

NO. 07-09-00091-CR
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL A
 

JULY
29, 2010
 

 
ALTON ARMSTRONG, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 

 
 FROM THE 251ST DISTRICT COURT OF POTTER
COUNTY;
 
NO. 50,712-C; HONORABLE ANA ESTEVEZ, JUDGE

 

 
Before CAMPBELL
and HANCOCK and PIRTLE, JJ.
 
 
MEMORANDUM OPINION
            Appellant, Alton Armstrong, appeals
from an adjudication of guilt of the offense of aggravated assault with a
deadly weapon.[1]  Through three issues, appellant generally
contests court costs assessed against him. 
We overrule appellant’s first issue, decline to address the remaining
issues, and affirm the trial court’s judgment.
 
 
Factual and Procedural Background
            On
August 8, 2005, appellant entered a plea of guilty to the offense of aggravated
assault with a deadly weapon pursuant to a plea agreement.  As part of the plea agreement, no finding of
guilt was entered against appellant, and he was placed on deferred adjudication
community supervision for two years. 
Subsequently, the community supervision order was amended on January 25,
2006, and again on July 6, 2007. 
Thereafter, the State filed a motion to proceed to adjudication on April
23, 2008.  This resulted in an order, entered
on August 11, 2008, continuing appellant on community supervision but modifying
and extending the community supervision. 
On October 17, 2008, the trial court again entered an order amending the
terms and conditions of community supervision. 
Finally, on November 18, 2008, the State filed a motion to proceed to
adjudication that resulted in the judgment from which appellant appeals.  At the hearing on the State’s motion, on
February 26, 2009, appellant pleaded true to the allegations specifying the violations
of community supervision alleged by the State. 
The trial court sentenced appellant to serve six years in the
Institutional Division of the Texas Department of Criminal Justice.  
            The
essence of appellant’s issues concerns the relationship between the written
judgment and the bill of cost submitted by the district clerk.  His first issue asks this Court to determine
whether, absent written or oral incorporation of the bill of costs in the
judgment, the bill of costs is part of the judgment or otherwise of any
effect.  Second, appellant asks whether,
if the bill of cost has any effect, there is sufficient evidence in the record
to support an order for appellant to pay court-appointed attorney’s fees.  Finally, appellant asks, in the alternative,
whether the bill of costs constitutes an order that appellant pay a specific
sum in court-appointed attorney’s fees.
Assessment of Court Costs
            By
his first issue, Appellant contends that, absent incorporation by reference in
the judgment,[2]
the clerk’s bill of costs is of no force or effect.  The judgment in question orders appellant to
pay “all fines, court costs, and restitution as indicated above,” but the
“court costs” field in the judgment is blank. 
The clerk’s record contains a bill of costs issued by the district clerk
reflecting total costs of $2,258.00.
            Except
for $1,900.00 in attorney’s fees for his court-appointed attorneys, which we
address later in this opinion, all the costs listed on the clerk’s bill of
costs appear to be among those listed in section 102.021 or section 102.041 of
the Government Code.  Tex. Gov’t Code Ann.  §§ 102.021, 102.041 (Vernon 2005 and Supp. 2009).  The obligation of a person to pay such costs,
and the obligation of the court clerk to collect them, is established by
statute, not court order.  See, e.g., Tex. Code Crim. Proc. Ann. art. 102.005 (Vernon 2005)
(providing, as to fee for services of the clerk of the court, that a defendant
convicted in the court “shall pay” the fee); Tex.
Gov’t Code Ann. § 102.021 (providing “clerk of
a district court shall collect fees and costs on conviction of a defendant”).
            As
stated by the Texas Court of Criminal Appeals, those fees are an assessment
against a convicted defendant, not as an additional penalty for the crime
committed, but as a non-punitive “recoupment of the costs of judicial resources
expended in connection with the trial of the case.”  Weir v State, 278
S.W.3d 364, 366 (Tex.Crim.App. 2009).  Because those costs are non-punitive, the
court held they did not have to be included in the trial court’s oral
pronouncement of sentence as a precondition to their inclusion in the trial
court’s written judgment.  Id. at 367.  We
further conclude that because the costs, other than the attorney’s fees, of
which appellant complains are his predetermined, legislatively-mandated
obligations, resulting from his conviction, the clerk’s certified bill of costs
imposes an obligation upon him to pay the costs, again other than attorney’s
fees, whether or not that bill is incorporated by reference into the
judgment.  Id.
at 366.  Accordingly, we overrule
appellant’s first issue.
Collection of Costs
            Appellant’s
remaining two conditional issues are more nearly related to the terms of the
trial court’s judgment, but we find we are not permitted to address these
matters in this appeal because they concern collection, rather than assessment,
of costs. Our high courts have drawn a distinction between these two matters,
and we adhere to that distinction by respectfully declining to address civil
matters in this direct appeal from a criminal conviction.  See Harrell, 286
S.W.3d at 318; Johnson, 280 S.W.3d at 869.
            So,
to the extent that appellant’s issues raise matters relating to the ability to
collect costs, we do not address such matters; they are properly a matter for a
civil proceeding related to the collection of costs under the procedure
outlined by the Texas Government Code.  See
Tex. Gov’t
Code Ann.  § 501.014(e) (Vernon
Supp. 2009).  In the record before us,
there is no order from the convicting court authorizing withdrawal of funds
from appellant’s inmate trust account.[3]  In other words, no effort has been made to
collect these costs.  Consequently, any
analysis concerning the ability to collect costs would be advisory in nature,
and we will not render such a judgment.
            “Judicial
power is the power of a court to decide and pronounce a judgment and carry it
into effect between persons and parties who bring a case before it for a
decision.”  Garrett
v. State, 749 S.W.2d 784, 803 (Tex.Crim.App.
1988) (op. on reh’g).  Judicial power does not include the power to
issue advisory opinions.  Id.  The underlying case between the parties is
not one that involves questions of collection of court costs.  Any attempt to address issues concerning the
ability to collect court costs would result in the rendering of an advisory
opinion because we are not faced with an appeal of an order authorizing the
withdrawal of funds from appellant’s trust account, a matter of enforcement or
collection and outside the purview of a direct appeal of a criminal
conviction.  See Harrell, 286 S.W.3d at 318. 
That said, we do not address the substance of
appellant’s second and third conditional issues.  See Dix v. State, 289 S.W.3d
333, 335 (Tex.App.—Eastland 2009, pet. ref’d) (noting that appellant did not contend that trial
court erred and did not challenge his conviction and declining to address
points of error that would result in an advisory opinion); see also Tex. R. App. P. 47.1 (requiring appellate court to address “every
issue raised and necessary to final disposition of the appeal”).
 
Conclusion
            Having
overruled appellant’s first issue and having determined that we may not address
the remaining issues concerning the collection of court costs, we affirm the
trial court’s judgment. 
 
                                                                                                Mackey
K. Hancock
                                                                                                            Justice
Pirtle, J., concurring.  
 
Publish.  
            




[1] See Tex. Penal Code Ann. § 22.02(a)(2)(Vernon Supp. 2009).
 


[2] Appellant contrasts the judgment in this case with
that in Perez v. State, 280 S.W.3d 886, 887 (Tex.App.—Amarillo
2009, no pet.), which ordered that the State “recover of the defendant all
costs in this proceeding incurred, as set out in the Bill of Costs attached
hereto. . . .”


[3] Our law permits the Texas Department of Criminal
Justice to withdraw funds from an inmate's trust account when such has been
authorized by the trial court of conviction and is pursuant to an order by the
court to pay items included in a prioritized statutory list.  Tex. Gov’t Code Ann. § 501.014(e).


