








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0861-12


RUSSELL CATES, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE ELEVENTH COURT OF APPEALS

MCLENNAN COUNTY



 Meyers, J., delivered the opinion for a unanimous Court.  Keller,
P.J., filed a concurring opinion.

O P I N I O N

	Appellant, Russell Cates, was convicted of unauthorized use of a motor vehicle.
He was sentenced to 24 months in a state-jail facility and assessed a $5,000 fine.  The
trial court found that Appellant was unable to pay costs "on this date" and ordered that the
funds, in the amount of $6,389.75, be withdrawn from Appellant's inmate trust account. 
Appellant appealed, arguing that the trial court erred in ordering him to pay $1,039.75 in
court-appointed attorney's fees as part of court costs.  Specifically, Appellant argued that,
because the trial court found him to be indigent and there is no factual basis in the record
to support a determination that he can pay the fees, the evidence was insufficient to
support the trial court's order.  
	The court of appeals determined that the record supports the trial court's finding
that Appellant can pay at least a portion of the fees from a percentage of funds available
to him through his inmate trust account while he is incarcerated.  The court of appeals
modified the trial court's judgment to limit Appellant's liability for the attorney's fees
that were assessed as costs to the withholdings taken from his inmate trust account during
his incarceration.
	Appellant filed a petition for discretionary review, which we granted to consider
whether the court of appeals erred by creating an exception to Mayer v. State, 309 S.W.3d
552 (Tex. Crim. App. 2010), and holding that withholding money from an indigent
inmate's trust account to pay court-appointed attorney's fees does not violate Code of
Criminal Procedure Article 26.05(g).
ARGUMENTS OF THE PARTIES 

	Appellant argues that the trial court order violated Code of Criminal Procedure
Article 26.05(g) and our holding in Mayer.  He says that, rather than distinguishing Mayer
and modifying the trial-court order, the court of appeals should have reformed the
judgment to delete the requirement to pay the $1,039.75 in court-appointed attorney's fees
from his inmate trust account.  The State agrees and concedes that there is insufficient
evidence in the record to support the assessment of court-appointed attorney's fees.
ANALYSIS

	Code of Criminal Procedure Article 26.05(g) allows the trial court to order a
defendant to re-pay costs of court-appointed legal counsel that the court finds the
defendant is able to pay.  In Mayer, we stated that under Article 26.05(g), "the
defendant's financial resources and ability to pay are explicit critical elements in the trial
court's determination of the propriety of ordering reimbursement of costs and fees."  309
S.W.3d at 556.  However, a "defendant who is determined by the court to be indigent is
presumed to remain indigent for the remainder of the proceedings in the case unless a
material change in the defendant's financial circumstances occurs."  Tex. Code Crim.
Proc. art. 26.04(p).  Here, Appellant had been determined by the trial court to be indigent
and there was never a finding by the court that he was able to re-pay any amount of the
costs of court-appointed legal counsel.  Thus, there was no factual basis in the record to
support a determination that Appellant could pay the fees.  
	Code of Criminal Procedure Article 26.05(g) requires a present determination of
financial resources and does not allow speculation about possible future resources.  The
court of appeals's reasoning that there may, in the future, be funds in Appellant's inmate
trust account and that such funds could be used during his incarceration to re-pay
expenses of his court-appointed counsel, was flawed.
	The parties are correct that the proper remedy is to reform the court of appeals's
judgment by deleting the $1,039.75 in court-appointed attorney's fees from the order
assessing court costs.  
CONCLUSION
	We modify the judgment of the court of appeals to delete the fees of Appellant's
court-appointed attorney that were included in the order for payment of court costs.  The
judgment of the court of appeals is affirmed as modified. 


Delivered: June 26, 2013
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