Richard Dubart Teague v. the State of Texas

• Court: Texas Court of Appeals, 6th District (Texarkana)
• Decided: April 20, 2026
• Docket: 06-24-00165-CR
• Status: Published

Opinion

In the Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-24-00165-CR

RICHARD DUBART TEAGUE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 188th District Court Gregg County, Texas Trial Court No. 54782-A

Before Stevens, C.J., van Cleef and Rambin, JJ. Opinion by Justice Rambin Concurring Opinion by Justice van Cleef Dissenting Opinon by Chief Justice Stevens Concurring Opinion by Justice Rambin OPINION

Richard Dubart Teague pled guilty to possession of child pornography with “intent to

promote.” The trial court sentenced Teague to eight years in prison. Via this appeal, Teague

contests neither his guilt nor his punishment.

Instead, Teague, via appointed appellate counsel, contests the trial court’s finding that he

has the ability “to offset in part or in whole” the cost of appointed trial counsel. The record

shows that, at the time he was provided appointed trial counsel, Teague did not have a job and

had no income. The record also shows that between then and sentencing, Teague got a job and

had been working for approximately two years. For that and other reasons, we find that there

was a basis for the trial court’s order that Teague reimburse Gregg County for the expenses of

appointed trial counsel. We affirm.

I. Background

Teague was charged with the second-degree felony offense of possessing child

pornography with “intent to promote.”1, 2 The date of the offense alleged in the indictment was

“on or about the 23rd day of May, 2022.” Teague was fifty-two years old at the time of the

offense.

1 See TEX. PENAL CODE ANN. § 43.26(e), (g) (Supp.); see also TEX. PENAL CODE ANN. § 43.21(a)(5) (defining “[p]romote” as “to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do the same”). 2 A partial history of relevant subsections (b)(1) and (g) of Section 43.26 of the Texas Penal Code in effect at the time of Teague’s alleged offense is hereby provided. See Act of May 23, 1997, 75th Leg., R.S., ch. 933, § 1, sec. 43.26(b)(1), 1997 Tex. Gen. Laws 2931, 2931 (repealed 2025); Act of May 31, 2015, 84th Leg., R.S., ch. 933, § 2, 2015 Tex. Gen Laws 3221, 3222 (amended 2023, 2025) (current version at TEX. PENAL CODE § 43.26(g)). 2 In a verified request for appointment of counsel on June 13, 2022, Teague attested that, as

of that date, he did not have a job and that his income was zero. He attested that his wife’s

income was likewise zero. He attested that he and his wife owned their house, but they had car

loan payments, medical upgrade-home repair payments, car insurance, phone, cable, and utility

expenses. He further attested that, though his wife’s income was zero, he was able to satisfy a

$15,000.00 bond via his wife’s resources. The trial court, however, did not grant Teague

appointed counsel at the time of his application.

The record contains a June 26, 2023, appearance by counsel. Counsel appears to have

been retained as of June 2023, as the trial court had not yet granted Teague’s application for

appointed counsel, and the record does not contain a request for payment regarding the June

2023, appearance of counsel. The order appointing trial counsel, appended to the end of the

application for appointed counsel, was signed on January 3, 2024. The order states that the

appointment was based on a finding that “the defendant [wa]s (circle one) indigent or the

interests of justice require.” Neither option is circled. Following appointment of trial counsel,

Teague waived his right to a jury trial and pled guilty to the charge.

At the August 29, 2024, plea hearing, a stipulation of evidence by Teague, the offense

report, and video recordings were admitted into evidence. In the stipulation of evidence, Teague

waived his right to confront and cross-examine witnesses and consented to the introduction of

written and documentary evidence against him. The offense report indicates that an undercover

officer with the Office of the Attorney General was on an online file-sharing network often used

to share child pornography. On multiple dates in February and March 2022, the officer

3 downloaded electronic files of child pornography from a certain internet protocol (IP) address.

The offense report states that “[t]he nude children depicted [in the video recordings] are mostly

pre-pubescent and of such a young age that it is obvious they are children.” After receiving the

video recordings from the undercover officer, a special agent with the Texas Department of

Public Safety (DPS) then obtained a subpoena to be served on the internet-service provider to

ascertain the physical location of the IP address. The internet-service provider provided

investigators with an address in Longview, Texas. The DPS special agent then drove to the

address and observed it to be the location of a business. The special agent spoke to the owner

and the manager of the business. Both assisted the special agent in comparing when the videos

were downloaded with company work schedules. That comparison focused the investigation on

Teague. Teague often worked long weekend shifts and used an on-premises bedroom when he

did so. The special agent obtained a warrant to search the location and any electronic devices

seized at the location. The special agent returned on May 23, 2022, when Teague was alone at

the business location. The special agent found Teague in the bedroom. While searching the

bedroom, the special agent found and seized a laptop. The laptop contained Teague’s email

account and credit card data, indicating it belonged to him. Examination of the laptop revealed

multiple images of child pornography. As stated in the offense report, “For example, one image

depicts a female toddler performing oral sex on an adult male.”

During the plea and sentencing hearings, neither Teague nor the State specifically

addressed Teague’s ability to repay attorney fees. At the plea hearing, the trial court heard

Teague’s plea of guilt and then heard testimony from Teague’s wife. Teague’s wife testified to

4 what would happen to her, financially and otherwise, if Teague were sentenced to prison. She

testified that Teague worked at a convenience store and had been for approximately two years.

She gave no testimony regarding how many hours Teague worked or his rate of pay. She stated

that sometimes Teague made enough to cause her Social Security benefits to be reduced. She

testified that Teague managed the finances. She stated that, if Teague were imprisoned, she

believed the result would be “I lose my land, I lose my house, I lose the car.” She testified to her

medical conditions and health issues. She stated that, in her opinion, if Teague were imprisoned

and no longer able to care for her, she would die. She testified, however, that her health issues

began years before Teague committed the offense to which he pled guilty. At the conclusion of

the hearing, the trial court announced that Teague would be receiving a prison sentence and that

it had not “made a decision yet as far as the number [of years], but these offenses are just really,

really, really bad.” The trial court stated that Teague’s sentence would be pronounced at a

subsequent hearing, but in the meantime, “I’m going to give you time to help your wife out, try

to get all these affairs in order.”

The trial court apparently had the benefit of a pre-sentence investigation (PSI) that went

into greater detail regarding Teague’s finances. Teague asked the trial court to consider the PSI.

The trial court considered the PSI important, but the PSI is not part of our record on appeal.

The trial court held Teague’s sentencing hearing on October 7, 2024. The record

contains a request for payment by Teague’s trial counsel dated October 7, 2024. The lower

portion of that document is a section for the trial court to approve the request. It bears the trial

judge’s signature approving the request and a handwritten date of October 7, 2024. The

5 document bears a filestamp from the district clerk’s office indicating that it was filed at 10:05

a.m. on the same date. The record contains a bill of costs without attorney’s fees. This too is

filestamped at 10:05 a.m. That version of the bill of costs bears Teague’s signature,

acknowledging receipt. Though that version does not have a dollar amount for attorney fee

reimbursement, it states immediately below Teague’s signature, “This does not include Attorney

Fee’s [sic], Restitution, Reimbursement and/or any other additional cost that may be applicable.”

The record contains another bill of costs with an attorney fee reimbursement, also filestamped at

10:05 a.m. There was no discussion of the request for payment at the sentencing hearing, nor

was there a discussion at the sentencing hearing regarding the trial court’s indigency finding or

of Teague’s ability to repay the cost of appointed trial counsel.

At the sentencing hearing, Teague asked for the appointment of appellate counsel. The

trial court, from the bench, appointed Teague appellate counsel. The trial court sentenced

Teague to eight years’ confinement in prison.

The trial court’s judgment incorporates a copy of the bill of costs showing an attorney fee

reimbursement. The trial court’s judgment is filestamped at 2:57 p.m. The trial court’s

judgment found that Teague “ha[d] financial resources that enable Defendant to offset in part or

in whole the cost of” trial counsel and ordered Teague to reimburse Gregg County $1,678.75

pursuant to Article 26.05(g) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM.

PROC. ANN. art. 26.05(g) (Supp.).

6 II. The Statutory Scheme Regarding Appointed Counsel

There are many statutes bearing on the appointment of counsel and the reimbursement of

the expenses of appointed counsel. We consider these statutes because related statutes should be

considered together,3 in a way that avoids “undermin[ing]” the “practical effect” sought to be

achieved by the Legislature.4 “[W]e are to presume that the Legislature intended for the entire

statutory scheme to be effective.”5 This is not always easy; considering statutes together to

achieve the result intended by the Legislature can sometimes require two flowcharts to sort out,

even for a sum as small as $52.00 dollars.6

It is worth noting at the outset what this is not about:

An ability-to-pay inquiry is not fundamental to the adjudicatory system; it is a post-trial procedure that has nothing to do with adjudication; it does not ensure a jury, a fair trial, a correctly informed sentencing judge, or a defendant’s ability to understand the proceedings against him. It does not implicate “the integrity of judicial sentencing proceedings” or “the criminal adjudicatory process[.]”

Cruz v. State, 698 S.W.3d 265, 269 (Tex. Crim. App. 2024) (alteration in original). “In short, an

ability-to-pay inquiry made during or right after sentencing bears no consequence to the

adjudicatory process.” Id.

3 See Diruzzo v. State, 581 S.W.3d 788, 799 (Tex. Crim. App. 2019). 4 State v. Green, 682 S.W.3d 253, 275 (Tex. Crim. App. 2024). 5 Bradshaw v. State, 707 S.W.3d 412, 420 (Tex. Crim. App. 2024). 6 See id. at 414, 418–19. This is true even when looking at the plain language of the statutes involved in an effort to ascertain their combined operation. Id. at 420. Bradshaw noted that two courts of appeals had held that “the conviction date controls the assessment [of the cost at issue]” whereas four courts of appeals had held that “the offense date controls the assessment.” Id. at 415. The Texas Court of Criminal Appeals stepped in “to resolve this conflict.” Id. at 416. It turns out that neither the two nor the four had it right. See id. at 420. Standing alone, neither the offense date nor the conviction date controlled. See id. Instead, the date of the offense controlled the law applicable to the case, and if the law as of that date called for the imposition of the cost at sentencing, then the conviction date controlled. Id. 7 A. The Nature of Attorney Fee Reimbursement Orders

A trial court may “order a defendant to re-pay costs of court-appointed legal counsel that

the court finds the defendant is able to pay.” Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim.

App. 2013) (citing TEX. CODE CRIM. PROC. ANN. art. 26.05(g)). Regarding ability to pay, “[a]

defendant who is determined by the court to be indigent is presumed to remain indigent for the

remainder of the proceedings in the case unless a material change in the defendant’s financial

circumstances occurs.” TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (Supp.). However,

“[e]vidence need not be conclusive” in order “to rebut this presumption.” Eaglin v. State, 710

S.W.3d 833, 850–51 (Tex. App.—Houston [1st Dist.] 2024, pet. ref’d).7 “[T]he 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.” Armstrong v. State,

340 S.W.3d 759, 765–66 (Tex. Crim. App. 2011) (alteration in original) (quoting Mayer v. State,

309 S.W.3d 552, 556 (Tex. Crim. App. 2010)).

When it comes to the reimbursement of the costs of court-appointed counsel, “indigency”

is linked specifically and statutorily to the cost of counsel: “For the purposes of this article and

Articles 26.04 and 26.05 of this code, ‘indigent’ means a person who is not financially able to

employ counsel.” TEX. CODE CRIM. PROC. ANN. art. 1.051(b) (Supp.). The statutory form for

7 For example, “it is not uncommon for relatives or others to pay a lawyer to represent an indigent defendant with their own resources, and their resources usually do not negate the defendant’s indigency.” Eaglin, 710 S.W.3d at 850. Thus, “[t]he retention of counsel in lieu of a court-appointed lawyer is not necessarily determinative of whether a defendant remains indigent.” Id. Even so, “the replacement of appointed counsel with retained counsel after a finding of indigency rebuts the presumption of continued indigency.” Id. (citing Easily v. State, 248 S.W.3d 272, 281 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d)). “The trial court has no duty to appoint counsel where an indigent defendant has managed to retain counsel or where the defendant has made no showing of indigency.” Gray v. Robinson, 744 S.W.2d 604, 607 (Tex. Crim. App. 1988) (orig. proceeding). 8 requesting appointed counsel calls for the requesting defendant to state, under oath, that “I am

without means to employ counsel of my own choosing and I hereby request the court to appoint

counsel for me.” TEX. CODE CRIM. PROC. ANN. art. 26.04(o) (Supp.) (emphasis added).

Reimbursement is even more tightly linked to the cost of appointed counsel. See TEX. CODE

CRIM. PROC. ANN. art. 26.05(g). At the outset of a case, there might be room for discussion

about what the cost of private counsel would be. But by the time the trial court enters judgment,

the costs of trial counsel have been incurred, and thus, the trial court may not assess a

reimbursement that exceeds the “the actual costs” incurred by the county in providing appointed

counsel to the defendant (or, in counties with a public defender’s office, the amount “that would

have otherwise been paid to an appointed attorney had the county not had a public defender’s

office”). Id. The indigency inquiry regarding reimbursement of counsel is specific to that

amount. See McFatridge v. State, 309 S.W.3d 1, 6 (Tex. Crim. App. 2010).8 Given this

specificity, even a defendant in generally dire financial straits may nonetheless be non-indigent:

“[A]n individual’s negative net worth does not necessarily translate into indigence; the real

question is whether the defendant is capable of paying for legal counsel . . . .” Whitehead v.

State, 130 S.W.3d 866, 878 (Tex. Crim. App. 2004) (emphasis added).

8 In McFatridge, a defendant claimed indigency regarding appellate counsel and regarding the ability to pay for an appellate record. McFatridge, 309 S.W.3d at 5. The Court of Criminal Appeals held, “A defendant can be found indigent for one purpose without being found indigent for the other.” Id. McFatridge was not an attorney fee reimbursement case. Id. at 9. Instead, it involved a challenge to the trial court’s indigency determination regarding the cost of counsel for something that, from the trial court’s vantage point, would occur in the future: an appeal. Id. The Court of Criminal Appeals put a number on that: “The record contains no estimate of what the cost of competent private legal counsel would be for a typical [driving while intoxicated] appeal in Navarro County, but we have no reason to believe it should exceed $6,670.[00].” Id. 9 A defendant’s obligation to pay a reimbursement assessed in a trial court’s judgment does

not arise until appeal of that judgment is final: “[T]he pendency of appeal suspends the

obligation to pay court costs.” Dulin v. State, 620 S.W.3d 129, 130 (Tex. Crim. App. 2021).

The Court of Criminal Appeals came to this conclusion via the analysis of several statutes

regarding court costs. “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.” Id. (citing TEX. CODE CRIM. PROC. ANN. art. 42.15). “There is

also a statute giving the trial court some direction about and control over the payment of

restitution.” Id. (citing TEX. CODE CRIM. PROC. ANN. art. 42.037). In addition, there are statutes

regarding what sanctions a trial court may impose if costs are not paid. Id. (citing TEX. CODE

CRIM. PROC. ANN. arts. 45.046, .047, .049).

As of today, “reimbursement fee” is the statutory term for a court-ordered reimbursement

of the costs of appointed counsel:

If the judge determines that a defendant has financial resources that enable the defendant to offset in part or in whole the costs of the legal services provided to the defendant . . . the judge shall order the defendant to pay . . . as a reimbursement fee the amount that the judge finds the defendant is able to pay.

TEX. CODE CRIM. PROC. ANN. art. 26.05(g). That has not always been the statutory term. For

example, at the time of Cates, Article 26.05(g) expressly considered attorney fee reimbursements

as “costs of court.” Cates, 402 S.W.3d at 251 (citing TEX. CODE CRIM. PROC. ANN. art.

26.05(g)).9 So does Cates still apply? Do attorney fee reimbursements fit in the category of

9 As of 2013, Article 26.05(g) stated, “If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, . . . the court shall order the defendant to pay the 10 “costs” or “costs of court” as those terms appear in statutes other than Article 26.05(g)? The

answer to both questions is “Yes.”

The change from “court costs” to “reimbursement fee” sprang from the Legislature’s

response to a 2017 decision of the Court of Criminal Appeals. In Salinas v. State, the court

found the Consolidated Fee Statute (at that time found at Section 133.102 of the Texas Local

Government Code) unconstitutional-in-part because 0.0088 percent of the funds collected under

that statute went to an “abused children’s counseling” program and 9.8218 percent went to a

“comprehensive rehabilitation” program. Salinas v. State, 523 S.W.3d 103, 107–09 (Tex. Crim.

App. 2017). As of 2017, though, the abused children’s counseling fund no longer existed, so

those funds went to the State’s General Revenue Fund. Id. at 109–110. As for the rehabilitation

program, while crime victims were doubtlessly among those who availed themselves of the

program, the program was open to all who suffered from qualifying conditions, including

traumatic brain injuries. Id. at 108–09. On that basis, and as regards those programs, the

Consolidated Fee Statute was held to be a tax, and therefore “unconstitutional in violation of the

Separation of Powers provision of the Texas Constitution.” Id. at 109, 110.

In its 2019 Regular Session, the Legislature responded with Senate Bill 346. See Act of

May 23, 2019, 86th Leg., R.S., ch. 1352, 2019 Tex. Gen. Laws 3981–4035.10 That bill amended

amount that it finds the defendant is able to pay.” Act of May 24, 2001, 77th Leg., R.S., ch. 906, § 8, sec. 26.05(g), 2001 Tex. Gen. Laws 1800, 1808 (amended 2015, 2019) (current version at TEX. CODE CRIM. PROC. art. 26.05(g)). 10 The Senate Research Center’s “Sponsor’s Statement of Intent” provides that,

In the wake of the Salinas case, appellate courts have ruled several other courts costs do not serve a legitimate criminal justice purpose. The loss of the proceeds from additional criminal court costs 11 numerous statutes to rename “fees” as “reimbursement fees” and to state that reimbursements as

“court costs” would thereafter be called a “reimbursement fee.” Id. Among the statutes so

modified was the time-payment reimbursement fee addressed in Dulin, Article 102.030 of the

Texas Code of Criminal Procedure.11 See id. at 4010. The 2019 revision of the time-payment

fee statute is relevant to the present analysis because, as a result of Senate Bill 346, Article

102.030(a)(2) makes the time payment fee applicable following a judgment “assessing the fine,

court costs, restitution, or other reimbursement fee.” Id.; TEX. CODE CRIM. PROC. ANN. art.

102.030(a)(2). Whether something is a reimbursement matters because, later in 2019, the Court

of Criminal Appeals held that Salinas was limited to instances where funds were collected to

offset future expenses: “Salinas did not erect a new requirement that all court-cost statutes,

including those imposing reimbursement-type costs, must explicitly allocate funds to be

expended in the future for legitimate criminal justice purposes.” Allen v. State, 614 S.W.3d 736,

744 (Tex. Crim. App. 2019). Consequently,

[w]hen a court-cost statute seeks to recoup expenses legitimately incurred in connection with the prosecution of a defendant’s criminal case, then the collection

being found unconstitutional could have negative impacts on the provisions of vital services, particularly those paid for by local government entities with the proceeds from court costs.

LEGIS. REFERENCE LIBR. OF TEX., SENATE RESEARCH CENTER, Bill Analysis, Tex. S.B. 346, 86th Leg., R.S. (2019) https://lrl.texas.gov/legis/billsearch/BillDetails.cfm?legsession=86- 0&billTypeDetail=SB&billNumberDetail=346&billsuffixDetail= (follow Enrolled (Senate Research Center) hyperlink). We do not consider this legislative material regarding the construction of any particular statute, but instead as material bearing on the “practical effect” of what the Legislature intends in this field. See Green, 682 S.W.3d at 275; see also Gray, 744 S.W.2d at 606 (“These statutes [regarding the indigent defense system] have been consistently construed according to their clear, unambiguous and strict mandates, which is in keeping with the tight budgetary limitations of this State.” (emphasis added)). 11 Dulin addressed the time payment fee under a prior and differently enumerated statute. Dulin, 620 S.W.3d at 129; see Brown v. State, No. 06-20-00017-CR, 2020 WL 3865736, at *2 (Tex. App.—Texarkana July 9, 2020, no pet.) (mem. op., not designated for publication). 12 of such fees is a proper part of the judicial function and does not render the courts tax gatherers in violation of the separation of powers clause.

Id. at 745.

B. Ways of Collecting Costs

One way the State may collect on a judgment calling for reimbursement of the costs of

appointed counsel is via an order of withdrawal from an inmate’s trust account. See Harrell v.

State, 286 S.W.3d 315, 317 (Tex. 2009) (citing TEX. GOV’T CODE ANN. § 501.014(e)).

“[P]roceedings under Government Code [S]ection 501.014(e) to recover court fees and costs

assessed against inmates are civil in nature and not part of the underlying criminal case.” Id. at

316.12 Withdrawal orders are, in effect, a garnishment. Id. at 319.13 This does not mean,

though, that withdrawal orders are subject to all the strictures of civil garnishment. Id. at 320

(“If [the Texas Department of Criminal Justice (TDCJ)] were required to conform strictly with

full-blown statutory garnishment requirements . . . [the] TDCJ would doubtless face expending

more money than it would ever collect in many cases, since withdrawal orders typically seek

modest sums. Faced with this cost-benefit tradeoff, [the] TDCJ would likely opt not to seek

recoupment at all, thus subverting the Legislature’s goal of efficient cost-collection.” (footnote

omitted) (citation omitted)). “Such post-judgment collection efforts are designed to reimburse

the State, not to punish the inmate . . . .” Id. at 316. Inmates have an opportunity to object to

such withdrawals. Id. (“[D]ue process is satisfied if the inmate receives notice and the

12 See also Johnson v. Tenth Jud. Dist. Ct. of Appeals at Waco, 280 S.W.3d 866, 868, 873–74 (Tex. Crim. App. 2008) (orig. proceeding) (dismissing for want of jurisdiction, in anticipation of Harrell, a district judge’s mandamus petition against a court of appeals over what process is due regarding a trial court’s Section 501.014 of the Texas Government Code order to withdraw funds from an inmate’s fund). 13 See also TEX. CIV. PRAC. & REM. CODE ANN. § 63.007 (“Garnishment of Funds Held in Inmate Trust Fund”). 13 opportunity to be heard after funds are withdrawn.”). Challenges to withdrawal orders are

properly the subject of a separate civil appeal. Id. at 321 (“[A]ppellate review should be by

appeal, as in analogous civil post-judgment enforcement actions.”).14

Further, payment of costs assessed in a criminal-conviction judgment may be imposed as

a condition of parole. See TEX. GOV’T CODE ANN. § 508.221 (Supp.) (“A parole panel may

impose as a condition of parole or mandatory supervision any condition that a court may impose

on a defendant placed on community supervision . . . .”). This specifically includes

reimbursement of attorney fees. See TEX. CODE CRIM. PROC. ANN. art. 42A.301(a)(10) (Supp.)

(listing reimbursement of attorney fees among the permissible conditions of community

supervision).15

Another way for the State to collect is via a judgment lien filed in county deed records by

“the attorney representing the [S]tate.” TEX. CODE CRIM. PROC. ANN. art. 42.22, §§ 2(b)(1), 5(1)

(Supp.). The lien must, among other things, identify “the criminal proceeding giving rise to the

lien, including the name of the court, the name of the case, and the court’s file number for the

case.” Id. § 6(3) (Supp.). The Legislature has provided statutory protections for defendants by,

among other things, requiring that the lien state that “the amount of restitution owed at any one

time may be less than the original balance and that the outstanding balance is reflected in the

14 See Anderson v. State, No. 06-24-00002-CR, 2024 WL 4096446, at *3 n.8 (Tex. App.—Texarkana Sept. 6, 2024, no pet.) (mem. op., not designated for publication) (“[B]oth the Texas Supreme Court and the Texas Court of Criminal Appeals have held that challenges to orders to withdraw funds entered pursuant to Section 501.014(e) are civil matters, and Anderson’s notice of appeal does not complain of the order to withdraw funds.”). 15 While costs based on a trial court’s judgment may be imposed as a condition of parole, the imposition of conditions of parole is within the purview of the executive branch of government, specifically, the Board of Pardons and Paroles. Ceballos v. State, 246 S.W.3d 369, 373 (Tex. App.—Austin 2008, pet. ref’d) (citing Bray v. State, 179 S.W.3d 725, 729 (Tex. App.—Fort Worth 2005, no pet.) (en banc)). 14 records of the clerk of the court hearing the criminal proceeding giving rise to the lien,” id. § 6(7)

(Supp.), and by requiring that “[t]he clerk of the court entering the judgment creating the

restitution lien shall maintain a record of the outstanding balance of restitution, fines, or costs

owed,” id. § 12(c) (Supp.).

C. Ways to Challenge Costs or Assert Financial Hardship

An appeal of the criminal-conviction judgment is not the only way to challenge costs

assessed in that judgment, nor is it the only way to obtain relief from such costs on grounds of

financial hardship.

“On the filing of a motion by a defendant not later than one year after the date of the final

disposition of a case in which costs were imposed, the court in which the case is pending or was

last pending shall correct any error in the costs.” TEX. CODE CRIM. PROC. ANN. art. 103.008(a)

(Supp.). Via this statute, a defendant may bring error(s) to the attention of the trial court. Id.

This is an avenue separate from direct appeal, and indeed, takes place following the conclusion

of any appeal. See Johnson v. State, 423 S.W.3d 385, 392 (Tex. Crim. App. 2014) (“[A]n

appellant has a separate statutory remedy to correct erroneous or unsupportable costs.”); London

v. State, 490 S.W.3d 503, 508 n.5 (Tex. Crim. App. 2016) (“The legislature appears to have

already provided a tailor-made vehicle for a challenge the assessment of court costs after the

final disposition of a case.”); Dulin, 620 S.W.3d at 133 n.29 (“[T]here is an available statutory

remedy to challenge the time payment fee, if it is ever imposed.”).

Even after the time period for an Article 103.008 of the Texas Code of Criminal

Procedure challenge has expired, a defendant is not without recourse: “If a defendant notifies the

15 court that the defendant has difficulty paying the fine and costs in compliance with the judgment,

the court shall hold a hearing to determine whether that portion of the judgment imposes an

undue hardship on the defendant.” TEX. CODE CRIM. PROC. ANN. art. 43.035(a) (Supp.). The

relief available under Article 43.035(a), including periodic payments and waiver, “is available

forever after sentencing.” Cruz, 698 S.W.3d at 269 (emphasis added).

Lastly,16 there is Article 26.05(g-1) of the Texas Code of Criminal Procedure. In Cates,

the Court of Criminal Appeals held that, when ordering the reimbursement of court-appointed

attorney fees, a court may not consider future financial circumstances. Cates, 402 S.W.3d at 252

(“Article 26.05(g) requires a present determination of financial resources and does not allow

speculation about possible future resources.”). In a concurring opinion, Presiding Judge Keller

observed, “there is a good policy reason for changing that requirement: If a defendant

subsequently acquires the financial resources to compensate the county for defense-counsel fees

associated with his conviction, he ought to be required to do so.” Id. (Keller, P.J., concurring).

Presiding Judge Keller suggested that “[t]he legislature could amend the statute.” Id. The

Legislature did. In 2017, via Senate Bill 527, the Legislature created Article 26.05(g-1). See Act

of May 28, 2017, 85th Leg., R.S., ch. 554, § 1, 2017 Tex. Gen. Laws 1530, 1530 (current version

at TEX. CODE CRIM. PROC. art. 26.05(g-1) (Supp.)). If a defendant is unable to make full

reimbursement of the attorney fees at the time of sentencing, Article 26.05(g-1) gives trial courts

jurisdiction to consider the defendant’s ability to make reimbursements for the entirety of their

sentences:

16 Not in the sense of the last statute bearing on attorney fee reimbursements and efforts to avoid them (there are others), but in the sense of the last statute we will discuss. 16 At any time during a defendant’s sentence of confinement or period of community supervision, the judge, after providing written notice to the defendant and an opportunity for the defendant to present information relevant to the defendant’s ability to pay, may order a defendant . . . to pay any unpaid portion of the [“the actual costs, including any expenses and costs, paid by the county for the legal services provided by an appointed attorney”] . . . if the judge determines that the defendant has the financial resources to pay the additional portion.

TEX. CODE CRIM. PROC. ANN. art. 26.05(g-1)(2) (quoting TEX. CODE CRIM. PROC. ANN. art.

26.05(g)(1)) (emphasis added).

All of this to say that the determination of indigency regarding the ability to reimburse

the costs of appointed counsel occurs in the criminal proceedings, but not only in the criminal

proceedings.17 Given the multiple avenues for addressing the matter, it bears noting that “[i]f a

party chooses to challenge the imposition of court costs through a direct appeal rather than

through an Article 103.008 hearing or a civil lawsuit, that party risks presenting an insufficient

record on appeal and leaving an appellate court unable to properly evaluate that claim.” London,

490 S.W.3d at 509.

III. Standard of Review: The Johnson “a Basis” Test

We review a challenge to an order calling for the reimbursement of attorney fees under

the Johnson “a basis” test: “[W]hen a specific amount of court costs is written in the judgment,

an appellate court errs when it deletes the specific amount if there is a basis for the cost.”

Johnson, 423 S.W.3d at 389. What, then, is “a basis”?

17 See TEX. CODE CRIM. PROC. ANN. arts. 26.05(g-1), 43.035(a), art. 103.008 (Supp.); Harrell, 286 S.W.3d at 320 (“The determination of indigency and the taxing of costs occurred as part of the two criminal cases against him.”); In re Guerrero, 710 S.W.3d 798, 802 (Tex. Crim. App. 2025) (orig. proceeding); London, 490 S.W.3d at 508; Cruz, 698 S.W.3d at 269. 17 A bill of costs, standing alone, can be “a basis.” See id. at 395–96. It was in Johnson.

Id.

In Johnson, the trial court’s judgment ordered that Johnson pay $234.00 in court costs.

Id. at 387. There was no bill of costs in the original appellate record, but a bill of costs was

provided, via a supplemental record, while the appeal was pending. Id. at 388, 393. Johnson

“argue[d] that Article 103.001 of the Texas Code of Criminal Procedure creates an evidentiary-

sufficiency requirement that a bill of costs must be present in the appellate record to support a

specific amount of court costs or the specific amount of costs must be stricken from the

judgment.” Id. at 394.18 The Court of Criminal Appeals rejected that argument. Id. (“we

disagree”). The Court of Criminal Appeals held that, via Article 103.001, the Legislature

“intended to prevent a defendant from paying unsubstantiated court costs.” Id. at 395 (emphasis

added). The Legislature accomplished this end by addressing “when a cost can be collected by

an agent of the State.” Id. (emphasis added). “Article 103.003 authorizes designated

government agents to collect only money that is payable.” Id. (citing TEX. CODE CRIM. PROC.

ANN. art. 103.003) (emphasis added). This protection regarding collection, however, does not

make a bill of costs an evidentiary prerequisite to a sustainable assessment of court costs. Id. at

394–95. The court considered in Johnson the separate statutory avenue for challenging costs as

“additional evidence” supporting this conclusion. Id. at 395 (citing TEX. CODE CRIM. PROC.

ANN. art. 103.008).

18 Teague does not cite Article 103.001, nor does he contend that he was not provided with a bill of costs containing the sum for the attorney fee reimbursement. 18 This separate procedural avenue would be superfluous if the presence of a bill of costs in the record were an evidentiary prerequisite to sustaining assessed court costs because appellate courts could always resolve court-costs claims before a case is finally disposed of, which is a situation that Article 103.008 does not contemplate.

Id.19

Thus, after reviewing the law, reviewing the judgment was straightforward: reviewing

the judgment for “a basis” supporting $234.00 in court costs came down to comparing the

judgment to the bill of costs, which also had $234.00 in court costs. Id. at 395–96. That is the

context for Johnson’s statement that, while a bill of costs is not required to perform the “a basis”

review, “it is the most expedient, and therefore, preferable method.” Id. at 396.

But it may not always be so expedient. Johnson left open the possibility that, once

challenged, a bill of costs may not be sufficient: “Absent a challenge to a specific cost or basis

for the assessment of that cost, a bill of costs is sufficient.” Id.

For further understanding of Johnson, we turn to the court’s discussion distinguishing “a

basis” review from evidentiary sufficiency review: “[E]videntiary-sufficiency analysis is derived

from due-process principles and requires that a trial record contain sufficient evidentiary proof of

a defendant’s guilt before a criminal conviction will be sustained.” Id. at 389 (emphasis added).

In contrast, “court costs are not part of the guilt or sentence of a criminal defendant, nor must

they be proven at trial; rather, they are ‘a nonpunitive recoupment of the costs of judicial

19 Dulin has since provided an example of a court cost claim that could only arise after final disposition of a case. Dulin, 620 S.W.3d at 130, 133. The statutory time payment fee is “premature” unless “more than [thirty] days after the issuance of the appellate mandate, the defendant has failed to completely pay any fine, court costs, or restitution that he owes.” Id. at 133. Say that a trial court complies with the timing as set forth in Dulin but miscalculates the amount of the fee. Appeal from the judgment of conviction would not be available to challenge such an error; the error arose after appeal from the judgment of conviction was over. 19 resources expended in connection with the trial of the case.’” Id. at 390 (quoting Armstrong, 340

S.W.3d at 767); see Cruz, 698 S.W.3d at 269. For purposes of whether to use “a basis” review,

Johnson placed reimbursement of court-appointed attorney fees under the umbrella of court

costs. Johnson, 423 S.W.3d at 390 (holding that a claim that “there was no basis in the record to

support the trial court’s determination that the appellant had financial resources and, as a result,

the ability to pay at least a portion of the cost of his defense” was a claim “challenging the

imposition of costs”).20 Hence, “a basis” review is less onerous than evidentiary-sufficiency

review: “[W]e review the assessment of court costs on appeal to determine if there is a basis for

the cost, not to determine if there was sufficient evidence offered at trial to prove each cost, and

traditional Jackson evidentiary-sufficiency principles do not apply.” Id. Again, “a basis” review

can be as straightforward as comparing the judgment to the bill of costs. See id. at 395–96. It

may not always be that expedient, but that benchmark cautions against making review much

more searing than that. See id.

We further understand Johnson from its discussion of what makes review of cost-

reimbursement orders cognizable on direct appeal of the criminal judgment. Cost-

reimbursement orders in final judgments are ripe for appellate review even without an assertion

that the State has attempted to collect on such costs. Id. at 391 (citing Harrell, 286 S.W.3d

315).21 A claim challenging costs included in a trial court’s judgment may be made for the first

20 Consequently, the statutory revision since Johnson does not alter our use of “a basis” review. See Johnson, 423 S.W.3d at 389. 21 There is no assertion here that the State has attempted to collect on the attorney fee reimbursement included in the trial court’s order. 20 time on appeal where the appellant did not have an opportunity to object “at trial” or “in open

court.” Id. at 390–91.22

22 Even preservation warrants scrutiny here. There is a reason for the discussion above regarding timestamps and multiple versions of the bill of costs on the day of sentencing. London held, “an appellant may generally challenge the imposition of even mandatory court costs for the first time on direct appeal when those costs are not imposed in open court and the judgment does not contain an itemization of the imposed court costs.” London, 490 S.W.3d at 507 (citing Johnson, 423 S.W.3d at 390–91) (emphasis added). The facts here satisfy one of those requirements but not both: the attorney fee reimbursement was not imposed in open court, but the judgment does contain an itemization of the reimbursement.

“Preservation is a systemic requirement. A first-tier appellate court may not reverse a judgment of conviction without first addressing any issue of error preservation.” Williams v. State, 707 S.W.3d 233, 247 (Tex. Crim. App. 2024) (footnote omitted) (citation omitted) (citing Darcy v. State, 488 S.W.3d 325, 327–38 (Tex. Crim. App. 2016)) (emphasis added); see In re E.R.C., 496 S.W.3d 270, 276 (Tex. App.—Texarkana 2016, pet. denied). “This is true regardless of whether the issue is raised by either of the parties.” Darcy, 488 S.W.3d at 328. “Ordinarily, a court of appeals should review preservation of error on its own motion, but if it does not do so expressly, this Court can and should do so when confronted with a preservation question.” Ford v. State, 305 S.W.3d 530, 532–33 (Tex. Crim. App. 2009) (footnote omitted) (citation omitted). Here, though, we are not reviewing a conviction. See Johnson, 423 S.W.3d at 389.

There is a specific body of law regarding objections to court costs. See id. at 390–91. In general:

The requirement that complaints be raised in the trial court (1) ensures that the trial court will have an opportunity to prevent or correct errors, thereby eliminating the need for a costly and time- consuming appeal and retrial; (2) guarantees that opposing counsel will have a fair opportunity to respond to complaints; and (3) promotes the orderly and effective presentation of the case to the trier of fact.

Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006). Regarding costs, “enforcing a procedural- default rule against a defendant who had no opportunity to raise an objection in the trial court does not further any of the policies delineated in Gillenwaters.” London, 490 S.W.3d at 507. “If this case were simply about whether Appellant was required to object to the imposition of court costs when the trial court pronounced sentence, it would be easily decided in Appellant’s favor.” Id.

The various bills of costs were provided on the day of sentencing, but there is no timestamp on the reporter’s record of the sentencing hearing. Consequently, the timing of when those documents were prepared as compared to the hearing is a matter of inference. Teague would have known at the start of the sentencing hearing that his finances had changed: he had neither a job nor income when he requested appointed counsel, but he had obtained a job and worked for approximately two years since. The presumption of indigence tilts these circumstances against any conclusion that Teague was put on notice, before the hearing, that the trial court would revisit the issue in open court. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p). On these circumstances, and taking the statements in London as a whole, we find that Teague may raise this issue without objection in the trial court. 21 IV. Analysis

The inquiry before the trial court was whether Teague was “able to pay” $1,678.75 when

the trial court ordered reimbursement in that amount. See TEX. CODE CRIM. PROC. ANN. art.

26.05(g); Cates, 402 S.W.3d at 251. The inquiry before us is whether there is “a basis” for the

trial court’s ruling. See Johnson, 423 S.W.3d at 389. For reasons set forth below, we find that

“a basis” of ability does not require proof of cash on hand in the dollar amount of the

reimbursement ordered.23 We affirm.24

When the trial court assessed Teague’s ability to repay $1,678.75, Teague had pled guilty

to possession of child pornography with intent to promote. That is relevant to Teague’s

credibility concerning his finances. See TEX. R. EVID. 609(a)(1) (“Evidence of a criminal

conviction offered to attack a witness’s character for truthfulness must be admitted if . . . the

crime was a felony or involved moral turpitude . . . .” (emphasis added)). Consequently, we

decline to apply the “a basis” test in a manner that would turn on whether Teague is willing to

admit that he has at his disposal $1,678.75, to the penny, that could be collected from him

without any particular inconvenience to him. The trial court was not required to find that Teague

was willing to pay. See Cates, 402 S.W.3d at 251 (“able to pay”). Nor was the trial court

required to count on Teague being forthcoming about his finances. See TEX. R. EVID. 609(a)(1).

23 A Tyler court of appeals’ decision has addressed the “a basis” standard of review, but in that case, the State conceded the point. See Schumann v. State, No. 12-23-00068-CR, 2023 WL 8659249, at *3 (Tex. App.—Tyler Dec. 14, 2023, no pet.) (mem. op., not designated for publication) (“[a]s the State acknowledges”). Here, by contrast, the State contends that “[t]he court’s assessment of attorney’s fees is supported by the record.” 24 The statutory discussion set forth herein is in furtherance of informing the application of Cates and Johnson, especially given statutory changes since those decisions. There is very much merit in the first-principles statutory review by the concurring opinion of Justice van Cleef herein. 22 Here, Article 26.04(p)’s “material change” requirement25 does not present a bar to the

trial court’s Article 26.05(g) “able to pay” finding,26 or to our “basis” review of that finding.27

When he first sought appointed counsel, Teague asserted that he had no job and no income. But

by the time of the sentencing hearing, he had a job and had been working for two years. That

constitutes “a basis” for a “material change” finding for purposes of Article 26.04(p). See TEX.

CODE CRIM. PROC. ANN. art. 26.04(p); Johnson, 423 S.W.3d at 389.28 Further, Teague asserted

indigence at the outset of the case, but then retained counsel appeared. That, too, gave the trial

court a basis to believe that Teague had been less-than-forthcoming with his disclosure of the

resources available to him. See Gray, 744 S.W.2d at 607; Eaglin, 710 S.W.3d at 850–51. That

too constitutes a basis for a material change finding. See Eaglin, 710 S.W.3d at 850–51.

We further decline to apply the “a basis” test in a manner that uses the trial court’s

decision to afford Teague appellate counsel against the trial court’s reimbursement decision.

Teague could be indigent for one but not the other. See McFatridge, 309 S.W.3d at 6; Dieken v.

State, 432 S.W.3d 444, 449 (Tex. App.—San Antonio 2014, no pet.).29 In addition, given the

statutory scheme discussed above, the trial court’s decision to grant Teague appointed counsel to

25 TEX. CODE CRIM. PROC. ANN. art. 26.04(p).

26 TEX. CODE CRIM. PROC. ANN. art. 26.05(g). 27 The Court of Criminal Appeals in Cates considered Article 26.04(p) when conducting the Article 26.05(g) analysis. Cates, 402 S.W.3d at 251–52. 28 We assume without deciding that the trial court’s appointment of trial counsel was based on indigency. As noted above, the trial court did not circle “indigent” when providing counsel to Teague. 29 “[T]he trial court’s order appointing appellate counsel, signed the same day as the judgment, is not inconsistent with the ordered attorney’s fees; the trial court could have found [Defendant] was able to pay $524.50 in trial attorney’s fees but unable to pay attorney’s fees to appeal.” Dieken, 432 S.W.3d at 449. 23 appeal his sentence may be just as much, if not more, about bringing Teague’s criminal case to

final conclusion. When making the appointment decision, the trial court faces different

considerations than when assessing reimbursement after appointment. Whitehead, 130 S.W.3d at

875–76. This is because of the greater importance of the criminal case as compared to

reimbursement matters. See id. It is better to avoid the “risk that truly indigent defendants

would be deprived of counsel,” given that “the disadvantages of erroneously ruling in the

defendant’s favor are relatively innocuous.” Id. (emphasis added).

Erroneously finding the defendant indigent would not affect underlying substantive determinations . . . . The question of indigence is subject to reconsideration if the defendant’s financial status changes, and, at least in the case of appointed counsel, the defendant can be required to reimburse the cost of legal services if it is later determined that he is able to do so.

Id. (footnote omitted) (citations omitted). Thus, the trial court could have reasonably determined

that the better course would be to appoint counsel so that the case may proceed, knowing that

reimbursement and financial hardship could be taken up separately, and later. See id.; TEX.

CODE CRIM. PROC. ANN. arts. 26.05(g-1), 43.035(a), 103.008.30 The time demands placed on

trial courts drive this point home. By statute, trial courts “shall appoint counsel as soon as

possible” after receipt of a request for counsel. TEX. CODE CRIM. PROC. ANN. art. 1.051(c)

(Supp.). The Legislature did not leave “as soon as possible” open-ended. The appointment must

be made by “the end of the third working day after” the application in counties “with a

population of less than 250,000[,]” or by “the end of the first working day after” the application

30 This dynamic could also have been at work in the trial court’s decision to appoint trial counsel. See TEX. CODE CRIM. PROC. ANN. arts. 26.05(g-1), 43.035(a), 103.008; Whitehead, 130 S.W.3d at 876. Teague asserts that the “material change” must have occurred in the relatively narrow window between the January 3, 2024, appointment of counsel and the October 7, 2024, judgment. Even if that is the controlling window, Teague’s income during that window would constitute a material change. 24 in counties with a greater population. TEX. CODE CRIM. PROC. ANN. art. 1.051(c)(1)–(2). This

leaves precious little time, if any, for the trial court to investigate claims of indigence when

making the appointment. But this short timeframe is in keeping with the rights at stake regarding

appointment. See Whitehead, 130 S.W.3d at 876.31

No reimbursement assessment could ever be upheld if the possibility of collection were

deemed to cross the Cates line of “speculation about possible future resources.” Cates, 402

S.W.3d at 252. Johnson recognized the difference between assessment of costs and collection of

costs. Johnson, 423 S.W.3d at 394. Since Teague is apparently unwilling to reimburse Gregg

County for the costs of providing him with appointed trial counsel, it may well be that the

various collection avenues above may be pursued. See TEX. GOV’T CODE ANN. § 501.014(e)

(Supp.), § 508.221; TEX. CODE CRIM. PROC. ANN. art. 42.22 (Supp.). Those collection efforts

may be tempered by Article 43.035(a). See TEX. CODE CRIM. PROC. ANN. art. 43.035(a). But

those are collection matters.

Likewise, the prospect of any reimbursement order being upheld would be dim, at best, if

a defendant’s capability of making a reimbursement required proof of cash on hand in the

amount of the reimbursement. Even if Teague directed his paycheck to matters he deemed more

important, while leaving the taxpayers of Gregg County to pay for his trial attorney, that does not

preclude the trial court from finding him capable of making the reimbursement. See Cardona v.

31 Article 1.051(c) has contained timing demands since 2001. See Act of May 24, 2001, R.S., 77th Leg., ch. 906, § 2, 2001 Tex. Gen. Laws 1800, 1800 (amended 2015) (current version at TEX. CODE CRIM. PROC. art. 1.051(c)(1)–(2)). The Legislature would have been aware of those demands, and the practical results of those demands, when making modifications to the statutory scheme. See, e.g., Act of May 28, 2017, 85th Leg., R.S., ch. 554, § 1, 2017 Tex. Gen. Laws 1530, 1530 (current version at TEX. CODE CRIM. PROC. art. 26.05(g-1)); TEX. CODE CRIM. PROC. ANN. art. 43.035 (Supp.). 25 Marshall, 635 S.W.2d 741, 743 (Tex. Crim. App. 1982) (orig. proceeding) (“May a person

transfer his assets while awaiting trial, after alleging indigency, so that he may make applications

for appointment of counsel, a free transcript, and a free statement of facts? We think not. Were

this Court to hold otherwise, the counties of this State would be overburdened with the task of

providing these services to truly non-indigent persons.”). There would seem to be little point to

the Legislature’s statutes regarding collection of assessed reimbursements if the only way

reimbursement could be assessed is if the defendant showed up to the sentencing hearing with

cash-on-hand in the full amount of the reimbursement. See TEX. GOV’T CODE ANN.

§§ 501.014(e), 508.221; TEX. CODE CRIM. PROC. ANN. arts. 42.22, 43.035(a).

In Johnson, a bill of costs sufficed to provide “a basis.” Johnson, 423 S.W.3d at 395–96.

The record before us contains a bill of costs. The record shows that Teague sought appointed

counsel based on an attestation of no job and no income, but thereafter he acquired both. The

exact amount of his income is not shown in this record, but it was sometimes enough to impact

his wife’s Social Security benefits. What is more, the appearance of retained counsel following

Teague’s attestation of indigency calls into doubt Teague’s forthrightness. Taken together, that

provides “a basis” for the trial court to conclude that as of October 7, 2024, Teague was able to

reimburse Gregg County in the amount of $1,678.75.

We affirm.

Jeff Rambin Justice

26 CONCURRING OPINION

I respectfully concur with the main opinion of Justice Rambin.

The parties to this appeal squarely task us to decide whether a defendant determined to be

indigent for purposes of appointment of counsel may be assessed and ordered to pay all or part of

his appointed attorney fees at a future date. Teague asserts that “[t]he trial court erred in

assessing these fees without evidence to show Appellant’s ability to pay had materially

changed.” My colleagues have written separately on this issue and fully reviewed relevant cases.

I begin and end my review with primary statutory sources and conclude that Teague’s indigent

status remains undisturbed, that he can nonetheless be ordered to post-pay (or “reimburse”) all or

part of his trial counsel’s fees, and that the record reveals no current, specific obligation to pay. I

join in affirming the trial court, but for the following reasons.

The Sixth Amendment to the United States Constitution guarantees the right to the

reasonably effective assistance of counsel in criminal prosecutions. U.S. CONST. amend. VI;

Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (citing McMann v. Richardson, 397

U.S. 759, 771 n.14 (1970)); see also TEX. CONST. art. I, § 10. If indigent, the defendant is

entitled to appointment of counsel. TEX. CODE CRIM. PROC. ANN. art. 1.051(a) (Supp.), art.

1.051(c). “‘[I]ndigent’ means a person who is not financially able to employ counsel.” Id. at (b).

A criminal defendant who avers that he is “without means to employ counsel of [his] own

choosing” may request appointment of counsel. TEX. CODE CRIM. PROC. ANN. art. 26.04(o); see

id. at 26.04(n) (Supp.).

27 That was done. There is no question that Teague requested and received attorney

representation at every step of his trial and appeal. His statutory and constitutional rights to

representation have been observed.

A defendant “is presumed to remain indigent for the remainder of the proceedings in the

case unless a material change in the defendant’s financial circumstances occurs.” TEX. CODE

CRIM PROC. ANN. art. 26.04(p). However, “[a] defendant can be found indigent for one purpose

without being found indigent for the other,” McFatridge, 309 S.W.3d at 6; so, a person found

indigent for one purpose may still be required to pay for other expenses or costs—“indigency”

does not necessarily preclude some payment. In my view, and in the absence of a contrary

finding by the trial court, Teague is still indigent for purposes of appointment of counsel, and, in

fact, the trial court appointed counsel for this appeal.32

Article 42.15(a) of the Texas Code of Criminal Procedure states, “When the defendant is

fined,” as Teague was, “the judgment shall be that the defendant pay the amount of the fine and

all costs to the state.” TEX. CODE CRIM. PROC. ANN. art. 42.15(a) (Supp.) (emphasis added).33

32 The parties have not provided Gregg County’s plan for appointment of counsel. Anecdotally, since it is in this Court’s district, I am aware that the plan contains definitions and financial thresholds for appointment of counsel, including the trial court’s general knowledge of the cost of retained counsel. Neither party argued them in this appeal. A “material change” to justify a change in indigency status is, therefore, an elusive concept, and an unnecessary one for us to consider since the trial court did not revoke Teague’s indigent status, there is no issue of appointment of counsel, and, to the contrary, Teague has appointed appellate counsel. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (emphasis added). Article 26.04, entitled “Procedures for Appointment of Counsel,” contains that test. TEX. CODE CRIM. PROC. ANN. art. 26.04(p). Article 26.04 does not address post-payment, or “reimbursement,” for appointed counsel’s services; but rather Article 26.05 does. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g). 33 The Texas Court of Criminal Appeals has stated that Article 42.15 applies in cases of “fine only” punishment, and all other cases fall within Article 42.16 of the Texas Code of Criminal Procedure. Johnson, 423 S.W.3d at 389; see TEX. CODE CRIM. PROC. ANN. art. 42.15 (Supp.). However, the Texas Court of Criminal Appeals has also analyzed costs imposed under Article 42.15 after a defendant was sentenced to incarceration and a fine. See Cruz, 698 S.W.3d 265. Numerous intermediate appellate courts have recently done the same. Whichever is correct, even 28 That was done. The amount of attorney fees appears in the judgment and the associated bill of

costs.

Teague pled guilty to a felony offense and received a prison sentence with a fine. Article

42.15(a-1)(1), entitled “Fines and Costs,” states,

“If the court determines that the defendant does not have sufficient resources or income to immediately pay all or part of the fine and costs, the court shall determine whether the fine and costs should be:

(1) . . . required to be paid at some later date or in a specified portion at designated intervals[.]”

TEX. CODE CRIM. PROC. ANN. art. 42.15(a-1)(1) (Supp.) (emphasis added).34 Immediate

payment was not demanded. The judgment provides,

Upon release from confinement, the Court ORDERS Defendant to proceed without unnecessary delay to the District Clerk’s office, or any other office designated by the Court or the Court’s designee, to pay or to make arrangements to pay any fines, court costs, reimbursement fees, and restitution due.

(Emphasis added). Teague was sentenced to serve eight years in confinement, and nothing in the

record indicates he has been released or otherwise avoided the imposition of his sentence.

Similarly, the record does not demonstrate that any order for withdrawal of funds or other levy

has taken place.35 The timing is uncertain since his release on community supervision is

Article 42.16 states that the trial court “shall adjudge the costs against the defendant, and order the collection thereof as in other cases.” TEX. CODE CRIM. PROC. ANN. art. 42.16. 34 The trial court did not expressly inquire about ability-to-pay on the record. However, Teague did not request an ability-to-pay inquiry nor object to the lack of one and therefore forfeited that complaint on appeal. See Cruz, 698 S.W.3d at 269, 271. Even so, he may still challenge the costs, but not the lack of an inquiry. See Johnson, 423 S.W.3d at 394. 35 The fact that the bill of costs contains an attorney fee does not alter this analysis. The bill of costs does not specify a timeframe for payment and does not contradict the judgment. Two sister courts recently addressed this question and reached the same conclusion. See Jones v. State, No. 14-24-00474-CR, 2025 WL 2446555, at *6 (Tex. App.— 29 discretionary, but what is certain is that the trial court did not direct that payment to occur

immediately. Teague has not challenged that order.

Having decided that payment will not be required now, the trial court also satisfied its

obligations under Article 26.05(g), which states,

If the judge determines that [an indigent] defendant has financial resources that enable the defendant to offset in part or in whole the costs of the legal services provided to the defendant in accordance with Article 1.051(c) or (d)[ entitled, “Right to Representation by Counsel”], including any expenses and costs, the judge shall order the defendant to pay during the pendency of the charges or, if convicted, as a reimbursement fee the amount that the judge finds the defendant is able to pay.

TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (emphasis added). That was also done. The

judgment contains the following finding:

We review a trial court’s directive requiring the payment of a fine and court costs for an

abuse of discretion. Sloan v. State, 676 S.W.3d 240, 241 (Tex. App.—Tyler 2023, no pet.); see

also Carradine v. State, No. 03-24-00012-CR, 2024 WL 3731846, *8 (Tex. App.—Austin,

Aug. 9, 2024, no pet.) (mem. op., not designated for publication). In addition, we review the

Houston [14th Dist.] Aug. 26, 2025, pet. ref’d) (not designated for publication) (concluding the bill of cost and judgment did not conflict); Richardson v. State, Nos. 02-24-00237-CR & 02-24-00238-CR, 2026 WL 253462, at *20 (Tex. App.—Fort Worth Jan. 30, 2026, no pet.) (mem. op., not designated for publication) (same conclusion).

Nonetheless, there is no time limit on a defendant’s ability to contest payment on grounds of undue hardship. Cruz, 698 S.W.3d at 269 (citing TEX. CODE CRIM. PROC. ANN. art. 43.035(a)); see also TEX. CODE CRIM. PROC. ANN. art. 26.05(g-1)(3) (Supp.) (defendant ordered to pay under Article 26.05(g-1) can demonstrate inability to pay).

30 assessment of costs to determine whether there is a basis for the cost; we do not apply an

evidentiary-sufficiency review. Johnson, 423 S.W.3d at 390; see Cardenas v. State, 423 S.W.3d

396, 398 (Tex. Crim. App. 2014). No party to this appeal challenges the amount of attorney

fees, and “a basis” for the attorney fee clearly appears in the attorney’s certificate and detailed

billing and the trial court’s order for payment. However, the trial court’s “finding” is the issue:

whether Teague “has financial resources that enable [him] to offset” all or part of his appointed

attorney’s fee. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g). I review the record for any

evidence to support the finding, because a trial court errs if it orders reimbursement of court-

appointed attorney fees without record evidence demonstrating a defendant’s ability to offset the

costs of legal services. See Mayer, 309 S.W.3d at 556. As detailed by Justice Rambin in his

main opinion, the record reveals that Teague obtained employment during the pendency of the

case. Also, the trial judge was able to consider Teague’s demeanor in ways we cannot. Finally,

and since the trial court’s determination at this stage had nothing to do with the Article 26.04

factors for determining the right to have appointed representation, I note that at the time of the

judgment, the trial court was aware of the length of sentence—eight years, or approximately

$209.00 per year or roughly $4.00 per week—which the trial court could reasonably believe was

a small enough amount, and a long enough time, to reimburse the attorney fee.

To further address the matter of assessment raised by Teague, the terms “assess,”

“impose,” “direct,” and a requirement for “payment” seem to be fluidly substituted—in case

opinions, statutes, and briefs—and there is good reason to not do so in this context. See TEX.

CODE CRIM. PROC. ANN. art. 103.003 (Supp.). The calculation, or “assessment,” of allowable

31 attorney fees is necessary so that appointed counsel is compensated by the government upon

conclusion of the representation, and is also necessary to later implement Article 26.05(g)(1)–

(2). See TEX. CODE CRIM. PROC. ANN. art. 26.05(g)(1)–(2). I recognize that it has been this

Court’s longstanding practice to strike attorney fee assessments in judgments and bills of costs

when no express finding to contradict “indigent” status appears in the record, and I have

authored opinions doing so myself. However, tasked by the parties and the record to examine

Article 26.05 in detail, and in order to fully address Teague’s claim, I must also consider the

effect of Article 26.05(g-1)(1)–(2), that resulted from the passage of Senate Bill 527 almost nine

years ago and is discussed above by Justice Rambin, in his main opinion. The judiciary “must

respect policy-laden statutes as written and give wide leeway to the innumerable trade-offs

reflected therein.” Miles v. Tex. Cent. R.R. & Infrastructure, Inc., 647 S.W.3d 613, 628–29 (Tex.

2022) (quoting Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 462 (Tex. 2009) (Willett,

J., concurring)). Article 26.05(g)(1) begins, “[t]his subsection applies only to a defendant who at

the time of sentencing to confinement . . . did not have the financial resources to pay the

maximum amount described by Subsection (g)(1) or (2).” TEX. CODE CRIM. PROC. ANN. art.

26.05(g-1) (emphasis added). The maximum amount is the actual, full amount paid to appointed

attorney services provided to an indigent defendant whose fees were calculated under Article

26.05(g)(1) or (2).

Article 26.05, subsections (g) and (g-1), stand for the proposition that a defendant who

received court-appointed counsel may be required to reimburse the county for attorney fees

32 under specified circumstances and at a future date.36 Article 26.05(g-1) provides that upon

notice and an opportunity to present information during the punishment term, a trial court may

order the defendant to pay the full subsection (g)(1) or (2) amount. None of that has occurred,

and it may never occur. Even so, Article 26.05(g-1) and its subsections make clear that the

government may, until the sentence is fully discharged, seek payment of all or part of the

attorney fees from a defendant who had court-appointed counsel. This conclusion is inconsistent

with the longstanding and widespread practice of striking attorney fees from judgments in direct

appeals.37

36 This conclusion conflicts with Cates, 402 S.W.3d at 251, with the exception of Judge Keller’s concurrence. It appears that Senate Bill 527 was a direct legislative response to part of the Cates holding. Also, Cates was decided years prior to the passage of Senate Bill 527. 37 I do not find Article 26.05(g-1) to be ambiguous. Even so, “to the extent that a statute’s history provides context for construing its text, we can consult it regardless of whether the statutory text is ambiguous.” Nicholson v. State, 682 S.W.3d 238, 250 n.11 (Tex. Crim. App. 2024) (Yeary, J., concurring) (citing Ex parte Moon, 667 S.W.3d 796, 803 (Tex. Crim. App. 2023)). My belief is confirmed by Senate Bill 527’s Senate Committee report which states,

S.B. 527 enables a court to order a defendant to pay all or part of the cost of legal services at any time during the defendant’s confinement, placement on community supervision, or period of deferred adjudication. S.B. 527 allows local governments to recover the cost of legal services provided if a defendant acquires sufficient financial resources subsequent to sentencing. (Original Author’s / Sponsor’s Statement of Intent).

LEGIS. REFERENCE LIBR. OF TEX., SENATE RESEARCH CENTER, Bill Analysis, Tex. S.B. 527, 85th Leg., R.S. (2017) https://lrl.texas.gov/legis/billsearch/BillDetails.cfm?legsession=85- 0&billTypeDetail=SB&billNumberDetail=527&billsuffixDetail= (follow Committee Report (Senate Research Center) hyperlink). The House also noted that “[Senate Bill] 527 seeks to lighten the burden of the taxpayer by revising provisions relating to compensation of certain appointed counsel.” Id. (follow Committee Report (TLC) hyperlink). Indeed, the problem Senate Bill 527 seeks to solve by amending Article 26.05 is that “the court’s authority to order such payment ends with the sentencing of the defendant.” Id. (follow Enrolled (Senate Research Center) hyperlink).

It is difficult to imagine how the Legislature could have been more clear in saying that the law should reduce the expense to taxpayers by enabling collection of appointed attorney fees during the entirety of the sentence.

33 In sum, I conclude that Teague was, and is still, a recipient of appointed counsel and that

the trial court did not determine that he was not indigent. Instead, the trial court assessed the

actual amount to pay Teague’s appointed trial counsel, noted that amount in its judgment,

evaluated whether Teague could pay the entire amount immediately and decided not, had an

evidentiary basis to determine that Teague was, at the time of sentencing, able to pay “all or

part” of his counsel’s fees, and ordered that the specifics of payment will be arranged at a future

date—as it shall do in each particular case. Collection has not commenced. If trouble arises in

the future when payment begins, there are avenues for relief from a future inability to pay.

It is unfortunate that my esteemed colleagues and I cannot reach a consensus on the law

in this case, but it is not surprising. We have each attempted to span the gap between

longstanding practice and Articles 42.15 and 42.16 on one hand, and Articles 26.04 and

26.05(g)–(g-1) on the other, just as the trial courts in our district do, against a backdrop of cases

that variously pre- and post-date a major statutory change. My conclusions rely heavily on the

Legislature’s addition of Article 26.05(g-1) and on the other legislation cited in this concurrence.

Accordingly, I find no error and join Justice Rambin’s main opinion in affirming the trial

court’s judgment, for the reasons stated in this concurrence.

Charles van Cleef Justice

34 DISSENTING OPINION

For the reasons below, I respectfully dissent from the main opinion.

Teague was arrested on June 7, 2022. The record reflects that Teague was initially

represented by attorney Brandon T. Winn through the arraignment process. On June 13, 2022,

Teague completed and presented to the trial court a request for appointment of counsel. In his

request, Teague indicated that he was without means to employ an attorney and requested that

the trial court appoint counsel for him. Teague stated that he did not have an income but that he

was seeking employment. Teague’s outstanding financial obligations included, among other

expenses, repayment of a $430.00 loan, a monthly car payment in the amount of $451.00, and

various other monthly expenses such as cable and utilities. Teague attested that his wife did not

have an income but indicated that he and his wife owned their home.

On January 3, 2024, the trial court reviewed and considered the information contained in

Teague’s request for a court-appointed attorney. Determining that he was unable to afford his

own counsel, the trial court appointed Todd Smith as counsel to represent Teague in the trial of

this matter.38 Smith represented Teague for the remainder of the trial court proceedings.

During an open plea hearing on August 29, Teague’s wife, Claudia, was called as a

witness by Teague’s appointed counsel. Teague’s counsel asked Claudia several questions

regarding her health, which, according to Claudia, was not good. Claudia testified that she

received monthly social security income in the amount of $370.00, but that if Teague “makes too

38 Because counsel may be appointed only when indigency is shown, it is presumed that the trial court determined that Teague was indigent before appointing counsel. See Schumann, 2023 WL 8659249, at *2 (citing TEX. CODE CRIM. PROC. ANN. art. 26.04(a); Gray, 744 S.W.2d at 607).

35 much” income in a month, her payment dropped to $100.00 a month. Claudia explained that

because they had a $450.00 car payment every month, her social security payment was not

enough to cover their additional expenses, such as their water and light bills. Claudia also said

that Teague handled the household finances, picked up her medications, took care of her on a

daily basis, and even dressed her. Furthermore, she testified that Teague had several medical

issues, including repeated seizures for which he was taking medication. In addition, Claudia

referred to Teague’s employment at a convenience store, and that the wages he received from

working there covered the extra health expenses, but she made no mention of the amount of

Teague’s income. During the plea hearing, the trial court did not make a finding as to Teague’s

financial resources or his ability to pay his attorney’s fees.

On October 7, 2024, the trial court held a sentencing hearing. Teague was sentenced to

eight years’ confinement in prison. When Teague’s trial counsel was discussing the appellate

bond during the hearing, he informed the trial court, “Judge, my client’s doesn’t [sic] have

means.” The trial court responded, “I understand.” The trial court then set Teague’s appellate

bond and appointed Teague counsel to represent him on appeal. Even so, the trial court made a

finding in its judgment providing, “The [c]ourt Finds that Defendant has financial resources that

enable Defendant to offset in part or in whole the cost of the legal services provided to

Defendant. Therefore, the [c]ourt ORDERS Defendant to pay $1,678.75 as court costs to the

County. Tex. Code Crim. Proc. art. 26.05(g).”

Teague contends that the trial court erred in assessing attorney fees without evidence to

show Teague’s ability to pay had materially changed. As pointed out in the main opinion, when

36 a trial court determines that a defendant is indigent, he “is presumed to remain indigent for the

remainder of the proceedings in the case unless a material change in the defendant’s financial

circumstances occurs.” TEX. CODE CRIM. PROC. ANN. art. 26.04(p).

Under Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court has the authority to order the reimbursement of a court-appointed attorney fees only if “the court determines that a defendant has financial resources that enable defendant to offset in part or in whole the costs of the legal services provided . . . including any expenses and costs.”

Junell v. State, 607 S.W.3d 410, 418 (Tex. App.—Texarkana 2020, pet. ref’d) (quoting TEX.

CODE CRIM. PROC. ANN. art. 26.05(g)). “‘[T]he 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’ of legal services provided.” Id. (alteration in original) (quoting

Armstrong, 340 S.W.3d at 765–66 (quoting Mayer, 309 S.W.3d at 556 (Tex. Crim. App. 2010))).

“[T]he record must reflect some factual basis to support the determination that [Teague] was

capable of paying all or some of his attorney’s fees at the time of the judgment.” Briceno v.

State, 675 S.W.3d 87, 98 (Tex. App.—Waco 2023, no pet.) (citing Barrera v. State, 291 S.W.3d

515, 518 (Tex. App.—Amarillo [Panel Op.] 2009, no pet.) (per curiam)).

The trial court made the finding in its judgment that Teague had the ability to pay

attorney fees in part or in whole. However, I believe such a finding is unsupported by any

factual basis in the record. Teague was appointed counsel in January of 2024. Claudia’s

testimony seven months later did not help support the finding that Teague had the financial

resources to pay. Although she did mention Teague having a job at a convenience store, the

record is not clear as to how long he had the job. Nor was there any mention of how many hours

37 Teague worked or his rate of pay. Other than Claudia’s testimony, the record does not reflect

any other information about Teague’s financial resources since the trial court initially found him

indigent.

As a result, based on this record, I do not believe there is a factual basis to support the

trial court’s finding. For that reason, I would find there was no basis for the assessment of

attorney fees at the time the judgment was entered and would sustain Teague’s sole point of

error. Furthermore, because it is the proper remedy, I would modify the trial court’s judgment

and the bill of costs by deleting the assessment of $1,678.75 in attorney fees. See Schumann,

2023 WL 8659249, at *6 (citing Cates, 402 S.W.3d at 252).

As modified, I would affirm the trial court’s judgment.

Scott E. Stevens Chief Justice

CONCURRING OPINION

I respectfully concur because I believe there was a more direct path to leaving the trial

court’s judgment in place: I do not believe we should have accepted Teague’s brief. I concur for

the following reasons.

38 First, the trial court did not order the taxpayers of Gregg County to pay for Teague’s

appellate attorney to contest the reimbursement of the cost of Teague’s trial counsel (that the

taxpayers also provided).

Second, the right to taxpayer-provided appellate counsel is not about a $1,678.75

reimbursement dispute. The Constitution does not compel the taxpayers to pay for Teague’s

appellate attorney to contest the reimbursement of the cost of trial counsel that the taxpayers also

provided. Problems with the Anders39 process, if any, should be addressed head-on rather than

rebuking beleaguered court clerks and trial courts for errors regarding court costs that might not

be errors after all. See Bradshaw, 707 S.W.3d at 418–19.

Before going further, I acknowledge there is an established basis for hearing the appeal as

presented. The practice of appointed appellate counsel pressing so-called “nonreversible error”

is common and may be growing. See Nelson v. State, 729 S.W.3d 374, 379 (Tex. App.—Dallas

2025, no pet.) (en banc). It may be vexing. See id. But it is an actual practice rooted in a

number of considerations. Id. In addition, there is much to be said for avoiding the additional

time and expense that would be involved in remanding this case for a brief on whether there is

“reversible error,” in other words, error impacting the liberty interest.

What follows is why I believe, on balance, the practice should change and should have

changed starting with this case. While remanding for a proper Anders brief in this case would

involve more expense, I believe that, in the long run, doing so would be the “stitch in time that

saves nine.”

39 See Anders v. California, 386 U.S. 738 (1967).

39 I. Who Ordered the Taxpayers to Pay for This?

The taxpayers of Gregg County are paying appellate counsel to fight against Gregg

County being reimbursed by Teague for the cost of Teague’s taxpayer-provided trial counsel.

I do not see where the trial court ordered this. The record does contain an order

appointing appellate counsel. The trial court’s certificate of appeal, though, states that this “is

not a plea agreement case, and the defendant has the right of appeal for punishment only.”

(Emphasis added). I have added italics to note that, “for punishment only” is handwritten on the

form. That is consistent with what was described to Teague by his trial counsel and what was

stated by the trial court at the plea hearing: “[I]n punishment [Teague would] have a right to

appeal.” As noted above, a reimbursement dispute “does not implicate ‘the integrity of judicial

sentencing proceedings’ or ‘the criminal adjudicatory process[.]’” Cruz, 698 S.W.3d at 269

(alteration in original). Nothing in the record indicates that the trial court appointed counsel for

purposes of a reimbursement appeal. Nothing in the record indicates that the trial court approved

such an appeal.

The trial court, though, is the only one that could have approved it. See TEX. CODE CRIM.

PROC. ANN. art. 1.051(d) (Supp.) (“An eligible indigent defendant is entitled to have the trial

court appoint an attorney to represent him in [a specified list of] appellate and postconviction

habeas corpus matters[.]” (emphasis added)). When the trial court appointed appellate counsel

for Teague, the trial court was under the impression that counsel would protect Teague’s rights

regarding punishment.

40 But Teague’s appellate counsel presented a brief about reimbursement, a non-punishment

matter. This is not to chastise Teague’s counsel.40 This is a systemic question; as noted above,

such briefs from appointed appellate counsel are commonly accepted by appellate courts.41 In

my estimation, however, the dynamics of appointed counsel result in a mismatch between the

frequency with which cost and reimbursement issues come up in private pay and court-appointed

briefs, especially in the context of Anders briefs or circumstances in which an Anders brief

should have been presented. No matter who is paying the appellate counsel, the defendant’s

chief concerns, presumably, would be overturning the conviction or reducing the prison

sentence. If there is no basis to accomplish either of those via appeal, and the discussion turns to

a potential appeal of costs and reimbursements, then it does matter who is paying. A defendant

paying an attorney with his own money would have to consider the cost-benefit tradeoff of such

an appeal. Tradeoffs are a fact of life, and the Legislature has spoken to them via its statutory

40 Appointment by the trial court brought with it a duty to zealously represent Teague. See Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014) (“competence, commitment and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf” (quoting TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.01 cmt. 6)). Here too, there are other considerations. See In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding) (“professional and ethical responsibilities as an officer of the court not to burden the judicial system with . . . burdensome time demands”); Nath v. Tex. Child.’s Hosp., 446 S.W.3d 355, 367 (Tex. 2014) (“An attorney has ethical obligations to both his client and to the judicial system as an officer of the court. Though zealous advocacy is expected of an attorney—indeed, it is a professional obligation—the attorney must not permit client desires to supersede the attorney’s obligation to maintain confidence in our judicial system.” (footnote omitted) (citation omitted)). As discussed infra, I believe that attorneys presenting briefs such as the one here are picking up on signals sent by appellate courts. I believe that the courts could increase confidence in the judicial system by re-emphasizing the review of liberty interest matters. 41 See Nelson, 729 S.W.3d at 385. Further, counsel might have been encouraged to focus on a cost assessment issue given our Court’s practice of sua sponte review of costs with considerable regularity, something I myself have done. See, e.g., Jennings v. State, No. 06-23-00155-CR, 2024 WL 1424330, at *1–2 (Tex. App.—Texarkana Apr. 3, 2024, no pet.) (mem. op., not designated for publication) (citing Mitchell v. State, 653 S.W.3d 295, 297 (Tex. App.— Texarkana 2022, no pet.). Our court is not alone in that practice. See Mitchell, 653 S.W.3d at 297. 41 scheme. See, e.g., Harrell, 286 S.W.3d at 320 (discussing the “cost-benefit tradeoff” balance

struck by Section 501.014(e)); TEX. CODE CRIM. PROC. ANN. art. 103.008.

If given my druthers, our Court would reject briefs that present only “nonreversible

error.”42 I would do so for the reasons above in light of the nature of Anders review.

II. Teague Received a Prison Sentence: Does this appeal protect his liberty interest?

By raising a $1,678.75 reimbursement issue, and only a $1,678.75 reimbursement issue,

Teague’s appellate counsel failed to address the reason Teague was given appellate counsel in

the first place. The purpose of taxpayer-provided appellate counsel is to ensure that the

defendant’s constitutional liberty interest is protected. See Ex parte Gonzales, 945 S.W.2d 830,

836 (Tex. Crim. App. 1997) (orig. proceeding) (quoting Argersinger v. Hamlin, 407 U.S. 25, 37–

38 (1972) (“[N]o person may be deprived of his liberty who has been denied the assistance of

counsel . . . .” (alteration in original)).

The Sixth Amendment right to appointed trial counsel was announced by the United

States Supreme Court in Powell43 regarding capital cases, was extended by Gideon44 to state

court felony cases, and was extended by Argersinger45 to misdemeanors where the liberty

interest is at stake. As these cases held, the Sixth Amendment right to appointed trial counsel

42 This would be without prejudice to a subsequent brief raising non-liberty interest matters in conjunction with an Anders brief. 43 See Powell v. Alabama, 287 U.S. 45, 68–69 (1932). 44 See Gideon v. Wainwright, 372 U.S. 335, 344–45 (1963). 45 See Argersinger, 407 U.S. at 32; see also TEX. CODE CRIM. PROC. ANN. art. 26.04 (Supp.). The Supreme Court later clarified that “the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.” Scott v. Illinois, 440 U.S. 367, 373–74 (1979) (emphasis added). 42 protects the constitutional liberty interest: “Both Powell and Gideon involved felonies. But their

rationale has relevance to any criminal trial, where an accused is deprived of his liberty.”

Argersinger, 407 U.S. at 32.

Douglas extended the Sixth Amendment right to appointed counsel to statutory direct

appeals.46 As the Supreme Court later observed in Penson, “The need for forceful advocacy

does not come to an abrupt halt as the legal proceeding moves from the trial to appellate stage.”47

As can be seen from Penson’s citations to Powell and Gideon, the right to appointed counsel on

appeal flows from the same constitutional wellspring as the right to appointed counsel at trial.48

That wellspring is the liberty interest: “In bringing an appeal as of right from his conviction, a

criminal defendant is attempting to demonstrate that the conviction, with its consequent drastic

loss of liberty, is unlawful.” Penson, 488 U.S. at 85 (quoting Evitts v. Lucey, 469 U.S. 387, 396

(1985) (emphasis added).

To sum it up: “This Court has held that the right to counsel guaranteed by the Sixth

Amendment applies at the first appearance before a judicial officer at which a defendant is told

of the formal accusation against him and restrictions are imposed on his liberty.” Rothgery v.

Gillespie Cnty., Tex., 554 U.S. 191, 194 (2008); see Gonzalez v. State, 616 S.W.3d 585, 594

(Tex. Crim. App. 2020). 46 Douglas v. People of State of Cal., 372 U.S. 353, 356–57 (1963). The court did not announce a constitutional right to appeal, but instead held that if states, by statute, create a right to appeal, then the constitutional right to appointed counsel attaches to that statutory right. Id. (“We are dealing only with the first appeal, granted as a matter of right to rich and poor alike [by California statute], from a criminal conviction. . . . [W]here the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.” (citations omitted)). 47 Penson v. Ohio, 488 U.S. 75, 85 (1988). 48 See id. at 84 (citing Gideon, 372 U.S. at 344; Powell, 287 U.S. at 53). 43 Anders is the familiar process for protecting the liberty interest when an appointed

appellate counsel determines that any appeal that could be brought regarding the liberty interest

would be frivolous. See Kelly, 436 S.W.3d at 318.

Teague’s appeal, as presented by his taxpayer-provided appellate counsel, has nothing to

do with Teague’s liberty interest. I would remand for appointment of counsel to present an

Anders brief. In this respect, I agree with the Tenth Court of Appeal’s Allison decision:

[C]ounsel’s decision to raise non-reversible error outside the context of Anders in this case deprives appellant of his right to be heard by the filing of a pro se response raising “any points that he chooses,” and it deprives this Court the opportunity to conduct an independent review of the record.

Allison v. State, 609 S.W.3d 624, 628 (Tex. App.—Waco 2020, order) (per curiam), disp. on

merits, 654 S.W.3d 794, 796 (Tex. App.—Waco 2022, no pet.) (citing Anders, 386 U.S. at

744).49

What would a brief addressing Teague’s liberty interest have looked like, though? Our

sister court in Dallas has held that an Anders brief requires “an exceptionally detailed account,

providing this court a roadmap explaining why, at each turn, there are only frivolous issues to be

raised on appeal.” Limauro v. State, 675 S.W.3d 368, 372 (Tex. App.—Dallas 2023, no pet.).

The court praised a brief that “walk[ed] [the court] through each section of the trial.” Id. The

court described Anders briefs as “minutely detailing why the client has no shot on appeal.” Id.

The court in Limauro stated, “Properly done, an Anders brief is an exhaustive endeavor.” Id.

Our Court has not held that Anders is that exacting. In my view, Limauro overstates what an

49 I am not so sure, though, about Allison’s encouragement of appointed counsel to address issues that do not impact the liberty interest. See Allison, 609 S.W.3d at 628. I question whether Allison gave proper weight to the entire statutory scheme and the multiple avenues for addressing cost and reimbursement issues. 44 Anders brief must contain. See Kelly, 436 S.W.3d at 318; In re Schulman, 252 S.W.3d at 407;

High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978).

I believe that we can address the problem by restoring Anders to its roots, and by not

making more of Anders than what it is. See In re Schulman, 252 S.W.3d at 406 n.9 (“In Texas,

an Anders brief need not specifically advance ‘arguable’ points of error if counsel finds none, but

it must provide record references to the facts and procedural history and set out pertinent legal

authorities.”). Here, for example, an Anders brief could have been no more complicated than the

brief challenging the reimbursement. The brief would have needed citations to the record, much

like in section I of the main opinion above (the reimbursement-specific citations could be

omitted, of course). As for potentially arguable issues, the evidence of Teague’s guilt was

compelling. He pled guilty, and in conjunction therewith, waived his right to appeal matters

pertaining to guilt. He was properly admonished regarding the consequences of a guilty plea.

There was no question of whether prior convictions could properly be used to enhance his

punishment; there were none. Teague’s sentence was within the statutory range, and indeed, less

than the maximum. Thus, there was no basis to appeal for a lesser sentence. See State v.

Simpson, 488 S.W.3d 318, 322 (Tex. Crim. App. 2016); Ex parte Chavez, 213 S.W.3d 320, 323

(Tex. Crim. App. 2006) (orig. proceeding). Likewise, the record available on direct appeal

shows no basis to second-guess trial counsel. See Tanner v. State, 707 S.W.3d 371, 376 (Tex.

Crim. App. 2024) (citing Strickland v. Washington, 466 U.S. 668 (1984)); Mata v. State, 226

S.W.3d 425, 431 (Tex. Crim. App. 2007). Presenting a proper Anders brief in Teague’s case

would not have required an exhaustive endeavor.

45 III. Conclusion

Time and expense spent on one thing takes away from something else.

The Supreme Court has recognized this in the context of Anders: “[C]ritics have claimed

that, in setting out the Anders procedure, we were oblivious to the problem of scarce resources

(with regard to both counsel and courts) and, as a result, crafted a rule that diverts attention from

meritorious appeals of indigents and ensures poor representation for all indigents.” Smith v.

Robbins, 528 U.S. 259, 282 n.13 (2000). The Supreme Court acknowledged that “judicial fiat

cannot cure scarcity; it merely disguises the symptoms of the disease.” Id. (quoting A.C.

Pritchard, Auctioning Justice: Legal and Market Mechanisms for Allocating Criminal Appellate

Counsel, 34 AM. CRIM. L. REV. 1161, 1162 (1997)). The Supreme Court held that “this

problem” is for the states to address. Id.

In sum, I propose focusing on the liberty interest in cases involving appointed counsel.50

For every defendant for whom we spend time examining attorney fee reimbursements or other

non-liberty matters, there is another defendant hoping to overturn his conviction, or to reduce his

sentence. In my view, the liberty interest is of greater importance. See Douglas, 372 U.S. at 357

(“the one and only appeal”).

50 We have previously held that “appellate courts are authorized to reform judgments and affirm as modified in Anders cases involving non-reversible error.” Mitchell, 653 S.W.3d at 297. That remains true as a matter of what we may do. As a matter of what we must or should do, I will not routinely exercise Mitchell authority to raise reimbursement matters sua sponte. 46 Respectfully then, I concur.

Date Submitted: March 18, 2025 Date Decided: April 20, 2026

Do Not Publish