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Texas Criminal Court Fees are a Tax on Poor Defendants

by Matt Clarke

The Texas legislature has erected such a hodgepodge of criminal court fees that even the court administrators and clerks don’t know how to apply them. These fees, which are frequently not used for their intended purposes, amount to a hidden tax on the poorest members of society ensnared in Texas’ criminal justice system.

“Sometimes, I can’t even tell my client what the bill is for,” said Austin defense attorney David Gonzales.

He is not alone. The Texas Office of Court Administration (TOCA) receives “hundreds of calls from court officials about how to assess and prioritize fines, fees and surcharges in criminal cases,” according to a report the agency published in 2009. “The sprawling number of state and local fees and court costs that state law prescribes as a result of a criminal conviction amounts to a nearly incomprehensible package.”

The fee system is so complex that people convicted of identical crimes might be charged vastly different fees, possibly violating the constitutional guarantee of equal treatment under the law.

Nor is it always possible to determine how a particular fee is actually used; typical legislative practice includes the raiding of fee accounts to balance the budget or fund pet projects. Some fees, such as the $50 clerk’s fee and $25 prosecutor’s fee, go straight into a county’s general fund where they can be used to pay for any budget item, court-related or not.

Every person convicted of a crime in Texas pays a “Consolidated Court Cost” fee of $40 for a Class C misdemeanor, $83 for Class A and B misdemeanors, and $133 for a felony. All criminal defendants are also charged at least six additional fees with titles such as “records management and preservation fee,” “clerk’s fee,” “county and district court technology fund fee” and “courthouse security fee.”

Those arrested with a warrant are charged a $50 fee; those without a warrant pay $5. Entering or leaving jail incurs a $5 fee, and DUI defendants are charged a “visual recording fee.” A $30 “state traffic fine” is imposed on all traffic violations.

“We have a ‘school crossing fee’ that nobody – nobody – can tell me what comes of it,” observed state Senator John Whitmire, who chairs the Senate Jurisprudence Committee.

The total bill can easily exceed $600. The cost for those placed on probation is much higher: $4,000 to $5,000, according to a 2009 TOCA survey.

Some of the fees go to the state’s Compensation to Victims of Crime (CVC) Fund, administered by the Office of the Attorney General. The CVC receives revenue from Consolidated Court Cost fees, restitution installment fees and parole administration fees, among other sources. From 2004 to 2012, the CVC received approximately $100 million per year, mostly from Consolidated Court Cost funds.

Criminal court fees aren’t necessarily fair. Defendants convicted of sex crimes pay a $250 “DNA testing fee” plus an additional “DNA collection fee” regardless of whether DNA was collected or tested in their cases. Some of the fees for DNA testing actually end up in a state highway fund.

“Breath alcohol testing fees” in DUI cases don’t necessarily go to pay for breath alcohol testing any more than DNA fees necessarily pay for DNA testing. Texas judicial administrators estimate that of every three dollars collected in fees, one will be spent for something unrelated to the court system.

For example, court fees have paid for rehabilitative services for people with brain injuries and an obesity study of minority children in the Houston area. They also fund the salaries of state game wardens. Two million dollars in court fees went to pay a private company to install Internet cameras along the Mexican border so people could view them online and report illegal border crossings.

Court-imposed fees are also raided to balance the budget. In 2011, Texas legislators took $20 million in fees to pay for state employee pensions, and moved $135 million from the Fugitive Apprehension Fee account, intended to help apprehend parolees who abscond, to the state’s general fund where it can be used for any purpose.

Another questionable method of using fees to balance the budget on paper is to let them remain uncollected, so they appear as a large amount of “accounts receivable.” That may be why almost $5 billion in uncollected fees is included in designated accounts that can be used to appear to “balance” budgets over and over again.

“The budget is far too much based on diversion and deception,” according to state Senator Kirk Watson. “When people are told their money is going to be spent for something specific, a promise is made: If we collect this tax from you, we will spend it for this practice.”

“If we’re not going to use a fee for a particular purpose, we shouldn’t collect it,” added Jim Allison of the County Judges & Commissioners Association of Texas.

In fact, collecting fees that are not used for their intended purpose and are in effect general taxes may be unconstitutional. Further, the fees impose an onerous and often unjustified burden on people who are already among society’s poorest – criminal defendants.

“We’re trying to squeeze more money from people who have a hard time getting jobs because they have a criminal record, or have mental illness problems or substance abuse problems,” stated Ana Yáñez-Correa, executive director of the Texas Criminal Justice Policy Coalition. “These fees are a tax on the poor,” she concluded.

Poor defendants who can’t pay the fees up front face the additional burden of fees on fees. There is a $25 fee to set up a schedule by which to pay fees. It costs another $12 for a “restitution installment fee” to pay off court-ordered restitution over time, and a $2 “transaction fee” each time a payment is made.

Although lawmakers are aware of the absurdity of the criminal court fee system, they don’t want to butcher their cash cow. The Consolidated Court Cost fees alone bring in almost $200 million annually. In 2009 and 2011, the Texas Judicial Council – the policy-making body for the state’s courts – unsuccessfully urged the legislature to simplify the costs and fees.

There is, however, one positive precedent from a different type of fee. When the legislature attempted in 2011 to empty the System Benefit Fund account, which is funded by fees on telephone bills and intended to help the elderly and poor pay their utility costs during the summer, state Rep. Sylvester Turner raised the issue publicly, causing lawmakers to back down. Unfortunately, people who have been convicted of crimes elicit much less sympathy, so the myriad of criminal court fees and their misuses will most likely continue unabated.

“Lawmakers are like anybody else – they do what they can,” noted former Texas chief deputy comptroller Billy Hamilton. “And nobody’s ever going to question it if they raise fees on criminals.”

Sources: Austin American-Statesman; “Compensation to Victims of Crime Fund,” Legislative Budget Board Staff (Issue Brief, February 2013)

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