WITHDRAW AND AFFIRM; Opinion Filed July 20, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00764-CR
TIMOTHY DONHAM, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F19-40292-R
MEMORANDUM OPINION ON REMAND
Before Justices Schenck, Molberg, and Nowell
Opinion by Justice Schenck
On our own motion, we withdraw our opinion dated June 29, 2021. This is
now the opinion of the Court.
The case is before us is on remand from the Texas Court of Criminal Appeals.
In our original opinion dated May 27, 2020, we held a portion of a $25 time payment
fee assessed as part of the court costs under section 133.103 of the Local Government
Code was facially unconstitutional. The State filed a petition for discretionary
review with the court of criminal appeals. The court of criminal appeals recently
handed down its opinion in Dulin v. State, 620 S.W.3d 129 (Tex. Crim. App. 2021),
in which the court held that the time payment fee was assessed prematurely because
the pendency of an appeal suspends the obligation to pay court costs. Accordingly,
the court refused the State’s petition and instead granted review on its own motion
of the following restated question: Should the “Time Payment Fee” be struck as
prematurely assessed? The court then vacated our judgment and remanded this case
to us for consideration of that question in light of Dulin.
We affirm the judgment. Because all issues are settled in law, we issue this
memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
In October 2018, appellant met the complainant on a dating website, and he
soon thereafter moved in with her. By January 2019, the complainant decided to
end the relationship and sought to evict appellant. Appellant was upset by this turn
of events and sent threatening messages to the complainant over several days. The
day after the complainant ended the relationship, she discovered her car’s windshield
was cracked. She suspected appellant. When she confronted appellant, he denied
breaking her windshield and told her that, “if it were him, [her] car would be on fire.”
On the night of January 29, the complainant woke up to learn both her car and her
mother’s car were on fire.
In March 2019, appellant was charged by separate indictments for arson and
stalking. Appellant judicially confessed and entered open pleas of guilty to each
charge. The trial court assessed punishment at six years’ confinement in each case.
Appellant timely appealed.
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DISCUSSION
As with our original opinion, the issue is whether a portion of the time
payment fee is facially unconstitutional.
Appellant contends a portion of a $25 time payment fee assessed as part of
the court costs in the arson case under section 133.103 of the Local Government
Code is facially unconstitutional. Specifically, he argues that the fees collected
under subsections (b) and (d) were not collected for a legitimate criminal purpose
and therefore violate the separation of powers provision of the Texas Constitution.
He asks that we modify the judgment to delete $22.50 of the court costs assessed in
the arson case.
The State argues that appellant has waived this complaint by failing to object
below. We disagree. Although appellant did not object to the costs in the trial court,
the costs were not imposed in open court and the written judgment does not contain
an itemization of the imposed costs. Thus, appellant may challenge the
constitutionality of the costs for the first time on appeal. See Johnson v. State, 537
S.W.3d 929, 929 (Tex. Crim. App. 2017) (per curiam).
As to the merits of his complaint, we now address the question posed by the
criminal court of appeals: whether the time payment fee should be struck as
prematurely assessed. Section 133.103 provides for a time payment fee to be
assessed if the defendant pays some or all of his fine, court costs, or restitution on or
after the 31st day after the date on which a judgment is entered assessing the fine,
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court costs, or restitution. See TEX. LOC. GOV’T CODE ANN. § 133.103. Appellant
filed his notice of appeal the same day on June 24, 2019. The bill of costs in the
record reflects appellant was assessed a time payment fee on July 25, 2019, which
was in addition to the costs assessed in the judgment. As noted by the court of
criminal appeals, the pendency of an appeal stops the clock for purposes of the time
payment fee. See Dulin, 620 S.W.3d at 133. Consequently, the assessment of the
time payment fee in appellant’s case is premature, and the judgment properly does
not—at the time of this opinion—include the time payment fee. See id. (holding
fees prematurely assessed “should be struck in their entirety, without prejudice to
them being later assessed if, more than 30 days after the issuance of the appellate
mandate, the defendant has failed to completely pay any fine, court costs, or
restitution that he owes”). Accordingly, we overrule the sole issue in this appeal
inasmuch as it seeks reduction of the amount of costs included in the judgment.
As for any premature assessment of the fees in the bill of costs, “there is an
available statutory remedy to challenge the time payment fee.” See id. at 133 n.29
(citing TEX. CODE CRIM. PRO. ANN. art. 103.008). Article 103.008 provides:
On the filing of a motion by a defendant not later than one year after
the date of the final disposition of a case in which costs were imposed,
the court in which the case is pending or was last pending shall correct
any error in the costs.
CRIM. PRO. art. 103.008. We construe appellant’s brief to be a motion
properly filed under Article 103.008. We refer back to our previous conclusion that
any assessment of the time payment fee in appellant’s case is premature and modify
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the bill of costs to delete the premature assessment of the time payment fee without
prejudice to later assessment if, more than 30 days after the issuance of the appellate
mandate, the defendant has failed to completely pay any fine, court costs, or
restitution that he owes. See id.; Dulin, 620 S.W.3d at 133; see, e.g., Williams v.
State, No. 05-19-00831-CR, 2020 WL 6128232, at *1 (Tex. App.—Dallas Oct. 19,
2020, no pet.) (mem. op., not designated for publication) (citing Burton v. State, No.
05-18-00608-CR, 2019 WL 3543580, at *3 (Tex. App.—Dallas Aug. 5, 2019, no
pet.) (mem. op., not designated for publication)) (modifying bill of costs after noting
this Court’s power to correct bill of costs where record provides information
necessary to do so).
CONCLUSION
We modify the bill of costs to delete the premature assessment of the time
payment fee without prejudice to later assessment if, more than 30 days after the
issuance of the appellate mandate, the defendant has failed to completely pay any
fine, court costs, or restitution that he owes. We otherwise affirm the trial court’s
judgment.
/David J. Schenck//
DAVID J. SCHENCK
190764f.u05 JUSTICE
DO NOT PUBLISH
Tex. R. App. P. 47
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
TIMOTHY DONHAM, Appellant On Appeal from the 265th Judicial
District Court, Dallas County, Texas
No. 05-19-00764-CR V. Trial Court Cause No. F19-40292-R.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Schenck. Justices Molberg and
Nowell participating.
On the Court’s own motion, we WITHDRAW the June 29, 2021 opinion and
VACATE the June 29, 2021 judgment. This is now the judgment of the Court.
Based on the Court’s opinion of this date, we MODIFY the bill of costs to
delete the premature assessment of the time payment without prejudice to later
assessment if, more than 30 days after the issuance of the appellate mandate, the
defendant has failed to completely pay any fine, court costs, or restitution that he
owes.
We otherwise AFFIRM the trial court’s judgment.
Judgment entered this 20th day of July, 2021.
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