Opinion filed September 12, 2019




                                     In The

        Eleventh Court of Appeals
                                   ___________

                              No. 11-19-00037-CR
                                   ___________

                 KIMBERLY ANNE HUTSON, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 32nd District Court
                             Nolan County, Texas
                         Trial Court Cause No. 12371


                     MEMORANDUM OPINION
      Based upon an open plea of guilty, the trial court convicted Kimberly Anne
Hutson, Appellant, of the first-degree felony offense of manufacture or delivery of
a controlled substance, methamphetamine, in an amount between four and two
hundred grams. After a hearing on punishment, the trial court assessed Appellant’s
punishment at confinement for twenty-seven years. We modify the trial court’s
judgment and affirm as modified.
          Appellant’s court-appointed counsel has filed a motion to withdraw. The
motion is supported by a brief in which counsel professionally and conscientiously
examines the record and applicable law and concludes that this appeal is frivolous
and without merit. Counsel has provided Appellant with a copy of the brief, a copy
of the motion to withdraw, a copy of the clerk’s record and the reporter’s record, and
an explanatory letter. Counsel advised Appellant of her right to review the record
and file a response to counsel’s brief. Counsel also advised Appellant of her right
to file a petition for discretionary review in order to seek review by the Texas Court
of Criminal Appeals. See TEX. R. APP. P. 68. Court-appointed counsel has complied
with the requirements of Anders v. California, 386 U.S. 738 (1967); Kelly v. State,
436 S.W.3d 313 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d 403 (Tex.
Crim. App. 2008); and Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).
          Appellant filed a pro se response to counsel’s Anders brief. In her response,
Appellant presents five points of error. Following the procedures outlined in Anders
and Schulman, we have independently reviewed the record and Appellant’s response
to counsel’s brief, and we agree with counsel that no arguable grounds for appeal
exist.1
          Appellate counsel asserts that, although there is no reversible error in this case,
there are nonreversible errors. In the judgment, the trial court ordered Appellant to
pay “$423.00 court costs [which includes a time payment fee of $25.00 and a DNA
community supervision fee of $34.00]; $180.00 restitution to the Texas Department
of Public Safety Crime Laboratory, Abilene, Texas; $______ attorney[’]s fees; and
$50.00 Crime Stoppers.” There are nonreversible errors associated with the above-
quoted portion of the judgment.


          1
         We note that Appellant has a right to file a petition for discretionary review pursuant to Rule 68
of the Texas Rules of Appellate Procedure.

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      With respect to court costs, the court costs included a Time Payment Fee of
$25 pursuant to Section 133.103 of the Texas Local Government Code. See TEX.
LOC. GOV’T CODE ANN. § 133.103 (West Supp. 2018). We recently held that
subsections (b) and (d) of that section are facially unconstitutional because the
collected fees are allocated to general revenue and are not sufficiently related to the
criminal justice system. See King v. State, No. 11-17-00179-CR, 2019 WL 3023513,
at *1, *5–6 (Tex. App.—Eastland July 11, 2019, pet. filed) (mem. op., not designated
for publication). Accordingly, the trial court erred when it assessed a Time Payment
Fee under Section 133.103, subsections (b) and (d) of the Texas Local Government
Code as a court cost. See id. When the trial court erroneously includes fees as court
costs, we should modify the trial court’s judgment to remove the improperly
assessed fees. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013).
We, therefore, modify the trial court’s judgment to delete $22.50 of the Time
Payment Fee assessed as court costs, leaving a Time Payment Fee of $2.50. See
King, 2019 WL 3023513, at *5–6.
      The court costs also included a DNA community supervision fee of $34.
Article 102.020 of the Texas Code of Criminal Procedure provides for court costs
related to DNA testing. TEX. CODE CRIM. PROC. ANN. art. 102.020 (West 2018).
Article 102.020(a)(3) provides that a person shall pay $34 as a cost of court when
the person is placed on community supervision and is required to submit a DNA
sample. Id. art. 102.020(a)(3). Appellant, however, was not placed on community
supervision. Therefore, the $34 DNA community supervision fee is not supported
by the record. Willis v. State, 532 S.W.3d 461, 469 (Tex. App.—Texarkana 2017,
no pet.). We modify the trial court’s judgment to delete the $34 DNA community
supervision fee.
      Similarly, with respect to restitution, a trial court has authority to require a
probationer to reimburse a DPS crime lab for lab fees as a condition of probation;
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however, a trial court has no authority to assess DPS lab fees as restitution when a
defendant is sentenced to imprisonment. King v. State, No. 12-17-00194-CR, 2018
WL 345737, at *2 (Tex. App.—Tyler Jan. 10, 2018, no pet.) (mem. op., not
designated for publication) (citing Aguilar v. State, 279 S.W.3d 350, 353 (Tex.
App.—Austin 2007, no pet.)); see Jackson v. State, 562 S.W.3d 717, 724 (Tex.
App.—Amarillo 2018, no pet.); see also Johnson v. State, 365 S.W.3d 484, 491–92
(Tex. App.—Tyler 2012, no pet.) (holding that there was insufficient evidence to
support reimbursement order to DPS).           Here, Appellant was sentenced to
imprisonment. Thus, the trial court had no authority to order Appellant to reimburse
the DPS crime lab. See King, 2018 WL 345737, at *2. Moreover, DPS lab fees are
not properly subject to a restitution order. Id.; see Hanna v. State, 426 S.W.3d 87,
91 (Tex. Crim. App. 2014) (recognizing that restitution “may be ordered only to a
victim of an offense for which the defendant is charged”). A trial court is authorized
to order a defendant convicted of an offense to pay restitution to a victim of the
offense or to a crime victim’s assistance fund, not to an agency of the State of Texas.
CRIM. PROC. art. 42.037(a); see King, 2018 WL 345737, at *2.
      Because restitution to the DPS crime lab is not authorized under
Article 42.037(a), because the trial court did not impose any restitution when it
pronounced Appellant’s punishment in open court, and because no evidence
supports the $180 assessment, we hold that the trial court erred when it ordered $180
in restitution payable to the DPS crime lab. Deletion of a written restitution order is
appropriate when the trial court lacked statutory authority to impose the specific
restitution order, such as when restitution has been ordered to be paid to someone
who was not a victim of the offense. Burt v. State, 445 S.W.3d 752, 757–58 (Tex.
Crim. App. 2014). Thus, the $180 in restitution should be deleted from the
judgment. See id.; Jackson, 562 S.W.3d at 724 (deleting from trial court’s judgment
a $180 fee for restitution to the Texas Department of Public Safety Crime
                                          4
Laboratory); King, 2018 WL 345737, at *2; Milligan v. State, No. 02-16-00035-CR,
2016 WL 6123643, at *1–2 & n.2 (Tex. App.—Fort Worth Oct. 20, 2016, no pet.)
(mem. op., not designated for publication) (deleting from judgment $180 in lab-
related restitution payable to the Texas Department of Public Safety). Accordingly,
we modify the trial court’s judgment to delete the restitution of $180 payable to the
DPS crime lab.
      The trial court’s judgment also imposed a $50 Crime Stoppers fee. When a
person is convicted of an offense, a separately assessed $50 fee for Crime Stoppers
is inappropriate unless the defendant is ordered to repay all or part of a specific
reward paid by a crime stoppers organization related to the prosecution of the
defendant. See CRIM. PROC. art. 37.073; Jackson, 562 S.W.3d at 723–24; see also
CRIM. PROC. art. 42A.301(b)(20) (providing that a trial court may impose a fee of up
to $50 to be paid to a crime stoppers organization as a condition of community
supervision). Appellant was not placed on community supervision, and nothing in
the appellate record reflects that any reward was by paid by a crime stoppers
organization with respect to the prosecution of Appellant. Accordingly, we modify
the trial court’s judgment to delete the $50.00 Crime Stoppers fee.
      Finally, in open court, the trial court ordered “all costs and attorney’s fees to
be reimbursed to Nolan County for [trial counsel’s] representation.” The trial court’s
judgment includes the assessment of an unknown amount of attorney’s fees. The
clerk’s record reflects that Appellant filed an application for a court-appointed
attorney and that the trial court appointed an attorney to represent Appellant at trial,
though Appellant did not, at that time, “meet the indigency standards” of the trial
court. The trial court subsequently appointed counsel to represent Appellant on
appeal, finding that Appellant “is indigent.” Because the trial court determined that
Appellant was indigent near the time of her conviction and because nothing in the
record from Appellant’s trial demonstrated that she was able to pay all or part of her
                                           5
attorney’s fees, the trial court erred by ordering the repayment of those attorney’s
fees. See Mayer v. State, 309 S.W.3d 552, 555–56 (Tex. Crim. App. 2010); Jackson,
562 S.W.3d at 723. We modify the trial court’s judgment to delete any requirement
that Appellant reimburse the county for attorney’s fees in this cause.
        We grant counsel’s motion to withdraw, and we modify the judgment of the
trial court (1) to reflect court costs of $366.50 (deleting the DNA community
supervision fee of $34.00 and $22.50 of the time payment fee) and (2) to delete the
following language: “$180.00 restitution to the Texas Department of Public Safety
Crime Laboratory, Abilene, Texas; $______ attorney[’]s fees; and $50.00 Crime
Stoppers”; “RESTITUTION: $180.00”; and “CRIME STOPPERS: $50.00.” As
modified, we affirm the judgment of the trial court.


                                                                   PER CURIAM


September 12, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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