PD-0856-19 & PD-0857-19 01/15/2020
1. “Should an improper and prematurely assessed nonobligatory ‘Time Payment Fee’ that penalizes the failure to timely pay a court-cost, fee, or restitution be struck?”
2. “In striking down court-costs and fees, does the judiciary violate separation of powers by infringing on the Legislature’s power to enact costs, fees, and the state’s budget and the Governor’s budget power?”
3. “Is the “Time Payment Fee” proper because it imposes a time-frame for court-cost and fee payment and disincentivizes late payment and the failure to pay?”
The trial court assessed a $25 time-payment fee in Dulin’s bill of costs after he was convicted and sentenced for sex offenses involving a child. Under Local Government Code § 133.103, the time-payment fee must be assessed “when any part of a fine, court costs, or restitution” has not been paid 31 days after the judgment was entered. A large percent of the fee is then forwarded to the Comptroller for deposit in the general fund, while 10% remains with the municipality or county in furtherance of administering justice. Tex. Local Gov’t Code § 133.103(b), (c).
On appeal, Dulin challenged 90% of the fee, arguing that it violates separation of powers because it is deposited into the general fund without limitation. The court of appeals, relying on Salinas v. State, 523 S.W.3d 103 (Tex. Crim. App. 2017), held that portion of the fee unconstitutional and struck it from the judgment. Salinas held that costs and fees must serve a criminal justice purpose and, when they are directed to the general fund, no such purpose is served and courts become tax gatherers in violation of separation of powers.
The State first argues that the fee should be struck because it was assessed when the judgment was entered and was therefore premature. That there may still be an outstanding balance cannot retroactively cure it. Courts have the authority to waive costs and fees based on a person’s inability to pay. See Tex. Code Crim. Proc. arts. 43.091, 42.15(a-1)(3).
Alternatively, the State contends that the striking down of costs and fees infringes on the Legislature’s authority to establish uniform costs and fees and enact the budget, and interferes with the Governor’s exclusive role as the chief budget officer and his authority to alter the budget. Salinas and other like decisions violate separation of powers.
As a final alternative, the State claims the fee serves a criminal justice purpose by establishing a deadline for payment and disincentivizing untimely payment and failure to pay. This is consistent with private-industry billing. And without a deadline or penalty, the interests served by restitution and fines may go unrealized.