Opinion issued March 6, 2014




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                              ————————————
                               NO. 01-13-00458-CR
                             ———————————
                   WILLIAM SOLOMON LEWIS, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 239th District Court
                           Brazoria County, Texas
                         Trial Court Case No. 59246


                                   OPINION

      Appellant, William Solomon Lewis, appeals the trial court’s denial of his

motion to correct costs. In one issue, appellant argues the trial court abused its

discretion by failing to hold a hearing on his claim that the attorney’s fees the trial
court had ordered him to pay could not be assessed as costs because the basis for

the fees had been falsified.

       We affirm.

                                   Background

       Appellant was charged by indictment with retaliation 1 in March 2009. The

trial court determined appellant was indigent and appointed counsel. The trial

court later reconsidered appellant’s indigence. On July 2, 2009, the trial court

determined that a material change in appellant’s financial circumstances had

occurred and ordered appellant’s mother, as power of attorney for appellant, to

deposit $20,000 in the registry of the court. Appellant’s mother complied.

       Appellant’s appointed attorney filed a motion to withdraw in August 2009,

stating appellant wanted to represent himself pro se. The trial court granted the

motion. The attorney then submitted a voucher identifying the attorney’s fees

($8,555) and expenses ($39) she had incurred in the case. On August 31, 2009, the

trial court ordered $8,000 to be paid to the attorney from the money in the court

registry.




1
       See TEX. PENAL CODE ANN. § 36.06(a)(1)(A) (Vernon 2011).
                                         2
      On August 23, 2010, appellant filed a notice of appeal concerning the

August 31, 2009 order. We determined that we lacked jurisdiction because there

was no timely order from which appellant could appeal.2

      During the pendency of that appeal, the State filed a motion to dismiss the

action against appellant. The trial court granted that motion on November 29,

2011. On December 18, 2012, appellant filed a motion for the correction of costs,

arguing the fees assessed in the August 31 order were based on falsified records.

Appellant argues on appeal that he also filed the motion on October 19, 2012, but

the motion was improperly rejected by the district clerk. On May 9, 2013, the trial

court denied appellant’s motion for correction of costs. Appellant timely filed his

notice of appeal.

                         Hearing on Correction of Costs

      In his sole issue, appellant argues the trial court abused its discretion by

failing to hold a hearing on his claim that the attorney’s fees the trial court had

ordered him to pay could not be assessed as costs because the basis for the fees had

been falsified. Appellant relies on article 26.05 of the Texas Code of Criminal

Procedure as authority for his argument that the attorneys’ fees the trial court

ordered to be paid constitute court costs. See TEX. CODE CRIM. PROC. ANN.

art. 26.05(g) (Vernon Supp. 2013). He further argues article 103.008 of the Texas

2
      Lewis v. State, Nos. 01-10-00761-CR, 01-10-00762-CR, 2012 WL 2453726, at *2
      (Tex. App.—Houston [1st Dist.] June 28, 2012, no pet.).
                                         3
Code of Criminal Procedure authorized him to challenge the order for payment of

attorney’s fees. See TEX. CODE CRIM. PROC. ANN. art. 103.008 (Vernon 2006).

We hold that, according to the plain language of article 26.05, the August 31, 2009

order did not constitute an assessment of costs and, accordingly, article 103.008

did not authorize appellant to challenge the order a year after the final judgment.

Accordingly, the trial court did not abuse its discretion by failing to hold a hearing

on his motion.

A.    Standard of Review

      “Statutory interpretation is a question of law that we review de novo.” Bays

v. State, 396 S.W.3d 580, 584 (Tex. Crim. App. 2013) (citing Nguyen v. State, 359

S.W.3d 636, 641 (Tex. Crim. App. 2012)). In interpreting statutes, we seek to

effectuate the Legislature’s collective intent and presume that the Legislature

intended for the entire statutory scheme to be effective. See TEX. GOV’T CODE

ANN. § 311.021 (Vernon 2013); Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim.

App. 1991). The plain meaning of a statute is determined by construing the literal

text of the statute according to the rules of grammar and common usage and

presuming that every word was meant to serve a discrete purpose that should be

given effect. Baird v. State, 398 S.W.3d 220, 228 (Tex. Crim. App. 2013). If the

language is unambiguous, our analysis ends because the Legislature must be




                                          4
understood to mean what it has expressed, and it is not for the courts to add to or

subtract from such a statute. Boykin, 818 S.W.2d at 785.

B.    Analysis

      Article 103.008 provides, “On the filing of a motion by a defendant not later

than one year after the date of the final disposition of a case in which costs were

imposed, the court in which the case is pending or was last pending shall correct

any error in the costs.” TEX. CODE CRIM. PROC. ANN. art. 103.008(a). The statute

specifically concerns correcting errors in court costs. Id. Accordingly, if the order

to pay attorney’s fees does not constitute a court cost, appellant cannot rely on

article 103.008 to challenge the order. See id.

      Article 26.05 establishes the mechanism for a court-appointed attorney for

an indigent defendant to be reimbursed for incurred attorney’s fees and expenses.

See id. art. 26.05. Subsection (f) provides that all payments under the article that

are paid out of the general fund of the applicable county “may be included as costs

of court.” Id. art. 26.05(f). Subsection (g) provides,

      If the court determines that a defendant has financial resources that
      enable him to offset in part or in whole the costs of the legal services
      provided, including any expenses and costs, the court shall order the
      defendant to pay during the pendency of the charges or, if convicted,
      as court costs the amount that it finds the defendant is able to pay.

Id. art. 26.05(g) (emphasis added).




                                          5
      The costs were not paid out by Brazoria County. Accordingly, the order to

pay attorney’s fees could not be assessed as a court cost under authority of

subsection (f). See id. art. 26.05(f). The plain language of subsection (g) draws a

clear distinction between an order to pay fees during the pendency of the charges

and an order to pay fees as court costs. See id. art. 26.05(g); see also Baird, 398

S.W.3d at 228 (holding statutes are interpreted according to rules of grammar and

assuming every word was meant to serve a discrete purpose). Under the statute,

the order to pay fees renders the fees as court costs only if the order issues after a

defendant has been convicted. TEX. CODE CRIM. PROC. ANN. art. 26.05(g).

      The trial court’s order for appellant’s attorney’s fees to be paid from the

money in the court registry was issued during the pendency of the charges against

him. Those charges were dismissed and appellant was not convicted of those

charges. Accordingly, the fees cannot be characterized as court costs. See id.

Because the fees are not court costs, appellant cannot use article 103.008 to

challenge them one year after the final disposition of his case. We hold, then, that

appellant did not have a right to a hearing for his 103.008 motion based on the

grounds presented in the motion.

      Any challenge to the order should have been raised on direct appeal from the

final judgment. See Ex Parte Knight, 401 S.W.3d 60, 66 (Tex. Crim. App. 2013)

(holding order requiring payment of attorney’s fees can be challenged on direct


                                          6
appeal even though order is not part of defendant’s sentence). Appellant had 30

days from the date of the dismissal of the charges against him to initiate a direct

appeal over the August 31 order. See TEX. R. APP. P. 26.2(a) (requiring notice of

appeal to be filed within 30 days of entry of appealable order). The charges

against him were dismissed in the underlying case on November 29, 2011.

Accordingly, appellant’s deadline to appeal the August 31 order expired after

December 29, 2011.

      We overrule appellant’s sole issue.

                                    Conclusion

      We affirm the order of the trial court denying appellant’s motion for

correction of costs.




                                             Laura Carter Higley
                                             Justice

Panel consists of Justices Jennings, Higley, and Sharp.

Publish. TEX. R. APP. P. 47.2(b).




                                         7
