Mark Schwader v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 21, 2021
• Docket: 12-20-00223-CR
• Status: Published

Opinion

NO. 12-20-00223-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MARK SCHWADER, § APPEAL FROM THE 114TH APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION Mark Schwader appeals the court costs set forth in the trial court’s judgment. In one issue, Appellant argues that the portion of these costs, which consist of a “time payment” fee, as set forth in the trial court’s bill of costs, is unconstitutional. We modify and affirm as modified.

BACKGROUND Appellant was charged by indictment with possession of less than one gram of methamphetamine and pleaded “guilty.” The trial court deferred finding Appellant “guilty,” and placed him on community supervision for five years. Subsequently, the State filed a motion to proceed to final adjudication, in which it alleged that Appellant violated certain terms and conditions of his community supervision. Following a hearing on the matter, the trial court found the allegations in the State’s motion to be “true,” revoked Appellant’s community supervision, adjudicated him “guilty” as charged, and sentenced him to confinement for two years. This appeal followed.

TIME PAYMENT FEE In his sole issue, Appellant argues that costs attributable to the time payment fee, as set forth in the trial court’s bill of costs, is unconstitutional. The trial court’s judgment sets forth that Appellant is obligated to pay court costs in the amount of $74.00. The judgment includes a document entitled “Order to Withdraw Funds,” which states that Appellant incurred “[c]ourt costs, fees, fines and/or restitution in the amount of $74.00.” The bill of costs itemizes the court costs imposed, which total $314.00 with a remaining balance of $74.00. The bill of costs also includes a $25.00 “time payment” fee with a remaining balance of $6.75. Furthermore, it includes a paragraph stating that an additional $15.00 fee will be assessed if any part of the court costs is paid on or after the 31st day after the judgment assessing the court costs is entered. But see TEX. LOC. GOV’T CODE ANN. § 133.103(c), redesignated as TEX. CODE CRIM. PROC. ANN. art. 102.030 (West Supp. 2020) (treasurer shall deposit ten percent of fees collected under this section in general fund of county or municipality for purpose of improving efficiency of administration of justice in county or municipality). The court of criminal appeals recently held that the pendency of an appeal “stops the clock” for purposes of the time payment fee. Dulin v. State, 620 S.W.3d 129, 133 (Tex. Crim. 2021). Consequently, the assessment of the time payment fee in Appellant’s case is premature and should be struck in its entirety, without prejudice to its being assessed later if, more than thirty days after the issuance of the appellate mandate, the defendant has failed completely to pay any fine, court costs, or restitution that he owes. Id. 1

DISPOSITION Based on the foregoing, we modify the trial court’s judgment, along with its attached order to withdraw funds, to reflect that Appellant’s court costs are $67.25 by deleting the $6.75 time payment fee balance, 2 without prejudice to its being assessed later, if, more than thirty days after the issuance of our mandate, Appellant fails to completely pay fines, court costs, or restitution he owes. We affirm the judgment as modified.

BRIAN HOYLE Justice

1 Because the fee assessment Appellant challenges in his first issue is premature, we do not consider the constitutionality of the fee. See TEX. R. APP. P. 47.1. 2 The $74.00 in court costs ordered by the trial court in its judgment of conviction is reflected in the “balance” column of the bill of costs. Although Appellant’s brief references the time payment fee assessed as being $25.00, he makes no argument in his brief that he is seeking to appeal court costs imposed in the order placing him on community supervision, nor is that order referenced in his notice of appeal. Thus, we have limited our analysis to the court costs ordered in the judgment of conviction.

2 Opinion delivered July 21, 2021. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

3 COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 21, 2021

MARK SCHWADER, Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 114th District Court of Smith County, Texas (Tr.Ct.No. 114-0792-19)

THIS CAUSE came to be heard on the appellate record and the briefs filed herein, and the same being considered, because it is the opinion of this court that the judgment of the court below should be modified and as modified, affirmed. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be modified to reflect that Appellant’s court costs are $67.25 by deleting the $6.75 time payment fee balance with prejudice to its being assessed later if, more than thirty days after the issuance of our mandate, Appellant fails to completely pay fines, court costs, or restitution he may owe; in all other respects the judgment of the trial court is affirmed; and that this decision be certified to the court below for observance. Brian Hoyle, Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.