Amber Leigh McGehee v. the State of Texas ( 2022 )

NO. 12-20-00236-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
AMBER LEIGH MCGEHEE, § APPEAL FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Amber Leigh McGehee appeals the trial court’s order revoking her community
supervision. In one issue, she challenges certain fees assessed by the trial court. We modify and
affirm.
BACKGROUND
Appellant was indicted for the first-degree felony offense of arson, alleged to have been
committed on December 20, 2019, in Smith County, Texas. 1 Appellant reached a plea bargain
with the State wherein she agreed to enter a plea of “guilty” to the indictment in exchange for the
State’s recommendation of ten years deferred adjudication community supervision. On May 27,
2020, Appellant entered a plea of “guilty,” which the trial court accepted. After hearing
evidence and argument from counsel, the trial court followed the State’s recommendation,
deferred finding Appellant “guilty,” and placed her on community supervision for ten years with
certain terms and conditions.
In August, the State filed a motion to adjudicate Appellant’s guilt, alleging that Appellant
violated the terms and conditions of her community supervision. In the motion, the State alleged
that Appellant violated her community supervision by committing two new offenses, leaving
1
See TEX. PENAL CODE ANN. § 28.02(d) (West 2019).
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Smith County without permission, and failing to submit to a urinalysis as required. In
September, Appellant appeared before the trial court for a hearing on the State’s motion to
adjudicate. The State abandoned the allegations that Appellant committed two new offenses, and
Appellant entered pleas of “true” to the allegations that she left Smith County without permission
and failed to submit to a urinalysis test. The trial court found the remaining allegations “true,”
proceeded to a final adjudication of guilt, and sentenced Appellant to ten years of imprisonment.
This appeal followed.
COURT COSTS
In one issue, Appellant argues that the trial court assessed a “time payment fee,”
previously authorized by Texas Local Government Code Section 133.103, which is
unconstitutional and a “specialty court” fee which is not authorized by statute in this case. 2 The
State argues that both fees should be struck from the judgment because the time payment fee was
prematurely assessed and the specialty court fee is inapplicable to Appellant’s case because she
committed the offense before the effective date of the statute imposing the specialty court fee.
See TEX. LOC. GOV’T CODE ANN. § 134.101(West 2021).
The judgment in this case reflects that Appellant owes $316.50 in court costs. The order
to withdraw funds and the bill of costs reflect the same amount. The itemized bill of costs
reflects that a $15 time payment fee is included in the total amount due. 3 Recently, the court of
criminal appeals held that the pendency of an appeal “stops the clock” for the purposes of the
time payment fee. Dulin v. State, 620 S.W.3d 129, 133 (Tex. Crim. App. 2021). Consequently,
any assessment of the time payment fee in Appellant’s case would be premature and should be
struck in its entirety, without prejudice to it being assessed later if, more than thirty days after the
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), judgment vacated on other grounds, Ovalle v. State, No. PD-0127-20, 2021 WL 1938672, at *1 (Tex. Crim.
App. May 12, 2021) (per curiam).
3
It appears the trial court improperly assessed the new $15 time payment fee instead of the $25 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. 2021).
2
issuance of the appellate mandate, the defendant has failed completely to pay any fine, court
costs, or restitution that she owes. 4 Id.
The specialty court fee is authorized by Chapter 134 of the Texas Local Government
Code and applies only to defendants who are convicted of offenses committed on or after
January 1, 2020. See TEX. LOC. GOV’T CODE ANN. § 134.101 (a), (b) (6). This section, entitled
“Local Consolidated Fee on Conviction of Felony,” assesses a $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 technology fund, and
the county specialty court account. Id. § 134.101(b). The bill of costs in Appellant’s case
includes the following costs as enumerated in Section 134.101: $40 clerk of court, $4 county and
district court technology fund, $1 county jury fund, $25 county records management and
preservation fund, $10 courthouse security fund, and $25 county specialty court account. These
total $105 in costs. Per the statute’s effective date, Appellant is not obligated to pay the local
consolidated fee on conviction of a felony. Hayes v. State, No. 12-20-00222-CR, 2021 WL
1418400, at *2 (Tex. App.—Tyler Apr. 14, 2021, no pet.) (mem. op., not designated for
publication). Accordingly, we will modify the trial court’s judgment and order to withdraw
funds to delete these fees. See Sturdivant v. State, 445 S.W.3d 435, 443 (Tex. App.—Houston
[1st Dist.] 2014, pet. ref’d). We sustain Appellant’s sole issue.
DISPOSITION
Having sustained Appellant’s sole issue, we modify the trial court’s judgment and
attached order to withdraw funds to reflect Appellant’s court costs are $196.50 by deleting the
time payment fee, without prejudice to its assessment at a later date if Appellant does not timely
pay her court costs, and the local consolidated fee on conviction of a felony. We affirm the trial
court’s judgment as modified.
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 Appellant could avoid the
statutory conditions for imposing the fee by choosing to pay her monetary obligations on time. Moreover, there is
an available statutory remedy to challenge the time payment fee, if it is ever imposed. See TEX. CODE CRIM. PROC.
ANN. art. 103.008(a) (West 2018); see also Dulin v. State, 620 S.W.3d 129, 133 (Tex. Crim. App. 2021).
3
JAMES T. WORTHEN
Chief Justice
Opinion delivered January 5, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JANUARY 5, 2022
NO. 12-20-00236-CR
AMBER LEIGH MCGEHEE,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-0197-20)
THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, 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 delete the time payment fee, without prejudice to its
assessment at a later date if Appellant does not timely pay her court costs, and the local
consolidated fee on conviction of a felony; in all other respects the judgment of the trial court is
affirmed; and that this decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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