                            In the
                       Court of Appeals
               Second Appellate District of Texas
                        at Fort Worth
                      ___________________________

                           No. 02-18-00176-CR
                      ___________________________

                KENDRA PHILLIANA MAXION, Appellant

                                     V.

                          THE STATE OF TEXAS


                   On Appeal from the 297th District Court
                          Tarrant County, Texas
                        Trial Court No. 1398848D


                    Before Gabriel, Pittman, and Bassel, JJ.
              Memorandum Opinion on Rehearing by Justice Bassel
Dissenting and Concurring Memorandum Opinion on Rehearing by Justice Gabriel
                MEMORANDUM OPINION ON REHEARING

      On December 31, 2018, this court issued an opinion modifying the trial court’s

judgment to delete $555 in reparations that were not supported either by statute or by

the record.   The State filed a motion for rehearing and a motion for en banc

reconsideration contending that the language we used in reaching our holding

intimated that the State was required to plead or to allege the failure to pay probation

fees as a ground in its petition to proceed to adjudication in order to recover such fees

and asserting that the record is sufficient to support the reparations ordered by the

trial court. We deny the State’s motion for rehearing but withdraw our prior opinion

and judgment dated December 31, 2018, and substitute the following opinion and

judgment. We dismiss the State’s motion for en banc reconsideration as moot.

                                   I. Introduction

      In a single point, Appellant Kendra Philliana Maxion challenges the fee “DUE

TO CSCD” and the probation fees ordered as reparations in the judgment

adjudicating her guilt. Because there is no statutory basis for the fee “DUE TO

CSCD” and because the record does not support the probation fees, we delete the

reparations from the order to withdraw funds and from the judgment and affirm the

judgment as modified.

                                   II. Background

      On June 16, 2015, the trial court placed Maxion on five years’ deferred-

adjudication community supervision. See Tex. Penal Code Ann. § 38.04(b)(2)(A).


                                           2
Maxion’s conditions of community supervision required her to pay a supervision fee

of $60 monthly beginning July 15, 2015. The State ultimately filed a sixth amended

petition to proceed to adjudication, alleging that Maxion had violated eight conditions

of her community supervision. On March 28, 2018, the trial court held a hearing at

which the State waived several violations, and Maxion pleaded true to the remaining

violations. The trial court accepted Maxion’s pleas of true, adjudicated her guilty of

the original offense of evading arrest or detention with a motor vehicle, and sentenced

her to six years’ imprisonment. The judgment orders Maxion to pay reparations in

the amount of $555, which consists of $540 in probation fees and $15 in fees “DUE

TO CSCD.”

      III. Reparations Not Supported Either by Statute or by the Record

               A. Reparations Labeled as Fee “DUE TO CSCD”

      In her sole point, Maxion argues that the trial court violated her right to due

process when it imposed money “DUE TO CSCD” and probation fees as reparations

in the judgment. The State concedes that the $15 fee “DUE TO CSCD” should be

deleted from the reparations total because there is no statutory basis for the fee. We

agree. See Lewis v. State, 423 S.W.3d 451, 461 (Tex. App.—Fort Worth 2013, pet.

ref’d) (striking from the reparations total the amount “DUE TO CSCD” because

there was no support in the record to show where the amount came from); see also

Demerson v. State, No. 02-18-00003-CR, 2018 WL 3580893, at *3 (Tex. App.—Fort

Worth July 26, 2018, no pet.) (mem. op., not designated for publication) (collecting


                                          3
cases from this court deleting fees “DUE TO CSCD”). We therefore sustain the

portion of Maxion’s sole point challenging the portion of reparations that represents

fees “DUE TO CSCD.”

                    B. Reparations Labeled as Probation Fees

      With regard to the portion of the reparations that represents probation fees,

Maxion challenges that reparations can be defined broadly enough to include

probation fees.   We have repeatedly rejected this argument, and we decline to

reexamine the argument here. 1 See Zamarripa v. State, 506 S.W.3d 715, 716 (Tex.

App.—Fort Worth 2016, pet. ref’d); Tucker v. State, Nos. 02-15-00265-CR, 02-15-

00266-CR, 2016 WL 742087, at *2 (Tex. App.—Fort Worth Feb. 25, 2016, pet. ref’d)

(mem. op., not designated for publication).

      Because the statement of an issue is treated as covering every subsidiary

question that is fairly included, we broadly construe Maxion’s argument to also

challenge the trial court’s imposition of probation fees. See generally Tex. R. App. P.

38.1(f) (stating rule on issues presented in briefs). The code of criminal procedure

provides that “a judge who grants community supervision to a defendant shall set a

fee of not less than $25 and not more than $60 to be paid each month during the

period of community supervision by the defendant.” Tex. Code Crim. Proc. Ann. art.

42A.652(a). The code of criminal procedure also mandates that when a person is

required to pay a cost, that cost must be documented by a bill. See id. art. 103.001(b).



      1
       Maxion’s brief acknowledges that this court has held contrary to her argument.
                                           4
The fact that the charge for community supervision is described as a fee rather than as

a cost does not except it from the requirement of including it on a written bill. Cf.

Beard v. State, Nos. 09-13-00391-CR, 09-13-00392-CR, 2013 WL 6705981, at *2 (Tex.

App.—Beaumont Dec. 18, 2013, no pet.) (mem. op., not designated for publication)

(treating administrative fee that is assessed for an individual’s failure to pay the

monthly community supervision fee as a cost subject to the requirements of article

103.001); cf. also Ireland v. State, No. 03-14-00615-CR, 2015 WL 4914732, at *1 (Tex.

App.—Austin Aug. 12, 2015, no pet.) (mem. op., not designated for publication)

(discussing administrative transaction fee established by article 102.072 as a court

cost).

         A record is sufficient to support a requirement to pay owed probation fees as

reparations when it contains an uncontradicted, unobjected-to CSCD balance sheet

showing the arrearage. See Smith v. State, Nos. 02-16-00412-CR, 02-16-00413-CR,

2017 WL 2276751, at *4 (Tex. App.—Fort Worth May 25, 2017, pet. ref’d) (mem. op.,

not designated for publication). The Texas Court of Criminal Appeals has noted that

although a bill of costs is not required to support a judgment for costs, “it is the most

expedient, and therefore, preferable method.” Johnson v. State, 423 S.W.3d 385, 396

(Tex. Crim. App. 2014); see Steen v. State, No. 02-13-00559-CR, 2014 WL 4243702, at

*2 (Tex. App.—Fort Worth Aug. 28, 2014, pet. ref’d) (mem. op., not designated for

publication) (applying Johnson to probation fees assessed in bill of costs). Accordingly,

this court has previously relied on the bill of costs or an uncontradicted CSCD


                                           5
balance sheet or both—when they reflect the same amount—to determine the

amount of probation fees due, as exemplified in the following cases.

                          1. Summary of Prior Holdings2

      In Steen, we held that the certified bill of costs, showing that the appellant owed

$2,507 in community-supervision fees at the time of the revocation hearing was

“enough to support inclusion in the judgment of $2,507 in statutorily-authorized,

community-supervision fees.” 2014 WL 4243702, at *2. In that case, the record also

included a CSCD balance sheet showing fees “DUE TO CSCD” of $137 and

probation fees of $2,370 for total reparations of $2,507.

      In Tucker, we held that “[t]he amount of the community supervision fees owed

were supplied by the Balance Sheet and the Certified Bill of Costs, both of which are

part of the record. This is sufficient evidence to support the amount of $120 in

community supervision fees assessed as reparations.” 2016 WL 742087, at *2.

      In Taylor v. State, both the bill of costs and the CSCD balance sheet reflected

that the appellant owed $135 in reparations, and only the list of fee breakdowns

showed that there was $0 in probation fees remaining. No. 02-15-00425-CR, 2016

WL 3159156, at *5 (Tex. App.—Fort Worth June 2, 2016, pet. ref’d) (mem. op., not

designated for publication). We looked at the three documents collectively in the light

most favorable to the award of reparations and held that the certified bill of costs and




      2
       Each of the following cases dealt with reparations assessed in Tarrant County.
                                           6
the CSCD balance sheet “qualif[ied] as sufficient evidence to support the

reparations.” Id.

      Similarly, in Zamarripa, we held that “the $292 in community supervision fees

appearing on the balance sheet and on the certified bill of costs support[ed] the award

of $292 in community supervisions fees listed as reparations in the trial court’s

judgment” and disregarded the list of fee breakdowns that showed $0 for probation

fees remaining. 506 S.W.3d at 716–17.

      In Smith, we held that “in the absence of contradicting evidence showing that

appellant did not owe the reparations or had already paid them, the CSCD balance

sheet contained in the record is sufficient to support the reparations.” 2017 WL

2276751, at *3 (footnote omitted). The record, however, reflects that the bill of costs

did not list any probation fees, that the CSCD balance sheet reflected probation fees

of $1,085 as reparations, and that the list of fee breakdowns reflected $0 in probation

fees remaining.

      In Hill v. State, the record contained contradictory documents showing that the

appellant owed probation fees of either $1,605 (the CSCD balance sheet) or $0 (the

bill of costs did not list any and the list of fee breakdowns reflected $0), and the State

conceded that there was no evidence or any finding in the record that the appellant

had failed to pay $1,605 in probation fees. No. 02-17-00088-CR, 2017 WL 3821898,

at *1 (Tex. App.—Fort Worth Aug. 31, 2017, no pet.) (mem. op., not designated for

publication). We agreed and deleted the reparations.


                                            7
      In Riojas v. State, we relied solely on the CSCD balance sheet and did not

mention the bill of costs, which was part of the record and did not list any

outstanding probation fees. No. 02-18-00026-CR, 2018 WL 3580897, at *2 (Tex.

App.—Fort Worth July 26, 2018, no pet.) (mem. op., not designated for publication).

Utilizing the terms from the appellant’s conditions of community supervision, we

multiplied the $60 monthly fee times the eight months that had elapsed between when

the trial court placed the appellant on deferred-adjudication community supervision

and when it revoked his community supervision. Id. That amount—$480—matched

the amount shown on the CSCD balance sheet. Id. Accordingly, we held that the

record supported the $480 portion of the reparations ordered for probation fees. Id.

      In Ayala v. State, we relied on the CSCD balance sheet instead of the list of fee

breakdowns but recalculated the probation fees because the State conceded that it had

charged the appellant for one extra month. No. 02-17-00385-CR, 2018 WL 2727954,

at *1 (Tex. App.—Fort Worth June 7, 2018, no pet.) (mem. op., not designated for

publication). The opinion does not mention the bill of costs, which was included in

the record but did not list probation fees.

                                      2. Analysis

      Here, the March 28, 2018 certified bill of costs, which is attached to this

opinion as Appendix A, shows total costs of $0. The CSCD balance sheet—which

was prepared six days later on April 3, 2018, and is attached to this opinion as

Appendix B—shows $540 in probation fees. The “List of Fee Breakdowns,” which


                                              8
was prepared on April 3, 2018, and is attached to this opinion as Appendix C, shows

that Maxion owed $0 in probation fees. On the face of these documents, there is a

contradiction in the amount of probation fees that remain outstanding.

       In its motion for rehearing, the State attempts to explain away any

contradiction as follows:

       While the District Clerk’s certified bill of costs and “List of Fee
       Breakdowns” do not show that Appellant owed probation fees at that
       time, these documents are not inconsistent and do not present
       contradictory evidence. All of these documents, together, demonstrate
       that on March 28, 2018, the day of Appellant’s adjudication, no
       additional costs had been assessed when the Certified Bill of Costs was
       created. Then, on April 3, 2018, the Community Supervision and
       Corrections Department calculated Appellant’s probation fees arrears at
       $540.00 and converted them to Reparations. Finally, when the district
       clerk pulled the records and created the List of Fee Breakdowns, the
       remaining balance on probation fees was “$0.00” because, at that time,
       Appellant no longer owed probation fees but owed reparations. And the
       District Clerk’s List of Fee Breakdowns makes no reference to
       reparations. In short, the Certified Bill of Cost, the District Clerk’s List
       of Fee Breakdowns[,] and the CSCD Balance Sheet, considered together,
       confirm that Appellant owed probation fees. [Record references and
       footnotes omitted.]

This explanation of the procedure for how and when probation fees were converted

to reparations is not, however, in the record. Nor does it explain why the total

reparations were not listed on the bill of costs.3



       3
        We note that the records from prior Tarrant County cases have listed
reparations on the bill of costs. See Zamarripa, 506 S.W.3d at 717 (mentioning that
community supervision fees were shown on the certified bill of costs; record reflects
that the bill of costs lists the fee as “Reparation (Probation Fees)”); Taylor, 2016 WL
3159156, at *5 (same); Tucker, 2016 WL 742087, at *2 (same); Steen, 2014 WL
4243702, at *2 (stating that “[t]he certified bill of cost, included in the record of this
case, show[ed that] Appellant owed $2,507 in community-supervision fees”; record
                                             9
       Moreover, even if we assume that the above procedure was utilized and that

the probation fees were converted to reparations, neither we nor the State can

calculate the amount of outstanding probation fees. The State in its motion for

rehearing states that Maxion’s total exposure for probation fees was $1,980, which

was calculated by multiplying $60 per month times the thirty-three months (from

July 15, 2015 through March 15, 2018) that she was on probation. But the amount of

outstanding probation fees shown on the CSCD balance sheet is $540. The State

concludes,

       While there is no specific evidence regarding what months Appellant did
       or did not pay [probation fees], this document [the CSCD balance sheet]
       supports that Appellant owed $540 in probation fees because she did not
       pay off the entire $1980 owed.

              In short, the evidence was sufficient to support the trial court’s
       order for reparations. [Record references omitted.]

The State thus concedes that the amount of probation fees remaining cannot be

calculated based on the record before us and that instead of calculating the amount,

we are to rely on a single-line gross accounting entry that has no supporting detail.4


reflects that the bill of costs lists the fee as “Reparation (Probation Fees)”); Strange v.
State, No. 02-14-00055-CR, 2014 WL 3868225 (Tex. App.—Fort Worth Aug. 7, 2014,
no pet.) (mem. op., not designated for publication) (although not stated in the opinion
because the State conceded error, the record contains a bill of costs reflecting
“Reparation (Probation Fees)” of $443).
      4
        While we agree with the State that the existence of administrative documents
in the record can be sufficient evidence to support an order for reparation, the
administrative documents in the record in this case are insufficient to show that
“there is a basis for the cost.” See Johnson, 423 S.W.3d at 390. And unlike Zamarripa,
which the State urges us to rely on, we do not have a certified bill of costs that
matches the CSCD balance sheet. 506 S.W.3d at 716.
                                            10
      As set forth above, we have no case from this court in which a contradiction

between the CSCD balance sheet and the bill of costs was highlighted and in which

we chose to rely solely on the CSCD balance sheet for the amount of probation fees

remaining. Nor have we relied solely on the CSCD balance sheet without being able

to recalculate the amount shown or the amount conceded by the State.

      Because the CSCD balance sheet is contradicted by the bill of costs and

because the amount shown on the CSCD balance sheet cannot be recalculated, we

conclude that the record does not support the amount of probation fees assessed as

reparations. See Hill, 2017 WL 3821898, at *1. Accordingly, we sustain the remainder

of Maxion’s sole point.

                                  IV. Conclusion

      Having sustained Maxion’s sole point challenging the reparations ordered in the

judgment, we delete $555 from the order to withdraw funds so that it reflects that $0

should be withdrawn from Maxion’s inmate trust account; we delete the line in the

judgment that states, “REPARATIONS IN THE AMOUNT OF $555”; and we

affirm the judgment as modified. See id. (striking reparations when the only evidence

of probation fees was contradictory).

                                                    /s/ Dabney Bassel
                                                    Dabney Bassel
                                                    Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: April 4, 2019

                                         11
Appendix A




    12
Appendix B




   13
Appendix C




   14
