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Hearing Required Before Assessment of Appointed Attorney Fees in Texas

On July 20, 2016, a Texas court of appeals held that, before fees incurred by a court-appointed attorney are assessed against an indigent criminal defendant, the court must hold a hearing and determine that the defendant is capable of paying at least a portion of the attorney fees.

Willie Henderson, Jr., was convicted of possession of a prohibited substance in prison. He appealed the court's assessment of court-appointed attorney fees against him because his status as an indigent was unchanged.

The court of appeals held that, under Texas Code of Criminal Procedure (C.C.P.) article 26.05(g), a court has the authority to assess attorney fees against a criminal defendant who received court appointed counsel. However, under C.C.P. article 26.04(p), once a court determines that a defendant is indigent, the defendant is presumed to remain indigent for the remainder of the proceedings. Therefore, before any attorney fees are imposed, the court must determine that the defendant is capable of offsetting at least a portion of the assessed attorney fees. This must be supported by evidence in the record.

In this case, the trial court's judgement ordered Henderson to pay $323 in court costs, but did not assess any attorney fees against him. However, the bill of costs shows Henderson owing $648, including $300 in attorney fees.

Attorney fees set forth in a bill of costs are effective even if they are not in the court's written judgment. However, there was no evidence that Henderson's financial circumstances have materially changed. This means that the evidence is insufficient to support assessment of attorney fees.

Therefore, the court ordered the bill of costs modified to delete the $300 attorney fee assessment and otherwise affirmed the judgment of the trial court. See: Henderson v. State, No. 12-15-00285-CR (12th Tex. App. 2016).

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Related legal case

Henderson v. State