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Indigent Texas Prisoners May No Longer be Required to Repay Cost of Court-Appointed Counsel

by Bill Habern

On March 11, 2009, the Texas Court of Appeals in Amarillo issued an opinion in a case involving Gilbert Alexander Perez, an indigent defendant. Perez raised two issues on appeal. First was the extreme sentence imposed in his case (25 years for possession of less than four grams of meth); however, that issue was quickly dismissed by the appellate court. The second issue concerned the trial court’s order that Perez repay to the state the sum of $1,250.00, which was the cost of representation by his court-appointed attorney. The Court of Appeals, citing Tex. Code Crim. Proc. Art. 26.05(g), removed the cost of attorney fees from the judgment.

 For years indigent Texas prisoners have been subject to repayment of costs, fees and fines after being convicted. The good news is that in the past no one tried to collect these expenses. Recently there have been attempts by the state to recoup such funds, but until the ruling in Perez’s appeal, no one carefully examined the procedure for repayment of court-related costs.

In 2007, many District Clerk offices across the state began to attach and levy funds in prisoners’ institutional trust accounts through a garnishment process in an attempt to collect assessed costs. After the Texas Court of Appeals ruled that prisoners had the right to contest the amount of the costs the state was trying to recover, the effort to collect those funds became bogged down in litigation.

 When the attachment of trust funds became more expensive and complicated than it was worth, another approach was tried, instituted by Texas Parole authorities. Thus far it appears those efforts have been limited to the greater Houston area (which happens to be one of the largest metropolitan areas in the United States). Under this procedure, when parolees report for their monthly meetings they are given a form to have completed by the District Clerk’s office. The District Clerk enters the amount of costs, fees and fines that are owed; offenders return the form to their parole officers, who instruct them how much must be paid each month toward reduction of those costs. Of course, these are the same prisoners who are usually indigent, go to prison broke, and upon their release can seldom afford to put a quarter in a parking meter.

 In Perez’s case, the Court of Appeals noted that under Art. 26.05, particularly Art. 26.05(g), before costs are assessed against a defendant (who is usually indigent), the trial court must enter findings that the defendant is: 1) capable of, and 2) able to repay such expenses either during the term of the case or upon release. Otherwise, no entry of costs related to attorney fees should be entered.

 In regard to Perez’s conviction, the record only reflected that he was indigent, lived with a relative and had no employment. The trial court did not conduct proper fact finding to determine a reasonable amount of attorney fees, nor was evidence introduced to establish findings of fact relative to Perez’s ability to raise funds to pay the fees. Thus, the Court of Appeals found that “no evidentiary basis exists supporting the trial court’s decision to levy any fees upon appellant.” Consequently, Perez will not be burdened by the collection efforts of the Parole Board once he is paroled.

 Over the 37 years of my practice in Texas, defense lawyers as well as judges have failed to conduct fact finding pursuant to Art. 26.05(g) to ascertain the ability of defendants to repay court-appointed attorney fees. The Perez ruling opens the door for prisoners to review their judgments to determine the costs they owe, and to possibly take action to have those costs set aside. However, the appellate courts could find that the failure to object at the time of sentencing resulted in a waiver of the right to challenge the assessment of fees on appeal. What will happen if writs are filed claiming ineffective counsel on this point is unknown, as that issue has not yet reached the courts.

Texas prisoners of today who will be parolees tomorrow should start planning now to challenge the validity of the court-assessed fees they will have to pay upon their release. The Parole Board’s new cost-collection procedure will result in more financial stress for released prisoners unless they have their fee assessments overturned, as did Perez. See: Perez v. State, 280 S.W.3d 886 (Tex. App. Amarillo 2009).

 Defense lawyers in Texas are encouraged to put in their stack of forms for each court-appointed case a motion seeking a hearing on their client’s ability to raise and pay court-assessed fees and costs.

William T. Habern is a founding partner of Habern, O’Neil & Pawgan LLP in Huntsville, Texas, a law firm that specializes in the areas of parole and prison-related litigation as well as criminal law.

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