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Delfino Ortega Jr. v. the State of Texas

Court: Court of Appeals of Texas
Date filed: 2021-05-12
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             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                      NO. PD-1193-19

                          DELFINO ORTEGA, JR., Appellant

                                              V.

                                 THE STATE OF TEXAS


            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE ELEVENTH COURT OF APPEALS
                            ERATH COUNTY


       Per curiam. YEARY, J., filed a dissenting opinion in which SLAUGHTER, J., joined.

                                       OPINION


       Appellant was convicted of driving while intoxicated and sentenced to twenty years

in prison. In the bill of costs, the trial court assessed Appellant a $25 time payment fee. See

TEX. LOCAL GOV’T CODE § 133.103. On appeal, the Court of Appeals struck a portion of that

fee as being unconstitutional. Ortega v. State, No. 11-19-00081-CR, 2019 Tex. App. LEXIS
                                                                             ORTEGA - 2


9199 (Tex. App. – Eastland Oct. 18, 2019).

      The State has filed a petition for discretionary review arguing that the time payment

fee was prematurely assessed. We recently handed down our opinion in Dulin v. State, Nos.

PD-0856-19 & PD-0857-19, 2021 Tex. Crim. App. LEXIS 273 (Tex. Crim. App. Mar. 31,

2021), in which we held that the time payment fee was assessed prematurely because the

pendency of appeal suspends the obligation to pay court costs.

      Accordingly, we grant ground one of the State’s petition for discretionary review,

vacate the judgment of the Court of Appeals, and remand this case to the Court of Appeals

for proceedings consistent with this opinion. The State’s other grounds are refused.


DATE DELIVERED: MAY 12, 2021

DO NOT PUBLISH