NO. 12-20-00223-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
MARK SCHWADER, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Mark Schwader appeals the court costs set forth in the trial court’s judgment. In one
issue, Appellant argues that the portion of these costs, which consist of a “time payment” fee, as
set forth in the trial court’s bill of costs, is unconstitutional. We modify and affirm as modified.
BACKGROUND
Appellant was charged by indictment with possession of less than one gram of
methamphetamine and pleaded “guilty.” The trial court deferred finding Appellant “guilty,” and
placed him on community supervision for five years. Subsequently, the State filed a motion to
proceed to final adjudication, in which it alleged that Appellant violated certain terms and
conditions of his community supervision. Following a hearing on the matter, the trial court
found the allegations in the State’s motion to be “true,” revoked Appellant’s community
supervision, adjudicated him “guilty” as charged, and sentenced him to confinement for two
years. This appeal followed.
TIME PAYMENT FEE
In his sole issue, Appellant argues that costs attributable to the time payment fee, as set
forth in the trial court’s bill of costs, is unconstitutional.
The trial court’s judgment sets forth that Appellant is obligated to pay court costs in the
amount of $74.00. The judgment includes a document entitled “Order to Withdraw Funds,”
which states that Appellant incurred “[c]ourt costs, fees, fines and/or restitution in the amount of
$74.00.” The bill of costs itemizes the court costs imposed, which total $314.00 with a remaining
balance of $74.00. The bill of costs also includes a $25.00 “time payment” fee with a remaining
balance of $6.75. Furthermore, it includes a paragraph stating that an additional $15.00 fee will
be assessed if any part of the court costs is paid on or after the 31st day after the judgment
assessing the court costs is entered. But see TEX. LOC. GOV’T CODE ANN. § 133.103(c),
redesignated as TEX. CODE CRIM. PROC. ANN. art. 102.030 (West Supp. 2020) (treasurer shall
deposit ten percent of fees collected under this section in general fund of county or municipality
for purpose of improving efficiency of administration of justice in county or municipality).
The court of criminal appeals recently held that the pendency of an appeal “stops the
clock” for purposes of the time payment fee. Dulin v. State, 620 S.W.3d 129, 133 (Tex. Crim.
2021). Consequently, the assessment of the time payment fee in Appellant’s case is premature
and should be struck in its entirety, without prejudice to its being assessed later if, more than
thirty days after the issuance of the appellate mandate, the defendant has failed completely to pay
any fine, court costs, or restitution that he owes. Id. 1
DISPOSITION
Based on the foregoing, we modify the trial court’s judgment, along with its attached
order to withdraw funds, to reflect that Appellant’s court costs are $67.25 by deleting the $6.75
time payment fee balance, 2 without prejudice to its being assessed later, if, more than thirty days
after the issuance of our mandate, Appellant fails to completely pay fines, court costs, or
restitution he owes. We affirm the judgment as modified.
BRIAN HOYLE
Justice
1
Because the fee assessment Appellant challenges in his first issue is premature, we do not consider the
constitutionality of the fee. See TEX. R. APP. P. 47.1.
2
The $74.00 in court costs ordered by the trial court in its judgment of conviction is reflected in the
“balance” column of the bill of costs. Although Appellant’s brief references the time payment fee assessed as being
$25.00, he makes no argument in his brief that he is seeking to appeal court costs imposed in the order placing him
on community supervision, nor is that order referenced in his notice of appeal. Thus, we have limited our analysis to
the court costs ordered in the judgment of conviction.
2
Opinion delivered July 21, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
3
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JULY 21, 2021
NO. 12-20-00223-CR
MARK SCHWADER,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0792-19)
THIS CAUSE came to be heard on the appellate record and the briefs filed herein,
and the same being considered, because it is the opinion of this court that the judgment of the
court below should be modified and as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the
court below be modified to reflect that Appellant’s court costs are $67.25 by deleting the $6.75
time payment fee balance with prejudice to its being assessed later if, more than thirty days after
the issuance of our mandate, Appellant fails to completely pay fines, court costs, or restitution he
may owe; in all other respects the judgment of the trial court is affirmed; and that this decision
be certified to the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.