Danny Loyd Hayes, II v. State ( 2021 )

NO. 12-20-00222-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DANNY LOYD HAYES, II, § APPEAL FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Appellant appeals his conviction for theft. In his sole issue, Appellant argues that the
trial court erred in assessing certain fees in the bill of costs. We modify and affirm as modified.
BACKGROUND
In September 2019, Appellant was charged by indictment with the state jail felony theft
of property under $2,500, enhanced by two prior misdemeanor theft convictions. 1 Pursuant to a
plea agreement, Appellant pleaded “guilty” in exchange for three years deferred adjudication
community supervision.
In April 2020, the State filed a motion to adjudicate guilt, alleging that Appellant violated
certain terms of his community supervision. At the hearing, Appellant pleaded “true” to all of
the State’s allegations. Following the hearing, the trial court granted the State’s motion to
adjudicate, revoked Appellant’s community supervision, and adjudicated Appellant guilty of
theft. The trial court assessed Appellant’s punishment at fifteen months confinement. This
appeal followed.
1
TEX. PENAL CODE ANN. § 31.03(a), (e)(4)(D) (West 2019).
COURT COSTS
In his sole issue, Appellant urges the trial court improperly assessed certain court costs in
the judgment. First, Appellant argues the trial court erred in assessing a “time payment” fee
previously authorized by Section 133.103 of the Texas Local Government Code. 2 Although the
State acknowledges that it conceded error on this issue in previous appeals, it has reconsidered
its position on the “time payment” fee and no longer concedes error. Second, Appellant further
argues that he was erroneously charged a “specialty court” fee. The State concedes this error.
Time Payment Fee
Several courts, including this one, have held subsections (b) and (d) of Section 133.03
unconstitutional. See, e.g., Irvin v. State, No. 12-19-00347-CR, 2020 WL 5406276, at *7 (Tex.
App—Tyler Sept. 9, 2020, pet. filed) (mem. op., not designated for publication); Ovalle v. State,
592 S.W.3d 615, 618 n.1 (Tex. App.—Dallas 2020, pet. filed); Simmons v. State, 590 S.W.3d
702, 712 (Tex. App.—Waco 2019, pet. filed); Johnson v. State, 573 S.W.3d 328, 340 (Tex.
App.—Houston [14th Dist.] 2019, pet. filed). However, the Court of Criminal Appeals has
recently held that the pendency of an appeal stops the clock for the purposes of the time payment
fee. Dulin v. State, Nos. PD-0856-19, PD-0857-19, 2021 WL 1202400, at *4 (Tex. Crim. App.
March 31, 2021).
Here, the judgment adjudicating guilt reflects that the trial court assessed $256.50 in
court costs. The judgment includes a document entitled “Order to Withdraw Funds,” which
states that Appellant incurred “court costs, fees, fines and/or restitution in the amount of
$256.50.” The bill of costs itemizes the court costs imposed, which total $276.50 with $256.50
remaining. The bill of costs includes a $15.00 “time payment” fee and includes a paragraph
stating that a $15.00 fee will be assessed if any part of the court costs is paid on or after the 31st
2
The Texas Legislature passed legislation, effective January 1, 2020, that transfers Texas Local
Government Code, Section 133.103 to Texas Code of Criminal Procedure, Article 102.030 and revises the statute to
provide that all of the fees collected under the section are “to be used for the purpose of improving the collection of
outstanding court costs, fines, reimbursement fees, or restitution or improving the efficiency of the administration of
justice in the county or municipality.” See Act of May 23, 2019, 86th Leg., R.S., S.B. 346, § 2.54, 2019 Tex. Sess.
Law Serv. Ch. 1352. The changes apply only to a cost, fee, or fine assessed on a conviction for an offense
committed on or after the effective date of the Act. Id. § 5.01. Because the offense in this case was committed before
January 1, 2020, the former law applies. See Ovalle v. State, 592 S.W.3d 615, 617 n.1 (Tex. App.–Dallas 2020, pet.
filed).
2
day after the judgment assessing the court costs is entered. 3 But see TEX. LOC. GOV’T CODE
ANN. § 133.103(c), redesignated as TEX. CODE CRIM. PROC. ANN. art. 102.030 (West Supp.
2020) (treasurer shall deposit ten percent of fees collected under this section in general fund of
county or municipality for purpose of improving efficiency of administration of justice in county
or municipality).
Because the pendency of an appeal stops the clock for purposes of the time payment fee,
the assessment of the fee in Appellant’s case is premature. Dulin, 2021 WL 1202400, at *4. As
a result, the fee should be struck in its entirety, without prejudice to them being assessed later if,
more than 30 days after the issuance of our mandate, Appellant has failed to completely pay any
fine, court costs, or restitution that he owes. 4 Id. We sustain this portion of Appellant’s sole
issue.
Specialty Court Fee
Appellant further urges that the trial court erred when it imposed the “specialty court” fee
in its bill of costs. The State not only concedes that this fee was erroneously assessed but further
states that the “Local Consolidated Fee on Conviction of Felony” as a whole should not have
been assessed. We agree.
The date of Appellant’s charged offense is March 6, 2019. The Local Consolidated Fee
on Conviction of Felony only applies to defendants who are convicted of offenses committed on
or after January 1, 2020. TEX. LOC. GOV’T CODE ANN. § 134.101 (West Supp. 2020). Section
134.101 assesses an additional $105 fee for persons convicted of felonies. Id. § 134.101(a).
That $105 fee is to be allocated to the following specific accounts and funds: the clerk of the
court account, the county records management and preservation fund, the county jury fund, the
courthouse security fund, the county and district court technology fund, and the county specialty
court account. Id. § 134.101(b).
3
It appears the trial court improperly assessed the new $15.00 time payment fee instead of the $25.00
payment fee applicable to Appellant’s case. See Act of May 23, 2019, 86th Leg., R.S., S.B. 346, §§ 2.54, 5.01, 2019
Tex. Sess. Law Serv. Ch. 1352; TEX. CODE CRIM. PROC. ANN. art. 102.030 (West Supp. 2020).
4
The United States Supreme Court and the Texas Court of Criminal Appeals have recognized the
desirability of avoiding the adjudication of constitutional issues when at all possible. Clinton v. Jones, 520 U.S.
681,690, 117 S. Ct. 1636, 137 L. Ed. 2d 945 (1997); Pena v. State, 191 S.W.3d 133, 136 (Tex. Crim. App. 2006).
Whether the time payment fee will be reimposed later is speculative at this point because Applicant could avoid the
statutory conditions for imposing the fee by choosing to pay his monetary obligations on time. And there is an
available statutory remedy to challenge the time payment fee, if it is ever imposed. See TEX. CODE CRIM. PROC.
ANN.; see also Dulin, 2021 WL 1202400, at *4 n.29.
3
The bill of costs in Appellant’s case includes the following costs as enumerated in
Section 134.101: $40.00 Clerk of the Court, $4.00 County and District Court Technology Fund,
$1.00 County Jury Fund, $25.00 County Records Management and Preservation, $25.00 County
Specialty Court Account, and $10.00 Courthouse Security Fund. These total $105 in fees. Per
the statute’s effective date, Appellant is not obligated to pay the Local Consolidated Fee on
Conviction of Felony. Accordingly, we will modify the trial court’s judgment and Order to
Withdraw Funds to delete these fees. See Sturdivant, 445 S.W.3d at 443; Ovalle, 592 S.W.3d at
618. This portion of Appellant’s sole issue is sustained.
DISPOSITION
Having sustained Appellant’s sole issue, we modify the trial court’s judgment, along with
its attached order to withdraw funds, to reflect that Appellant’s court costs are $136.50 by
deleting the local consolidated fee on conviction of felony and by deleting the time payment fee,
without prejudice to it being assessed later, if more than thirty days after the issuance of our
mandate, Appellant fails to completely pay fine, court costs, or restitution he owes. We affirm
the judgment as modified.
BRIAN HOYLE
Justice
Opinion delivered April 14, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
4
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
APRIL 14, 2021
NO. 12-20-00222-CR
DANNY LOYD HAYES, II,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-1328-19)
THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that the judgment of
the court below should be modified and as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be modified to reflect that Appellant’s court costs are $136.50 by deleting the
local consolidated fee on conviction of felony and by deleting the time payment fee, without
prejudice to it being assessed later, if more than thirty days after the issuance of our mandate,
Appellant fails to completely pay fine, court costs, or restitution he owes.; in all other respects
the judgment of the trial court is affirmed; and that this decision be certified to the court below
for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.