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

          No. 02-19-00283-CR
     ___________________________

 SHANNON CHARLES SCOTT, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 415th District Court
          Parker County, Texas
       Trial Court No. CR17-0757


  Before Gabriel, Bassel, and Womack, JJ.
  Memorandum Opinion by Justice Gabriel
                           MEMORANDUM OPINION

      A jury convicted Appellant Shannon Charles Scott of delivery of a controlled

substance, methamphetamine, in an amount less than one gram, and assessed his

punishment at five years’ confinement.          See Tex. Health & Safety Code Ann.

§ 481.112(b). Scott was also ordered to pay $534 in court costs, and although found

indigent for appeal, Scott was ordered to contribute to the cost of his appointed

appellate counsel.1 Scott does not challenge the merits of either his conviction or his

sentence. Instead, in two points, Scott argues that the trial court erred by determining

that he had the ability to pay all or part of the costs of his appointed appellate counsel

and that the $25 time payment fee assessed against him as court costs is facially

unconstitutional. The State did not file a brief. We will modify the judgment and

affirm the judgment as modified.

            I. CONTRIBUTION TO THE COST OF APPOINTED
                       APPELLATE COUNSEL

      In his first point, Scott argues that the trial court erred by determining that he

had the ability to pay all or part of the costs of his appointed appellate counsel. A trial

court has the authority to order the reimbursement of appointed attorney’s fees “[i]f

the judge determines that a defendant has financial resources that enable the

defendant to offset in part or in whole the costs of the legal services provided.” Tex.


      1
       The trial court found that Scott was not indigent for trial. It rendered the
order at issue thirty days after judgment.


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Code Crim. Proc. art. 26.05(g). The determination of a defendant’s ability to pay must

be made at the time of the judgment or order at issue. Wolfe v. State, 377 S.W.3d 141,

146 (Tex. App.—Amarillo 2012, no pet.); see Cates v. State, 402 S.W.3d 250, 252 (Tex.

Crim. App. 2013) (“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 record must reflect some factual basis to support the trial

court’s determination regarding the defendant’s ability to pay. Wolfe, 377 S.W.3d at

144. “[T]he 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.” Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). We

review the evidence in the light most favorable to the judgment when deciding

whether the record contains legally sufficient evidence to support these elements. Id.

at 557.

      After a defendant is found to be indigent, he is “presumed to remain indigent

unless there is a ‘material change’ in his financial status, and in the absence of any

indication in the record that his financial status has in fact changed, the evidence will

not support an imposition of attorney fees.” Wiley v. State, 410 S.W.3d 313, 317 (Tex.

Crim. App. 2013); see Tex. Code Crim. Proc. art. 26.04(p). When a trial court fails to

find that the defendant’s financial status has changed after initially finding the

defendant to be indigent, the record is insufficient and will not support an order to



                                           3
pay attorney’s fees arising from appointed counsel’s representation. Wiley, 410 S.W.3d

at 317.

       Here, in its July 25, 2019 “Order Determining Appointment of Counsel,” the

trial court found that Scott was entitled to the appointment of appellate counsel

because he was indigent. In that same order, the trial court also determined that Scott

had the “present financial resources and/or an ability to pay all or part of the cost of

legal services and related expenses” relating to the appointment of his appellate

counsel, and the trial court “ordered that [Scott] . . . contribute to the cost of the legal

services and related expenses” of his appointed appellate counsel. The only evidence

in the record pertaining to Scott’s financial resources and ability to pay his appointed

appellate counsel at the time the trial court entered its order was an affidavit of

indigency filed by Scott along with his application for appointed counsel. In that

uncontroverted affidavit of indigency, Scott averred that he was incarcerated,

unemployed, and had no assets.

       There is no evidence in the record that Scott had the financial resources and

ability to pay all or part of the costs of his appointed appellate counsel at the time the

trial court signed its July 25, 2019 “Order Determining Appointment of Counsel.”

Indeed, the trial court determined in that order that Scott was indigent. Accordingly,

we conclude that the evidence is insufficient to support a finding that Scott had the

financial resources and ability to pay costs associated with his appointed appellate



                                             4
counsel. See Tex. Code Crim. Proc. art. 26.04(p); Tex. Code Crim. Proc. art. 26.05(g);

Wiley, 410 S.W.3d at 317; Cates, 402 S.W.3d at 252; Mayer, 309 S.W.3d at 556.

      When insufficient evidence supports a trial court’s ordering of reimbursement

of attorney’s fees, the appropriate appellate remedy is to modify the trial court’s order

to delete the reimbursement of attorney’s fees.2 See Cates, 402 S.W.3d at 252. We thus

sustain Scott’s first point and modify the trial court’s July 25, 2019 “Order

Determining Appointment of Counsel” to delete the finding that Scott has financial

resources and/or an ability to pay all or part of the costs of the legal services and

related expenses of his appointed appellate counsel and delete the order that Scott is

required to contribute to the cost of the legal services and related expenses of his

appointed appellate counsel. See Argueta v. State, No. 02-18-00055-CR, 2019 WL

2429403, at *2 (Tex. App.—Fort Worth June 6, 2019, no pet.) (mem. op., not

designated for publication) (modifying judgment to delete court-appointed attorney’s

      2
        We note that no specific dollar amount has been assessed against Scott for his
appointed appellate counsel. Nevertheless, the trial court determined that Scott is
responsible for contributing to the costs of his appointed appellate counsel. Scott’s
point, therefore, is ripe for consideration. See Jones v. State, 428 S.W.3d 163, 172 n.2
(Tex. App.—Houston [1st Dist.] 2014, no pet.) (“The State contends that this issue is
not ripe for consideration because no specific dollar amount of attorney’s fees has
been assessed against appellant. Although the State is correct that the trial court has
not determined the precise amount of attorney’s fees that appellant should pay, it
determined in its written judgment that appellant is responsible for attorney’s fees and
ordered appellant to pay attorney’s fees. This issue, therefore, is ripe for
consideration by this Court.”); Ramirez v. State, 432 S.W.3d 373, 377 (Tex. App.—San
Antonio 2014, pet. ref’d) (holding trial court’s determination that indigent defendant
was to contribute to the cost of appointed counsel was ripe for review despite the fact
that amount of fees had yet to be determined).


                                           5
fees when “no factual basis exist[ed] in the record to support a determination that [the

defendant] could pay” the court-appointed attorney’s fees); West v. State, 474 S.W.3d

785, 795 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding trial court erred in

ordering reimbursement of court-appointed attorney’s fees where “the record

contain[ed] no evidence of appellant’s ability to pay for legal representation”).

                         II. THE TIME PAYMENT FEE

      In his second point, Scott argues that the $25 time payment fee assessed against

him as a court cost is facially unconstitutional. The authority for assessing the time

payment fee is contained in Section 133.103 of the Local Government Code. See Tex.

Loc. Gov’t Code Ann. § 133.103.         Section 133.103(a)(2) provides that a person

convicted of a felony must pay a fee of $25 if he “pays any part of a fine, court costs,

or restitution on or after the 31st day after the date on which a judgment is entered

assessing the fine, court costs, or restitution.” Id. § 133.103(a)(2). As we have

recently observed, “[u]nder the language of this provision, the $25 late-payment fee

can be assessed only if the convicted party pays any part of the fines, court costs, or

restitution assessed against him more than thirty days after the trial court entered the

judgment.” Tinajero v. State, No. 02-19-00040-CR, 2019 WL 5460675, at *2 (Tex.

App.—Fort Worth Oct. 24, 2019, no pet. h.) (mem. op., not designated for

publication) (emphasis in original) (citing Tex. Loc. Gov’t Code Ann. § 133.103(a)).

      Here, the trial court included the $25 time payment fee in the judgment it entered

“before the condition triggering the assessment of the [time payment fee]—late

                                            6
payment—could have occurred.”3 Id.; Prescott v. State, No. 02-17-00158-CR, 2019 WL

2635559, at *5 (Tex. App.—Fort Worth June 27, 2019, no pet.) (mem. op., not

designated for publication). The record therefore does not support the assessment of

the $25 time payment fee assessed against Scott. Accordingly, we sustain his second

point to the extent that we modify the trial court’s judgment, order to withdraw funds,

and the bill of costs to delete this fee.      See Tinajero, 2019 WL 5460675, at *2

(modifying judgment, order to withdraw funds, and bill of costs to delete time

payment fee); Prescott, 2019 WL 2635559, at *5 (modifying judgment to delete time

payment fee). Because we may not determine the constitutionality of a statute unless

that determination is absolutely necessary to decide the case, see Salinas v. State,

464 S.W.3d 363, 366 (Tex. Crim. App. 2015), we do not reach Scott’s constitutionality

argument.    See Prescott, 2019 WL 2635559, at *5 (declining to reach appellant’s

argument that the time payment fee is facially unconstitutional after modifying

judgment to delete time payment fee); see also Tex. R. App. P. 47.1.




      3
        We note that the bill of costs states that the “Time Payment Fee is not
applicable and shall be removed if the fine and court costs are paid in full prior to the
31[st] day after the date of Judgment.” Despite that language, the trial court’s
judgment included the $25 time payment fee in the total of assessed court costs, and
the trial court’s order to withdraw funds—rendered the same day as the trial court’s
judgment—likewise included the $25 time payment fee in the calculation of the funds
to be withdrawn from Scott’s inmate trust account.


                                           7
                                 III. CONCLUSION

      Having sustained Scott’s first point, we modify the trial court’s July 25, 2019

“Order Determining Appointment of Counsel” to delete the finding that Scott has

financial resources and/or an ability to pay all or part of the costs of the legal services

and related expenses of his appointed appellate counsel and delete the order that Scott

is required to contribute to the cost of the legal services and related expenses of his

appointed appellate counsel. Having sustained Scott’s second point without reaching

his constitutionality argument, we modify the trial court’s judgment, order to

withdraw funds, and bill of costs to delete the $25 time payment fee. We affirm the

trial court’s judgment as modified.


                                                       /s/ Lee Gabriel

                                                       Lee Gabriel
                                                       Justice

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

Delivered: December 12, 2019




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