Texas Stamp


PD-0628-23 12/20/2023

1.    “The 87th Legislature passed Senate Bill 1373 which amended Code of Criminal Procedure, Article 42.15(a-1). The amendment requires courts to conduct ability-to-pay inquiries ‘on the record.’ The amendment became effective on September 1, 2021. The bill said the statutory changes apply to fines, fees, and costs ‘imposed before, on, or after’ the bill’s effective date. Should the new on-the-record requirement apply retroactively to Mr. Cruz’s trial which was conducted twenty days before September 1, 2021?”

2.    “This question assumes the new requirement that ability-to-pay inquiries be conducted on the record is retroactive. The Texas Constitution’s retroactive laws provision prohibits only statutes which disturb vested, substantive rights. Laws altering procedure do not generally fall within the prohibition. ‘Procedure’ refers to changes in the process by which criminal cases are adjudicated as opposed to changes in the substantive law of crimes. Is the new law’s retroactivity procedural and therefore constitutional?”

3.    “Mr. Cruz did not object to the absence of an on-the-record ability-to-pay inquiry. Nor did he affirmatively waive his right to such an inquiry. Whether he can complain on appeal about the absence of the inquiry depends on the categorization of his right under Marin. If his right is either a waivable right or an absolute requirement, he may complain on appeal. Is his right either a waivable right or an absolute requirement under Marin?”

In addition to a sentence of imprisonment, Cruz was fined $8,000.  At the time of Cruz’s trial in mid-2021, the ability-to-pay statute―Tex. Code Crim. Proc. art. 42.15(a-1)―required the trial court to consider whether Cruz had sufficient resources or income to pay all or part of the fine and costs.  After, in September 2021, the statute was amended to require ability-to-pay inquiries to be conducted on the record.  Act of May 8, 2021, 87th Leg., R.S., ch. 106, § 5, eff. Sept. 1, 2021.  The amendment applied “to a fine, fee, or cost imposed before, on, or after the effective date.”  Id.

On appeal before the Fourteenth Court of Appeals, Cruz complained that the trial court failed to conduct an on-the-record ability-to-pay inquiry as required by the September 2021 amendment; he requested a remand.  In deciding the issue, two members of the court of appeals panel addressed three issues: (1) whether Cruz must overcome the presumption of regularity applied to the ability-to-pay recital in the judgment, (2) whether Cruz was required to object, and (3) whether the September 2021 version applies retroactively to Cruz’s trial.

The panel’s majority stated that before September 2021, an appellant had the burden to prove that the ability-to-pay inquiry was not conducted off the record.  Under the new version, however, a recital of completed inquiry in the judgment alone is insufficient; the inquiry must be held on the record.  Next, the panel majority observed that Cruz was not required to preserve his complaint because the statute creates a sua sponte duty on the trial court.  Last, the panel majority noted that the “on the record” procedural requirement applies retroactively.  The Texas Constitution’s retroactive law prohibition was not implicated because no vested or substantive rights were disturbed.  

Despite all this, the panel rejected Cruz’s challenge because it was bound to follow a prior panel’s holding that the “on the record” requirement is not retroactive. Hernandez-Faced v. State, 661 S.W.3d 630, 638 (Tex. App.―Houston [14th Dist.] 2023, pet. ref’d).

Agreeing with the panel majority in this case, Cruz now asks the Court of Criminal Appeals to resolve the split among judges on the Fourteenth Court of Appeals.

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