Dulin, Bryant Edward

• Court: Court of Criminal Appeals of Texas
• Decided: March 31, 2021
• Docket: PD-0857-19
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NOS. PD-0856-19 & PD-0857-19

BRYANT EDWARD DULIN, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF APPEALS BURNET COUNTY

KELLER, P.J., delivered the opinion of the Court in which HERVEY, RICHARDSON, NEWELL, and WALKER, JJ., joined. YEARY, J., filed a dissenting opinion in which KEEL, SLAUGHTER and MCCLURE, JJ., joined.

This case deals with a “time payment fee,” which is assessed if the defendant pays some or

all of his fine, court costs, or restitution “on or after the 31st day after the date on which a judgment

is entered assessing the fine, court costs, or restitution.”1 Ground one of the State’s petition contends

that the time payment fee must be struck in its entirety because it was assessed prematurely. We

conclude that the time payment fee must indeed be struck for being prematurely assessed because

1 TEX. LOCAL GOV’T CODE §133.103(a). DULIN — 2

a defendant’s appeal suspends the duty to pay court costs and therefore suspends the running of the

clock for the purposes of the time payment fee. As a consequence, even now, assessment of the time

payment fee in this case would be premature because appellate proceedings are still pending.

A. Background

Appellant was convicted of twelve offenses. Court costs were assessed in two of the cases

at the time of judgment. Those costs totaled $589 and $639. A bill of cost for each judgment

showed that the costs assessed included $25 for time payment fees.2 The judgments were rendered

and entered on June 19, 2018. The clerk’s bills of costs were signed and filed on June 19, 2018.

Appellant’s notices of appeal were filed on July 13, 2018.3

B. The Court of Appeals Opinion

Relying on our opinion in Salinas v. State,4 Appellant claimed on appeal that $22.50 of the

court costs assessed in each case violated the principle of separation of powers. The appellate court

agreed and deleted $22.50 from each judgment.5

C. Appeal suspends the obligation to pay court costs and thus suspends the running of the clock for the time payment fee.

The State filed a petition for discretionary review that claimed, among other things, that the

assessment of the time payment fee was premature because it was assessed at the time of judgment,

2 Each bill of cost actually listed three time payment fees (based on where the funds would go) that together totaled $25. 3 Appellant also filed a motion for new trial on July 5, 2018. 4 523 S.W.3d 103 (Tex. Crim. App. 2017). 5 Dulin v. State, 583 S.W.3d 351 (Tex. App.—Austin 2019). DULIN — 3

before the 31 days could have possibly elapsed. We agree that the assessment of the time payment

fee was premature, but for a different reason—the pendency of appeal suspends the obligation to pay

court costs.

The language of the time-payment-fee statute itself is illuminating in two respects: First, the

time payment fee becomes due as soon as the trial court’s judgment becomes final, assuming no

notice of appeal or motion for new trial has been filed.6 That does not seem to be a coincidence.

Second, because the time payment fee is triggered by the late payment of not only court costs, but

also of a fine or restitution, whatever we say about when court costs are due under the statute must

also apply to fines and restitution.

Under the Code of Criminal Procedure, the trial court has the power to direct when the

payment of a fine or court costs occurs: when sentence is pronounced, at a later date, or at designated

intervals.7 The trial court is also empowered to impose various sanctions on someone who fails to

pay a fine or court costs: an order of commitment (confinement in jail),8 civil collection resulting in

execution against the defendant’s property,9 or community service.10 There is also a statute giving

the trial court some direction about and control over the payment of restitution.11 But none of these

statutes address the effect of an appeal on these monetary obligations.

6 See TEX. R. APP. P. 21.4, 25.2. 7 TEX. CODE CRIM. PROC. art. 42.15. 8 Id. art. 45.046. 9 Id. art. 45.047. 10 Id. art. 45.049. 11 Id. art. 42.037. DULIN — 4

There is a statute that addresses whether a defendant can defer a sentence of incarceration

or community supervision by being released on bail pending appeal.12 Depending on the seriousness

of the offense, the trial court may: (1) be required to release the defendant on bail (misdemeanors),

(2) have discretion to allow or deny release on bail (some felonies with sentences less than ten years),

or (3) be forbidden to release the defendant on bail (certain felonies regardless of sentence and

felonies with sentences of ten years or more).13 But there is no comparable statute that addresses

whether a fine, court costs, or restitution can be deferred pending appeal.

It seems logical that the obligation to pay a fine or court costs would be suspended while an

appeal is pending, and caselaw suggests that indeed it is. In Fouke v. State, this Court explained that,

in a misdemeanor case involving purely monetary punishment, the voluntary payment of the fine and

court costs rendered the appeal moot.14 When a defendant has voluntarily paid the fine and costs,

he has “voluntarily elected to satisfy the judgment; there is nothing from which to appeal.”15

Payment of the fine and costs can be voluntary even if the defendant intends at the time of payment

to appeal the case to a higher court.16 The Court distinguished cases involving more serious offenses

because “the prison sentences which were imposed and served were not voluntarily accepted” and

“the collateral legal consequences were much more severe and imminent.”17 For the misdemeanor

12 Id. art. 44.04. 13 Id. 14 529 S.W.2d 772, 773 (Tex. Crim. App. 1975). 15 Id. 16 Id. 17 Id. The Court indicated these cases might also be distinguishable in other ways. Id. DULIN — 5

offense before the Court, however, the collateral consequences were “minimal.”18 The implication

of the holding that voluntary payment moots the appeal is that the appealing party does not have to

pay while the case is on appeal.

In Cody v. State, the Court distinguished Fouke.19 Cody involved a defendant who was

convicted of driving while intoxicated, sentenced to thirty days in jail probated for six months, and

assessed a fine and court costs.20 The fine and court costs were paid only after an order of

commitment was issued for his arrest and confinement until the fine and court costs were paid.21 The

Court did not consider payment under such circumstances to be voluntary.22 In addition, the Court

concluded that the defendant was not voluntarily submitting to his probated sentence and that the

collateral consequences of his unsatisfied punishment were not minimal.23

The defendant in Cody was forced by an order of commitment to pay his fine and court costs.

However, the Court did not say that the order was valid, and we cannot presume that the Court was

approving a practice of requiring a defendant to subject himself to arrest and confinement in order

to preserve his right to appeal. If failure to pay would subject the defendant to coercive sanctions,

18 Id. The Court in Fouke indicated that its holding was the “traditional” rule, which has “long prevailed in this state.” Id. The holding in Fouke has been followed more recently by two courts of appeals. Ex parte Rinkevich, 222 S.W.3d 900, 903 (Tex. App.—Dallas 2007, no pet.); Crawford v. Campbell, 124 S.W.3d 778, 780-81 (Tex. App.—Houston [1st Dist.] 2003, no pet.). 19 Cody v. State, 548 S.W.2d 401, 402-03 (Tex. Crim. App. 1977). 20 Id. at 402. 21 Id. at 403. 22 Id. 23 Id. DULIN — 6

then any such payment would be involuntary.24 Accordingly, if a non-incarceration misdemeanor

defendant’s payment of a fine and court costs while appeal is pending can in fact be voluntary, then

it must be because he is not legally required to pay the fine and costs while appeal is pending.

It is true that the Fouke rule of mootness appears to be confined to low level offenses where

the only punishment is monetary, but that does not change the legal principles involved. The

principles that underlie the Fouke rule easily explain the different treatment of more serious offenses.

Some defendants can be forced to begin a sentence of incarceration or a period of community

supervision because a statute so provides, while others might be able to defer the punishment

through bail. Any forced submission to punishment required by statute would be deemed

involuntary under Fouke, while remaining on bail would mean that the punishment had not been

accepted by the defendant. Also, defendants who appeal in the more serious cases will often have

time remaining on their sentence, and even if they do not, they may suffer significant collateral

consequences as a result of their convictions. All of this suggests that there is no reason to treat

monetary sanctions differently for more serious offenses than for offenses carrying monetary-only

punishment. Absent a statute requiring that monetary sanctions be paid while appeal is pending, we

conclude that appeal suspends the obligation to pay.

The conclusion that appeal suspends the obligation to pay monetary sanctions is also

consistent with how we handle appeals when a defendant dies. In Vargas v. State, we held that the

death of a defendant during the pendency of an appeal requires that the defendant’s prosecution be

24 Cf. State v. Stevenson, 958 S.W.2d 824, 827 (Tex. Crim. App. 1997) (“when a direct penalty may be imposed for the failure to answer a question,” statements made in response “are deemed involuntary.”). DULIN — 7

permanently abated.25 We noted the appellant’s attorney’s complaint that merely dismissing the

appeals would allow the State to assess court costs against the defendant’s estate.26 By permanently

abating the appeals, we prevented any such occurrence because the cases would never be final. We

suggested that, for statistical and reporting purposes, the trial court clerk should treat such cases as

having been dismissed.27 If the case never being final means that court costs are never paid, it

follows that the case not yet being final means that the court costs are suspended.

Practical considerations also counsel in favor of suspending the obligation to pay pending

appeal. If a defendant pays his costs to avoid the time payment fee and his case gets reversed and

an acquittal rendered (on appeal or on retrial), he would presumably be entitled to a refund. Because

a number of different government entities receive funds from various costs paid, the logistics of

recovering relatively small amounts of money to be refunded could be daunting. Even if a defendant

is not acquitted, a reversal might still result in the effective termination of a prosecution through a

hung jury or a prosecutor’s decision not to continue with the prosecution. But there would be less

certainty that the prosecution is truly over; the various entities could issue refunds and the

prosecution might later begin anew. These practical difficulties are avoided if court costs become

due only after the appeal is over.

Also, one remedy mentioned above for a failure to pay a fine or court costs is community

service. If a defendant performs community service to pay off his costs while appeal is pending and

then his conviction is reversed, one cannot undo the community service he has performed. The

25 659 S.W.2d 422, 423 (Tex. Crim. App. 1983). 26 Id. at 422. 27 Id. at 423 & n.1. DULIN — 8

consequences are potentially weightier for a fine, which could be a much larger amount than court

costs. What if the fine is $10,000 and the defendant works it all off through community service

before the case is reversed on appeal?28

And then there is restitution. Can the defendant be required to give the alleged victim

restitution while the case is pending on appeal? If that were true and the case were later reversed on

appeal and the defendant acquitted, would the trial court then be required to force the alleged victim

to give the money back? Would the trial court have to find the money elsewhere? And an acquittal

would not be the only result that might trigger a clawback of restitution. Just granting a new trial

would undo the restitution order. Restitution, or at least the amount previously imposed, might not

be re-imposed on retrial, or the prosecutor could decide not to seek a retrial. Or the restitution could

be the subject of dispute on appeal, which could result in reducing or eliminating the restitution

assessed.

All of the practical considerations discussed lead to the conclusion that the monetary

obligations we have been discussing (payment of fines, court costs, and restitution) are suspended

during the pendency of an appeal. And if those monetary obligations are suspended during the

pendency of an appeal, it follows that the running of the clock for the time payment fee is suspended.

We see it as no coincidence that the time payment fee is imposed at the exact time that the case

would be final if no appeal were pending. That suggests that the time payment fee was designed to

be triggered by the finality of the judgment and so should exclude the pendency of the appeal in the

time period calculations. Moreover, if pendency of an appeal did not stop the clock for the time

28 See TEX. PENAL CODE § 12.32(b). 12.33(b), 12.34(b) ($10,000 maximum fine for first, second, and third degree felonies). DULIN — 9

payment fee, then the defendant would ultimately face a monetary penalty for not paying the fine,

costs, or restitution despite having filed an appeal. Such a monetary penalty would mean that no

payment of fine, costs, or restitution would ever be voluntary, but we see nothing to suggest that the

legislature intended to abrogate our prior holdings that a defendant can, in an appropriate case, moot

his appeal by voluntarily paying a fine and court costs. Also, creating an incentive to pay a fine,

court costs, and restitution during the pendency of an appeal could lead to the adverse results

discussed earlier.

The pendency of an appeal stops the clock for purposes of the time payment fee.

Consequently, the assessment of the time payment fees in Appellant’s case is premature, and the fees

should be struck in their entirety, without prejudice to them being assessed later if, more than 30 days

after the issuance of the appellate mandate, the defendant has failed to completely pay any fine, court

costs, or restitution that he owes.29

We vacate the judgment of the court of appeals and remand the case to that court for further

proceedings consistent with this opinion.

Delivered: March 31, 2021 Publish

29 Due to our disposition of the State’s claim that the time payment fee must be struck as prematurely assessed, we do not address the State’s other claims. Along with the United States Supreme Court, we have recognized “the desirability of avoiding the adjudication of constitutional issues when at all possible.” Pena v. State, 191 S.W.3d 133, 136 (Tex. Crim. App. 2006). As the Supreme Court has said, “If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.” Id. (quoting Clinton v. Jones, 520 U.S. 681, 690, 117 S. Ct. 1636, 137 L. Ed. 2d 945 (1997)(quoting Spector Motor Service v. McLaughlin, 323 U.S. 101, 105 (1944))(ellipsis in Clinton)).Whether the time payment fee will be reimposed later is speculative at this point because Applicant could avoid the statutory conditions for imposing the fee by choosing to pay his monetary obligations on time. And there is an available statutory remedy to challenge the time payment fee, if it is ever imposed. TEX. CODE CRIM. PROC. art. 103.008(a).