                              NUMBER 13-07-243-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


DERRICK D. HAMPTON,                                                         Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                 On appeal from the Criminal District Court
                       of Jefferson County, Texas.


                         MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
               Memorandum Opinion by Justice Yañez

      Appellant, Derrick D. Hampton, appeals from the trial court’s judgment ordering him

to pay $550 in court costs and $4,630 in “Administrative Financial Obligations.” We affirm

the judgment as modified.

                                      BACKGROUND
       On October 2, 2006, appellant was adjudicated guilty of forgery.1 The trial court

assessed punishment at two years’ imprisonment, probated for four years, and a $750 fine.

On March 2, 2007, the trial court revoked appellant’s probation, and soon after rendered

a judgment nunc pro tunc, which clarified the court costs and “Administrative Financial

Obligations” referred to above. Through nine issues on appeal, appellant argues that the

fees imposed cannot stand.

                                                    DISCUSSION

       The record in this case contains a “Balance Sheet,” which demonstrates how the

trial court arrived at $4,630 in Administrative Financial Obligations. The Balance Sheet

reveals that the administrative fees represent the total cost of six fees imposed on

appellant. Among these six fees is an “Attorney Fee” for $600 and a “Supervision Fee” for

$2,880.

       In his first issue, appellant argues that the trial court abused its discretion in

imposing a $2,880 supervision fee. Article 42.12 of the code of criminal procedure states

the following: “[A] judge granting community supervision shall fix a fee of not less than $25

and not more than $60 per month to be paid during the period of community supervision

by the defendant to the court of original jurisdiction . . . .”2 In the instant case, appellant

was ordered to pay $60 per month while on probation. Prior to his revocation, appellant

was to be on probation for four years; at $60 per month, appellant would have paid $2,800

in fees over the course of those four years. Accordingly, it is clear that the trial court’s



       1
           T EX . P EN AL C OD E A N N . § 32.21 (Vernon Supp. 2008)

       2
           T EX . C OD E C R IM . P R O C . art. 42.12 § 19 (Vernon Supp. 2008).

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judgment charges appellant for the combined fees he would have owed had he remained

on community supervision for the full four years.

      The State admits it “can find no authority under which the trial court may charge

Appellant with fees for services which would have been rendered to him had his probation

not been revoked.” The State asserts that the supervision fee should be set at $300, which

accounts for the five months that transpired between the date appellant was placed on

probation and the date probation was revoked (October 2, 2006 to March 2, 2007). The

State’s position finds support in article 42.12, which states: “The judge shall enter the

amount of restitution or reparation owed by the defendant on the date of revocation in the

judgment in the case.”3

      Appellant, however, argues that the amount should be less than $300. Appellant

points out that the record shows he was not released from the State’s custody until October

4, 2006, even though the trial court pronounced his probation two days earlier. Moreover,

he points out that the record shows he returned to the State’s custody on December 15,

2006, where he remained until his probation was revoked on March 2, 2007. Appellant

thus asserts that his supervision fee should reflect the amount owed from October 4 to

December 15, 2006—the total period of time in which he was not in the State’s custody.

Appellant supports his position through article 103.002 of the code of criminal procedure,

which states: “An officer may not impose a cost for a service not performed . . . .”4 We

agree with appellant, and find that the trial court abused its discretion by imposing a



      3
          Id. § 23 (em phasis added).

      4
          Id. art. 103.002 (Vernon 2006).

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supervision fee in excess of the amount owed for a period of community supervision lasting

from October 4 to December 15, 2006. Appellant’s first issue is sustained.

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

imposing a $600 attorney fee because he is indigent and there is no evidence in the record

demonstrating his ability to pay. Under article 26.05(g) of the Texas Code of Criminal

Procedure, the trial court has authority to order reimbursement of appointed attorney fees

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.5 However, the record before

us does not contain any such determination or finding by the trial court that appellant had

any financial resources or was “able to pay” the appointed attorney fees. Without evidence

to demonstrate appellant’s financial resources to offset the costs of the legal services, the

trial court erred in ordering reimbursement of appointed attorney fees.6 Appellant’s eighth

issue is sustained.

        To the extent that any of appellant’s seven remaining issues request more relief

than the above findings provide, we overrule those issues. We find nothing problematic

with the other fees imposed by the judgment. The trial court did not need to pronounce

those fees as part of appellant’s sentence because they are not punishment; rather, the

fees are either authorized by statute or constitute a court cost.7 We also find nothing

problematic with the trial court’s judgment nunc pro tunc, and thus decline to question the


        5
            See id. art. 26.05(g) (Vernon Supp. 2008).

        6
         See id.; see Mayer v. State, No. 07-07-0363-CR, 2008 Tex. App. LEXIS 9351, *8-9 (Tex.
App.–Am arillo Dec. 16, 2008, no pet.).

        7
        See generally Revia v. State, No. 09-07-068-CR, 2007 Tex. App. LEXIS 6965, *5-6 (Tex.
App.–Beaum ont Aug. 5, 2007, no pet.) (discussing the sam e or sim ilar fees as those found in this case).

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validity of the remaining fees on this basis.

                                                    CONCLUSION

          Appellant was on community supervision for approximately two months and ten

days. We calculate appellant’s total supervision fee for this time at $140.8 This amount

is $2,740 less than the supervision fee imposed by the trial court. When we subtract this

difference from the $4,630 in Administrative Financial Obligations, we arrive at a total of

$1,890. When we subtract from this total the $600 in appointed attorney fees that were

improperly imposed, we get a total of $1,290 in Administrative Financial Obligations.

          We thus modify the trial court’s judgment to reflect an Administrative Financial

Obligation of $1,290.9 The judgment is affirmed as modified.




                                                                LINDA REYNA YAÑEZ,
                                                                Justice




Do not publish. TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and filed
this the 26th day of February, 2009.




          8
         W e have assessed a $60 fee for each of the two m onths, and a $20 fee for the tim e rem aining
(approxim ately ten days). From these assessm ents, we calculated the total supervision fee at $140.

          9
              See T EX . R. A PP . P. 43.2(b); Asberry v. State, 813 S.W .2d 526, 529-30 (Tex. App.–Dallas 1991, pet.
ref’d).

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