggregate figure – the accuracy of which may not be verifiable at the time of imposition.” Johnson v. State at *11.

31. Why?

32. The Bill of Costs Statute Code of Criminal Procedure, Article 103.001

33. Text of Statute “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.”

34. The Purpose of CCP, art. 103.001 Substantiation of Court Costs “Article 103.001 discusses when a cost can be collected by an agent of the State” Johnson v. State at *24 (emphasis added). “Article 103.001 was intended to prevent a defendant from paying unsubstantiated court costs.” Johnson v. State at *24 (emphasis added).

35. CCP, art. 103.003(a) “District and county attorneys, clerks of the district and county courts, sheriffs, constables, and justices of the peace may collect money payable under this title [CCP, Title 2].” (emphasis added)

36. Costs not Collectible in the absence of a Bill of Costs “Article 103.003 authorizes designated government agents to collect only money that is payable. Id. art. 103.003. A cost is payable when ‘a written bill is produced or ready to be produced, containing the items of costs....” Id. art. 103.001. Thus, Article 103.001 appears to act as a prohibition on the ability of state agents from collecting nonpayable, but assessed, court costs. Johnson v. State at *24.

37. Main Point Court costs can be assessed without a bill of costs. BUT Court costs cannot be collected without a bill of costs being produced or being ready to be produced.

38. Why is a bill of costs necessary before court costs can be collected? Due Process

39. U.S. Constitution, 5 th Amendment “[N]or shall any person be deprived of... life, liberty, or property, without due process of law...”

40. U.S. Constitution, 14 th Amendment “[N]or shall any State deprive any person of life, liberty, or property, without due process of law...”

41. Texas Constitution, Article I, Sec. 19 “No citizen of this State shall ever be deprived of life, liberty, [or] property... except by the due course of the law of the land.”

42. How do defendants get due process? Cardenas v. State at *5-6 “Convicted 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. Appellant’s right to due process of law has been satisfied with respect to notice and an opportunity to be heard regarding the imposition of court costs.”

43. CCP, art. 103.008(a) On the filing of a motion by a defendant not later than one year after the date of the final disposition of a case in which costs were imposed, the court in which the case is pending or was last pending shall correct any error in the costs.