More than 50 years after Gideon v. Wainwright, Texas courts continue to subvert indigent defendants’ right to appointed counsel by imposing attorney’s fees post-conviction. While the practice of ordering indigent defendants to reimburse attorney’s fees is not unique to Texas1, it is problematic for a host of reasons, blatantly violating both the constitutional right of access to counsel and current Texas law.
In guaranteeing the right to appointed counsel for indigent clients, Gideon necessarily created a cost to states by obligating them to provide counsel to those who cannot afford it. States in turn have sought to circumvent this obligation by allowing judges to order defendants to pay court costs, including attorney’s fees, even after defendants are declared indigent.2 Current practices include conditioning the offer of a plea deal on the defendant’s acceptance of court costs or making fee payments a component of sentencing without a finding of financial ability to pay, practices which are antithetical to the basic principles of appointed counsel and equal protection.
The Supreme Court’s Ambivalence Towards Reimbursement Statutes
Gideon v. Wainwright3 famously guaranteed indigent defendants the right to appointed counsel in state felony cases, a right that was later extended to misdemeanor cases in Argersinger v. Hamlin.4 While these decisions marked a clear and significant step towards a fairer justice system, the indigent defendant’s right to have “counsel . . . provided for him”5 meant states had to do the providing, and a conflict arose over state statutes that allowed judges to order the reimbursement of attorney’s fees. In James v. Strange, the Supreme Court struck down a Kansas statute allowing the state to recoup attorney’s fees from indigent clients on the grounds that the statute provided for no exemptions from payment, not even exemptions recognized under Kansas’ Code of Civil Procedure.6 However, shortly after its ruling in James, the Court distinguished and upheld an Oregon recoupment statute allowing the ordering of convicted persons to repay “expenses [including the cost of legal defense] . . . as a condition of probation.”7 The Court reasoned that because the Oregon statute was “carefully designed to insure that only those who actually became capable of repaying the State will ever be obliged to do so,” it did not violate an indigent defendant’s right to counsel.8
Neither case establishes broad rules for or against reimbursement statutes in general, keeping to narrow rulings that address the exact language of the particular statute in question. What does emerge from these decisions is the principle that reimbursement orders should only be made when defendants are actually “capable of repaying,” although the Court gives no guidance on how this capability should be determined. These cases reveal an ongoing tension between every citizen’s right to counsel and the financial burden of requiring states to provide counsel, and many states have dealt with this tension by forcing indigent defendants to be a part of shouldering this burden.
Texas Law Requires Evidence of a Defendant’s Ability to Pay
Attorney’s Fees for Indigent Defendants Represent a Significant Amount
Article 26.05(g) provides that a judge may order the defendant to “offset in part or in whole the costs of the legal services provided to the defendant.” Attorney’s fees include:
(1) Time spent in court, trial, and in any proceeding involving sworn oral testimony
(2) “[R]easonable and necessary” time out of court spent on the case
(3) Preparation for appeals
(4) Preparation for motion for rehearing
Tex. Code Crim. Proc. Art. 26.05(a)
Attorney’s fees also include “reasonable and necessary overhead costs.”9 As an example of what indigent defendants may face in an order to reimburse attorney’s fees, appointed attorneys in Harris County district courts can claim expenses ranging from $125–$350 per court day, and $40–$85 per working hour out of court.10 In Erath County, appointed counsel is compensated a flat fee of $500 in cases resulting in a guilty plea, and $300 for an Order of Dismissal.11 Under Art. 26.05(a), a defendant who has declared indigency can still be held liable for any of those costs, easily facing hundreds of dollars in attorney’s fees alone.
Judges Must Have Evidence of Defendant’s Ability to Reimburse Fees
Importantly, any 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. Art. 26.04(p) (emphasis supplied). This presumption of indigency cannot simply be overridden by a judge, and the Court of Criminal Appeals has ruled that any order to reimburse attorney’s fees must be supported by “evidence to demonstrate appellant’s financial resources to offset the costs of the legal services.”12 Earlier this month, the Texas Legislature passed an amendment to Art. 26.05(g), requiring judges to “provid[e] written notice to the defendant and an opportunity for the defendant to present information relevant to the defendant’s ability to pay” before ordering reimbursement, although the order may come “at any time during a defendant’s sentence.”13 The written-notice requirement seems to contradict the presumption of continued indigency in Art. 26.04(p) by flipping the evidential burden onto defendants, although it could also be interpreted as ensuring defendants an opportunity to rebut any evidence used by the judge to justify a reimbursement order.
It is worth noting that although judges have the authority to order defendants to pay court costs at their discretion, defendants are not informed of the possibility that they may have to pay when they request an attorney. The exact language of a request for counsel reads as follows:
On this _____________ day of ____________________, 20__, I have been advised by the (name of the court) Court of my right to representation by counsel in connection with the charge pending against me. 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. Art. 26.04(o)
Defendants are unlikely to expect to bear the cost of legal counsel after admitting to being “without means to employ counsel,” yet judges currently order them to do just that, with or without a finding of ability to pay.
Current Practice Violates Both Texas Statutory and Case Law
Conditioning Sentencing on Reimbursement Turns Court Costs into Punishment
When judges impose attorney’s fees only when defendants want to take a plea, they are using court costs as a component of sentencing, in direct contradiction to the Texas Court of Criminal Appeals ruling that “court costs [are] not intended by the Legislature to be punitive.”14 Without a proper finding of whether or not a defendant can actually pay after indigency has already been established, these costs function as fines, triggered by a defendant’s guilty plea. Conditioning the availability of a plea on the defendant’s agreement to pay attorney’s fees, even when previously declared indigent, turns attorney’s fees into a form of punishment by relating them to the offense and sentence.
By conditioning the grant of a plea on reimbursement, courts can keep indigent defendants incarcerated for far longer than those with the ability to pay court costs. The legal issues are especially illustrated when the plea involves probation, since indigent defendants who have an opportunity to return to the free world are kept from doing so due to an inability to pay costs that are supposed to be non-punitive. This type of situation is alarmingly similar to that of the Harris County bail bond issue currently working its way through federal courts, where poor defendants are incarcerated at a far greater rate than wealthier defendants. Both situations present equal protection issues, since wealthy defendants are given options of moving through the criminal justice system in a way that poor defendants cannot—where wealthy defendants can take a plea or pay their bond, indigent defendants must stay incarcerated as their case moves forward. Probation becomes an option only for those wealthy enough to afford it.
Indigent defendants are faced with the choice of returning to jail or giving up their indigent status, both decisions that can have severe consequences down the line. Those who agree to reimburse court costs as a part of their probation and end up unable to pay risk being issued a capias warrant, which can lead to an arrest and incarceration. Those with limited finances who do try to pay these fees join the many families who struggle to afford basic necessities like food and shelter.15
Imposing Fees Without Evidence Violates Indigent Defendant’s Due Process Rights
In addition to the substantive problems with linking pleas and court costs, current practice poses grave issues to an indigent defendant’s right to due process. Although “the defendant’s financial resources and ability to pay are explicit critical elements in the trial court’s determination of the propriety of ordering reimbursement of costs and fees,”16 current practice does not include any sort of hearing on a defendant’s financial status when ordered to pay attorney’s fees, despite the fact that indigent defendants are legally presumed to be indigent for the duration of the case absent evidence showing otherwise.17 Texas law requires judges to make a “determination” that defendants can actually afford to pay when they order the reimbursement of court costs, but the lack of a formalized process or guidelines leaves defendants largely at the mercy of a judge’s personal decision-making. In addition, the Court of Criminal Appeals has ruled that because court costs are not considered punitive, they do not need to be “included in the oral pronouncement of sentence . . . as a precondition to their inclusion in the trial court’s written judgment,”18 meaning defendants may not realize a reimbursement order has been issued until after their appearance before the judge. They thus experience due process issues on both ends of a case proceeding: On the front end, defendants who request appointed counsel are not notified of the possibility of eventually having to pay for counsel, and on the back end they risk a payment order at the judge’s discretion without any formal inquiry into their financial resources.
The discretionary imposition of attorney’s fees without any formal guidelines creates a danger that defendants who are aware of this possibility may decline to request counsel, especially those who can least afford to pay. It is unknown to what degree defendants have actually been deterred from requesting counsel when faced with the possibility of a reimbursement order, although reports of such incidents do exist.19 However, the number of fees-related appeals that have been raised and denied, solely on procedural grounds, suggests that the lack of available data is more likely an indication that defendants do not realize they are being ordered to pay attorney’s fees during judgment. Given the popular (and logical) belief that an indigent defendant’s right to appointed counsel means defendants do not have to pay for said counsel, it is possible defendants do not understand that attorney’s fees are being ordered at the time of judgment.20 If defendants were more aware of the danger, the threat of reimbursement orders, especially when imposed arbitrarily, could be found to impermissibly impede indigent defendants’ right to counsel.21
Finally, from a simply logical perspective, the very definition of indigent defense services seems to preclude the expectation that clients who receive these services will be able to reimburse the costs. States may very well face budget concerns in regards to funding the criminal justice system, but to expect a population that cannot afford counsel in the first place to be the ones footing the bill is patently illogical. Texas’ current practice does nothing more than create additional ways in which poor defendants risk punishment and incarceration in ways that wealthy defendants do not. The Supreme Court notes in James that under a Kansas statute allowing reimbursement, “only $17,000 has been recovered under the statute in its almost two years of operation . . . [T]his amount is negligible compared to the total expended.”22 Unsurprisingly, poor defendants do not have large reserves of money available to contribute to the running of the criminal justice system, however much states may try to place the burden on them.
Reimbursement Orders as Part of Community Supervision Must Be Challenged Immediately
Perhaps as an indication of defendants’ lack of notice regarding Texas’ reimbursement rules, Texas’ appeals courts have seen a number of sufficiency challenges to the imposition of attorney’s fees post-judgment. In addition to making clear that reimbursement orders must be supported by evidence of a defendant’s ability to pay, Mayer held that defendants retained the right to challenge the legal sufficiency of an order even if they did not raise the complaint during trial.23 However, the Court of Criminal Appeals then distinguished Mayer from a number of cases involving deferred adjudication, holding that defendants did procedurally default a claim of sufficiency if they did not bring it up “in a direct appeal from the order originally imposing community supervision”24 (emphasis supplied). This claim can be procedurally defaulted even when the amount of attorney’s fees is unknown at the time of judgment,25 although several courts of appeals have made an effort to factually distinguish similar cases in finding for the defendant.26 In any case, current practitioners should be prepared to look for and raise a legal sufficiency issue in regards to attorney’s fees (and court costs in general) at the time of judgment.
Despite Texas’ statutory and case law, judges continue to place court costs on those already recognized as being unable to afford a proper defense. The fact that reimbursable court costs can include attorney’s fees without any finding of an ability to pay them is a blatant violation of the constitutional right to appointed counsel and Texas law, and we strongly encourage defense attorneys to be ready to identify and challenge the issue should it arise. A sample motion follows this article and can be used as a template. Though each individual cost may seem like a small amount, to an indigent defendant each fee can mean a day’s worth of meals, access to transportation, or even the ability to pay rent. And more often than not, those fees add up to an amount far greater than anything the individual could afford. Current practice undermines an indigent defendant’s standing in the legal system, and should be challenged whenever they arise.
1. Joseph Shapiro, As Court Fees Rise, The Poor Are Paying The Price, NPR (May 19, 2014), https://www.npr.org/2014/05/19/312158516/increasing-court-fees-punish-the-poor (finding that “[i]n at least 43 states and the District of Columbia, defendants can be billed for a public defender”).
3. Gideon v. Wainwright, 372 U.S. 335 (1963).
4. Argersinger v. Hamlin, 407 U.S. 25 (1972).
5. Gideon, supra note 2, at 344.
6. James v. Strange, 407 U.S. 128 (1972).
7. Fuller v. Oregon, 417 U.S. 40, 43.
8. Id. at 53.
9. Tex. Code Crim. Proc. Art. 26.05(c).
10. Time spent on appeals work ranges from $75-$100 per hour. See Current Attorney Fee Schedules, http://tidc.tamu.edu/public.net/Reports/FeeDocuments.aspx#H.
12. Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010) (overturning a court reimbursement order when the trial court had made no finding as to the indigent defendant’s ability to pay appointed attorney fees).
13. Tex. Crim. Pro. Art. 26.05 (2015), amended by Tex. Crim. Pro. Art. 26.05(g-1) (approved June 9, 2017; effective Sept. 1, 2017).
14. Weir v. State, 278 S.W.3d 364 (Tex. Crim. App. 2009) (finding that although court costs were only assessed against convicted defendants, they were treated differently than fines and were not intended by the Legislature to be punitive).
15. See, e.g., Saneta deVuono-Powell, Chris Schweidler, Alicia Walters, and Azadeh Zohrabi. “Who Pays? The True Cost of Incarceration on Families,” 14 (2015). http://ellabakercenter.org/sites/default/files/downloads/who-pays.pdf.
16. Mayer, supra note 11, at 556.
17. See Tex. Code Crim. Proc. Art. 26.04(p).
18. Weir, supra note 13, at 367.
19. Shapiro, supra note 1.
20. See Weir, supra note 13, at 367 (2009), where the Court held that “court costs are not punitive and, therefore, did not have to be included in the oral pronouncement of sentence.”
21. See James, supra note 5, at 134 (1972), where the Court acknowledged, but declined to reach, the question of whether or not “the statutory obligations for repayment impermissibly deter the exercise of [the] right [to counsel].”
22. Id. at 133.
23. Mayer, supra note 11, at 556.
24. Wiley v. State, 410 S.W.3d 313, 318 (Tex. Crim. App. 2013) (finding the record was insufficient to support an order to pay attorney fees, but that defendant had procedurally defaulted the claim).
25. Riles v. State, 452 S.W.3d 333 (Tex. Crim. App. 2015) (affirming that defendant procedurally defaulted sufficiency claim when she agreed to pay “all court costs including Court Appointed Attorney Fee,” even when amount was not determined until 16 days after judgment of deferred adjudication).
26. See Lawrence v. State, 420 S.W.3d 329 (Tex. App. 2014) (finding that defendant did not waive right when original judgment read “APPOINTED ATTORNEY FEES TO BE DETERMINED”); see also Molnolskey v. State, No. 14-14-00585-CR, 2015 WL 4774732 (Tex. App. Aug. 13, 2015) (finding no defaulted claim where alleged attorney’s fees did not match initial bill of costs).