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, appeal s from an adjudication of guilt of the offense of aggravated assault with a deadly weapon. 1 Through three iss ues, 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.

1 See T EX

. P ENAL C ODE A NN . § 22.02(a)(2)(Vernon Supp. 2009).2 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 agr eement. As part of the plea agreement, no finding of guilt was entered against appellant, and he was placed on deferred adjudication community supervisi on 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 A ugust 11, 2008, continuing appellant on community supervision but modifying and ex tending 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 resu lted in the judgment from which appellant appeals. At the hearing on the State’s moti on, on February 26, 20 09, appellant pleaded true to the allegations specifyi ng the violations of community supervision alleged by the State. The trial court sentenc ed appellant to serve six years in the Institutional Division of the Texas Department of Criminal Justice. The essence of appellant’s issues conc erns the relationship between the written judgment and the bill of cost s ubmitted 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 ju dgment or otherwise of any effect. Second, appellant asks whether, if the b ill of cost has any effect, t here is sufficient evidence in the record to support an order for appellant to pay court-appointed attorney’s fees.3 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 t hat, absent incorporati on by reference in the judgment, 2 the clerk’s bill of costs is of no fo rce or effect. The judgment in question orders appellant to pay “all fi nes, court costs, and restituti on 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 re flecting 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 opini on, all the costs listed on the cl erk’s bill of costs appear to be among those listed in sect ion 102.021 or section 102.041 of the Government Code. T EX

. G OV ’ T C ODE A NN

. §§ 102.021, 102.041 (Vernon 2005 and Supp. 2009). The obligation of a person to pay su ch costs, and the obligation of the court clerk to collect them, is established by stat ute, not court order. See , e.g. , T EX

. C ODE C RIM

. P ROC

. A NN

. art. 102.005 (Vernon 2005) (providing, as to fee for services of the clerk of the court, that a defendant convicted in th e court “shall pay” the fee); T EX

. G OV ’ T C ODE A NN

. § 102.021 (providing “clerk of a district court shall collect fees and costs on conviction of a defendant”). As stated by the Texas C ourt of Criminal Appeals, t hose fees are an assessment against a convicted defendant, not as an additi onal penalty for the crime committed, but

2 Appellant contrasts the j udgment 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 cost s in this proceeding incurred, as set out in the Bill of Costs attached hereto. . . .”4 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 pronouncem ent of sentence as a preconditi on 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-ma ndated obligations, resulting from his conviction, the clerk’s certified bill of costs imposes an ob ligation 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 ov errule appellant’s first issue.
Collection of Costs Appellant’s remaining two c onditional 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 collec tion, 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 appe llant’s issues raise matters relating to the ability to collect costs, we do not address such matte rs; they are properly a matter for a civil proceeding related to the collection of cost s under the procedure out lined by the Texas Government Code. See T EX

. G OV ’ T C ODE A NN . § 501.014(e) (Vernon Supp. 2009). In the record before us, there is no order fr om the convicting cour t authorizing withdrawal5 of funds from appellant’s inmate trust account. 3 In other words, no effort has been made to collect these costs. Consequently, any analysis concer ning 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 deci de and pronounce a judgment and carry it into effect between persons and par ties who bring a case before it for a decision.” Garrett v. State , 749 S.W.2d 784, 803 (Tex.Crim.Ap p. 1988) (op. on reh’g). Judicial power does not include the pow er to issue advisory opinions. Id. The underlying case between t he parties is not one that involv es questions of collection of court costs. Any attempt to address issues c oncerning 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 co llection and outside the purview of a direct appeal of a criminal conviction. See Harrell , 286 S.W.3d at 318. That sa id, we do not address the substance of appellant’s second and third condi tional 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 re sult in an advisory opinion); see also T EX

. R. A PP

. P. 47.1 (requiring appellate court to address “eve ry issue raised and necessary to final disposition of the appeal”).

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 c ourt to pay items included in a prioritized statutory list. T EX

. G OV ’ T C ODE A NN . § 501.014(e).6 Conclusion Having overruled appellant’s first issu e and having determined that we may not address the remaining issues conc erning the collection of cour t costs, we affirm the trial court’s judgment.

Mackey K. Hancock Justice Pirtle, J., concurring.

Publish.