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Texas: Clerk May Not Bill Defendant for Attorney Fees Not Ordered by Court

Texas: Clerk May Not Bill Defendant for Attorney Fees Not Ordered by Court

by Matt Clarke

The Texas Court of Criminal Appeals held last year that a district clerk may not send an indigent prisoner a bill of costs for court-appointed attorney fees in his criminal case when the court did not make a finding that he was able to pay the fees and never ordered them paid.

Pursuant to a plea bargain, Jefferie Anteries Daniel was convicted of forgery of a check in Bexar County, Texas in 2002. The trial court assessed court costs of $295.25 against him, but assessed no costs for a court-appointed attorney. Although it was apparent from the judgment that Daniel was represented by counsel, there was no indication the attorney had been appointed by the court.

More than nine years after his conviction, the Bexar County District Clerk sent Daniel a bill of costs in the forgery case that assessed both the $295.25 in court costs and an additional $7,945.00 in fees for an appointed attorney. Daniel filed a post-conviction petition for writ of habeas corpus, challenging the attorney fees being assessed without a court order and without a determination that he was able to pay. He asserted that he was indigent at trial and remained indigent and unable to pay the appointed attorney fees.

The trial court recommended dismissal of Daniel’s petition, as it raised no issue which challenged his conviction, and the Texas Court of Criminal Appeals ordered additional fact finding. The trial court then found that there had been no hearing on Daniel’s ability to pay court-appointed attorney fees after he was determined to be indigent, and recommended that relief be granted.

The Court of Criminal Appeals held the trial court was correct the first time in that the petition raised no issues challenging Daniel’s conviction, and thus relief could not be granted under the habeas corpus statutes. However, the appellate court interpreted the petition as being one for a writ of mandamus, under which it could grant relief.

Referencing the requirements of Article 26.05(g), Texas Code of Criminal Procedure, and Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010), the Court of Criminal Appeals held that “the defendant’s financial resources and ability to pay are explicit critical elements in the trial court’s determination of the propriety of ordering reimbursement of costs and fees.” The Court found that the bill of costs “was not predicated upon any findings whatsoever with respect to these ‘critical elements.’” Because no findings were made during the nine years between the entry of the judgment and the clerk’s issuance of the bill of costs, there was “no basis for the assessment of attorney fees in the latter.”

The appellate court declined to grant post-conviction relief, but taking the petition as one for mandamus, conditionally granted extraordinary relief and ordered the district clerk to remove from the bill of costs the assessment of court-appointed attorney fees. See: In re Daniel, 396 S.W.3d 545 (Tex. Crim. App. 2013).


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Related legal case

In re Daniel