IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1479-10

ALTON ARMSTRONG, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE SEVENTH COURT OF APPEALS

POTTER COUNTY

MEYERS, J., delivered the opinion for a unanimous Court.

O P I N I O N

Appellant was charged with aggravated assault with a deadly weapon. He entered

a negotiated plea agreement that placed him on deferred-adjudication community

supervision for two years, which was later extended for an additional two years.

Subsequently, the trial court adjudicated guilt and assessed a sentence of six years’

imprisonment. On appeal, Appellant challenged the clerk’s bill of costs. The Amarillo

Court of Appeals affirmed the trial court’s judgment, declining to address Appellant’s
Armstrong - 2

insufficient evidence argument because it involved a civil law matter. Armstrong v. State,

320 S.W.3d 479 (Tex. App.—Amarillo 2010) (memo. op.). We granted Appellant’s

petition for discretionary review, and we will reverse the judgment of the court of

appeals.

I. FACTS

On February 22, 2005, the day after Appellant committed aggravated assault with a

knife, Appellant executed a financial request for a court-appointed attorney. The trial

court found that Appellant was indigent and appointed representation.

1

After indictment, Appellant entered a negotiated, written plea agreement. The

2

trial court imposed deferred adjudication community supervision for two years. The court

ordered Appellant to pay assorted fees as conditions of probation, but it did not

incorporate by reference any fees that the district clerk might assess. On the day of the

plea agreement, Appellant’s counsel filed an attorney fee expense claim for $900, which

was ordered paid, and two days later, the clerk placed in the record a bill of costs, stating

3

that Appellant owed a total of $1,123, including $900 for attorney fees. Appellant did not

The order stated that Appellant “is without counsel and is too poor to employ counsel.” 1

The indictment alleged that Appellant did “intentionally or knowingly cause bodily 2

injury to [the victim] by stabbing and cutting [the victim] with a knife, and the defendant did then

and there use or exhibit a deadly weapon, to-wit: a knife, that in the manner of its use and

intended use was capable fo causing death and serious bodily injuring, during the commission of

said assault.” It contained an enhancement paragraph for a prior conviction of delivery of a

controlled substance.

For this and subsequent fee expense claims, the trial judge signed below the language

3

“Approval and Ordered paid from the General Fund.”
Armstrong - 3

contest any of the fees.

Over the next two years, the trial court signed two supplemental orders, each

amending the conditions of probation and extending Appellant’s probation. And, in both

orders, Appellant reaffirmed that he would pay “all court costs including the court

appointed attorney fee.” Then, in April 2008, the State filed a motion to proceed to

adjudication, alleging that Appellant violated a condition of his community supervision.

4

Appellant completed a second financial request for a court-appointed attorney, and the

trial judge again appointed representation. Subsequently, Appellant signed another

agreement for continuation and modification, and a court order extended his community

supervision for one more year. A second fee-expense claim for $500 in attorney fees was

submitted and ordered paid as a condition of Appellant’s community supervision. The

trial judge waived Appellant’s probation fee and entered a supplemental order amending

the conditions, which included an agreement to pay all court costs and court-appointed

attorney fees. Appellant did not challenge the factual basis of any fees to which he

agreed and was ordered to pay.

Seven months after its original motion, the State filed a second motion to

adjudicate, alleging that Appellant again violated a condition of his community

supervision. Appellant executed a third request for court-appointed counsel, and the trial

court appointed representation. At the hearing on the motion to proceed, Appellant pled

Applicant failed to successfully complete treatment through the Substance Abuse Felony 4

Treatment Program.
Armstrong - 4

“true” to all allegations specifying violations of his community supervision as alleged by

the State. The trial judge found Appellant guilty and sentenced him to six years’

incarceration in the Department of Criminal Justice-Institutional Division. No mention

5

was made of attorney fees at the hearing, but on the same day, the trial judge approved an

additional payment of $500 for attorney’s fees.

Shortly thereafter, the Judgment Adjudicating Guilt was signed. Although the

judgment ordered Appellant to pay “any remaining unpaid fines, court costs, and

restitution as ordered by the Court above,” the space for court costs was left blank with no

amount specified. And, on the following day, the Potter County District Clerk prepared a

second bill of costs, which totaled $2,258 and included $1,900 in attorney fees. The

district court appointed counsel for appeal.

II. AMARILLO COURT OF APPEALS

On appeal, Appellant contested the costs assessed against him. The Amarillo

Court of Appeals affirmed the judgment of the trial court. Armstrong, 320 S.W.3d 479.

First, the court of appeals rejected Appellant’s claim that, “absent incorporation by

reference in the judgment, the clerk’s bill of costs is of no force or effect.” Id. at 480. It

noted that the obligation to pay court costs is mandated by statute, and those fees are nonpunitive in nature. See TEX. GOV’T CODE §§ 102.021, 102.041. Thus, “the clerk’s

Appellant initially requested to be kept on probation, claiming that he would report, 5

make payments, and go to the required meetings. The State recommended “special needs SafeP” as an inpatient. The trial judge allowed Appellant to decide between inpatient treatment with

continued probation or incarceration, and Appellant chose the latter.
Armstrong - 5

certified bill of costs imposes an obligation upon him to pay the costs, again other than

attorney’s fees, whether or not the bill is incorporated by reference into the judgment.”

Armstrong, 320 S.W.3d at 481.

Regarding the remaining issues concerning attorney fees, the court of appeals

6

declined to address those matters because Appellant’s contentions concerned the

collection, rather than the assessment, of costs. Id. at 481-82. The court of appeals said

that they are civil matters, which are properly the subject of a lawsuit regarding collection

of costs, so the matters would be outside the purview of a direct appeal from a criminal

conviction. And since no effort had yet been made to collect the costs, any analysis by

the court of appeals would be advisory.

Justice Pirtle concurred, writing to address Appellant’s issues to the extent that

they may be construed as raising issues unrelated to the collection of costs. Id. at 482

(Pirtle, J., concurring). He began by noting that the phrase “assessment of costs” can

mean the judicial pronouncement of an obligation to pay costs as well as the

administrative process of collecting costs. Id. Justice Pirtle agreed that a certified bill of

costs need not be incorporated into the judgment to be effective because “court costs are

imposed as a matter of legislative directive.” Id. at 484. Additionally, Justice Pirtle

Appellant’s second and third issues were as follows: “Second, appellant asks whether, if 6

the bill of cost has any effect, there is sufficient evidence in the record to support an order for

appellant to pay court-appointed attorney’s fees. [Third], 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.” Armstrong, 320 S.W.3d at 480.
Armstrong - 6

contended that attorneys fees are reimbursable only if there is a judicial determination of

the amount and the defendant’s ability to pay. Here, since the judgment did not

pronounce that Appellant was required to pay attorneys fees, there was no error in the

judgment. Justice Pirtle highlighted that the Amarillo Court of Appeals is being asked to

review bills of costs “[w]ith increasing frequency.” Id. at 483.

We granted Appellant’s petition for discretionary review challenging the court of

appeals’s characterization of his attorney fees issues as civil law matters. Specifically,

Appellant’s ground for review stated the following: Under the Code of Criminal

Procedure a clerk’s bill of costs authorizes law enforcement officials to collect its

demands. Does a claim of insufficient evidence to support a requirement that the

defendant reimburse the county for attorney fees, even if mandated only by such a bill of

costs, present a criminal law matter?

III. ARGUMENTS OF THE PARTIES

A. Appellant’s Argument

Appellant argues that the question raised, whether there is sufficient evidence to

support an order to pay attorney fees in a criminal prosecution, is a criminal law matter.

Appellant emphasizes that he challenges only the lack of evidence to support the

fees, and he claims that the court of appeals confused the legitimacy and enforcement of

7

attorney fees with the means of their collection. Citing Mayer v. State, 309 S.W.3d 552

He acknowledges that the means of collection is a civil matter. See TEX. GOV’T CODE §

7

501.014(e); Harrell v. State, 286 S.W.3d 315, 319 (Tex. 2008).
Armstrong - 7

(Tex. Crim App. 2010), Appellant argues that the fees’ legitimacy and their enforcement

are both criminal law matters. He points out that, per the Texas Code of Criminal

Procedure, a bill of costs’ existence makes it “payable” and proper to be collected.

8

Accordingly, because relief is sought pursuant to several criminal statutes, the legitimacy

of fees charged by a district clerk is a criminal law matter.

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Further, Appellant contends that insufficient evidence in a criminal case must be

raised, if at all, in a direct appeal. He also notes that the court of appeals should be able

to consider the issue presented because its jurisdiction is not restricted, except for in

mandamus actions; the court of appeals has jurisdiction to decide “all of the issues which

arise as a result of the initial action.” See Curry v. Wilson, 853 S.W.2d 40, 44 (Tex. Crim.

App. 1993).

Finally, Appellant maintains that the question raised should be addressed as a

matter of criminal appeal for policy reasons. Doing so would preserve judicial resources

by keeping the lines of direct appeal open, instead of creating a second (civil) appeal. It

would also assure Appellant of the proper remedy because, according to Appellant, there

is no guarantee that the Texas Supreme Court would take jurisdiction of this case, and the

court of appeals will not decide the case if the amount in controversy is less than $250.

Appellant cites, e.g., Sections 103.001, 103.002, and 103.003(a) of the Texas Code of 8

Criminal Procedure.

Appellant maintains that the distinction between the bill of costs and a judicial order 9

does not affect the character of an insufficient evidence issue as a criminal law matter.
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B. State’s Argument

The State responds that the Amarillo Court of Appeals correctly upheld the

criminal judgment on direct appeal, and because the substance of Appellant’s issues

concerns the collection of costs, addressing it would result in an advisory opinion.

The State begins by distinguishing Mayer and noting that, unlike that case which

involved a direct appeal from a jury trial, this case involves the revocation of deferredadjudication community supervision. The State contends that the negotiated plea was a

contractual agreement from which Appellant benefitted; the payment of attorney fees was

a condition of his probation and, thus, a contractual obligation by which he was bound.

Therefore, because Appellant affirmatively accepted and waived any objections to the

conditions, he cannot complain about them for the first time on appeal. See Speth v.

State, 6 S.W.3d 530 (Tex. Crim. App. 1999); Reyes v. State, 324 S.W.3d 865 (Tex.

App.—Amarillo 2010, no pet.). In addition, according to the State, Appellant should not

be pursuing a direct appeal because other remedies are available to address any question

about the correctness of the district clerk’s bill of costs. For example, Appellant may

correct costs by filing a motion in the trial court and may address any collection dispute in

a civil proceeding.

Finally, the State argues that a contest to the district clerk’s bill of costs is a matter

that should be reserved for a collection dispute in a civil proceeding. It notes that the

final written criminal judgment reflects no additional order for any reimbursement of
Armstrong - 9

court appointed attorney’s fees. Thus, the State contends that there is no mandate for

Appellant to pay the attorney fees from the adjudication—a clerk’s bill of costs, without

more, does not constitute the necessary judicial determination regarding court appointed

attorney’s fees. Consequently, the State concludes that, apart from Appellant’s

contractual agreement, there is no court order for him to pay appointed attorney fees from

the adjudication forward under criminal or civil law.

IV. CASELAW

We “necessarily have the power to decide what constitutes a criminal law matter.”

Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 585 n.3 (Tex. Crim. App.

1993). Although we have not issued a definitive statement of what constitutes a “criminal

law matter,” the term “encompass[es], at a minimum, all legal issues arising directly out

of a criminal prosecution.” Id. at 585. Importantly, we have held that “[d]isputes which

10

arise over the enforcement of statutes governed by the Texas Code of Criminal Procedure,

and which arise as a result of or incident to a criminal prosecution, are criminal law

matters.” Curry v. Wilson, 853 S.W.2d 40, 43 (Tex. Crim. App. 1993).

11

An issue does not cease to be a criminal law matter merely because elements of

In Smith v. Flack, 728 S.W.2d 784, 788 (Tex. Crim. App. 1987), we held that the 10

constitution grants us the power to issue writs of mandamus when “criminal law is the subject of

the litigation,” but we have since indicated that that assertion was not intended to be a definitive

statement of the meaning of criminal law matters. See, e.g., Langford, 847 S.W.2d at 585.

“Our decision holds that a trial court has not lost jurisdiction over a criminal law matter 11

until all of the issues . . . attendant to that criminal law matter are resolved.” Curry, 853 S.W.2d

at 45 n.3.
Armstrong - 10

civil law must be addressed to resolve the issue. That is, “[a]lthough civil and criminal

law matters may occasionally overlap, when a matter is essentially criminal, the presence

of civil law issues will not remove the matter from our jurisdiction.” Holmes, 885

S.W.2d 389 (Tex. Crim. App. 1994). The nature of the originally issued order determines

whether a subsequent enforcement proceeding involves a criminal law matter, so

“enforcement of an order issued pursuant to a criminal statute is a criminal law matter as

much as the issuance of the order itself, even if it requires this Court to examine civil

laws in the process.” Smith v. Flack, 728 S.W.2d 784, 788-80 (Tex. Crim. App. 1987).

V. DISCUSSION

A clerk’s bill of costs of the criminal conviction is permitted pursuant to Article

103.001 of the Texas Code of Criminal Procedure, and its issuance makes the included

costs payable under the same statute. Enforcement of a bill of costs is allowed under

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Texas Code of Criminal Procedure Article 103.003, et seq. Fees for court-appointed

representation are often included in a bill of costs. Under Article 26.05(g) of the Texas

Code of Criminal Procedure, a trial court has the authority to order the reimbursement of

court-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, 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

Article 103.001 states that “[a] cost is not payable by the person charged with the cost 12

until a written bill is produced or is ready to be produced, containing the items of cost, signed by

the officer who charged the cost or the officer who is entitled to receive payment of the cost.”
Armstrong - 11

is able to pay.

“[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, 309 S.W.3d 552, 556.

Here, the judgment adjudicating Appellant guilty left blank the spaces for court

costs and restitution, but it stated that Appellant should pay any court costs “as ordered by

the Court above.” Subsequently, the clerk’s office issued a bill of costs, in which it stated

that Appellant owed $1900 in attorney fees and $358 in miscellaneous court costs. It is

that bill of costs which Appellant contests.

Appellant contends that there is insufficient evidence to support the attorney fees

as set forth in the clerk’s bill of costs. Thus, Appellant challenges the assessment of costs

mandated by the clerk’s bill of costs, which is issued pursuant to Texas Code of Criminal

Procedure Article 103.001. And in arguing insufficient evidence, he relies on the critical

requirements set forth in Texas Code of Criminal Procedure Article 26.05(g) (i.e., that he

does not have the financial resources to offset, in whole or part, the costs of the legal

services provided). Because Appellant’s claim arises over the enforcement of statutes

governed by the Texas Code of Criminal Procedure, the pertinent litigation is a criminal

law matter.

13

When addressing Appellant’s sufficiency argument on remand, the court of appeals 13

should consider Texas Code of Criminal Procedure Article 26.04(p) and our decision in Mayer v.

State, 309 S.W.3d 552 (Tex. Crim. App. 2010).
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The Amarillo Court of Appeal failed to consider the merits of Appellant’s claims

because it believed that Appellant was challenging the collection of costs, a civil law

matter. But the court misconstrued Appellant’s claim. We do not debate that the means

of collection of attorney fees—such as a withdrawal order entered into pursuant to

Section 501.014(e) of the Texas Government Code—is a civil law matter. See Harrell v.

State, 286 S.W.3d 315 (Tex. 2009); Johnson v. Tenth Judicial District Court of Appeals

at Waco, 280 S.W.3d 866 (Tex. Crim. App. 2008). As the Texas Supreme Court

explained in Harrell, withdrawal orders

may be incidental to criminal prosecutions and a mechanism to enforce criminal

judgments, but they do not arise over enforcement of a statute governed by the

Code of Criminal Procedure. Nor is criminal law the focus of this action. True, a

withdrawal order does seize payment for costs previously taxed in a criminal case,

but the criminal case is over.

Harrell, 286 S.W.3d at 318. However, in contrast to that scenario, Appellant does not

contest any withdrawal order issued by the trial court pursuant to the Texas Government

Code or any other collection effort. Instead, Appellant contests the assessment of the

costs and the sufficiency of the evidence to support the attorney fees mandated by the bill

of costs. As discussed previously, his claim arises over the enforcement of statutes

governed by the Texas Code of Criminal Procedure, thereby making it a criminal law

matter.

Although not part of the question upon which we granted review, we feel that it

would be helpful to address whether the attorney fees in a certified bill of costs are
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effective if not orally pronounced or incorporated by reference into the judgment.

Because attorney fees are more analogous to court costs than to fines, we hold that they

are effective under such facts.

Court costs, as reflected in a certified bill of costs, need neither be orally

pronounced nor incorporated by reference in the judgment to be effective. See Weir v.

State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009). This is because court costs do not

“alter the range of punishment to which the defendant is subject, or the number of years

assessed” and, thus, are not part of the sentence. Id. at 367. Instead, court costs are

compensatory in nature; that is, they are “a nonpunitive recoupment of the costs of

judicial resources expended in connection with the trial of the case.” Id. at 366

(quotations omitted). In contrast, fines generally must be orally pronounced in the

14

defendant’s presence. TEX. CODE CRIM. PROC. Art. 42.03 § 1(a); Taylor v. State, 131

S.W.3d 497, 500 (Tex. Crim. App. 2004). Fines are punitive, and they are intended to be

part of the convicted defendant’s sentence as they are imposed pursuant to Chapter 12 of

the Texas Penal Code, which is entitled “Punishments.” See Weir, 278 S.W.3d at 366.

Like court costs and unlike fines, attorney fees are compensatory and non-punitive.

They serve as reimbursement for the legal services provided by appointed counsel. And

the trial court does not impose attorney fees as part of a convicted defendant’s

sentence—Texas Code of Criminal Procedure Article 26.05(g) applies whether or not the

We noted that the fact that only convicted defendants need pay court costs “does not by 14

itself indicate that these costs were intended . . . to be punitive and part of the sentence.”
Armstrong - 14

defendant is convicted, and the directive to pay attorney fees does not change the range of

punishment assessed. Because attorney fees are akin to court costs, we apply the same

rules to attorney fees that we apply to court costs. Accordingly, attorney fees need not be

orally pronounced to be effective. See Weir, 278 S.W.3d at 367 (holding that the court

costs “did not have to be included in the oral pronouncement of sentence” to be

enforced). Further, attorney fees as set forth in a certified bill of costs are effective

whether or not incorporated by reference in the written judgment.

15

VI. CONCLUSION

The court of appeals erred in holding that a claim of insufficient evidence to

support a requirement that the defendant reimburse the county for attorney fees, as

mandated by a clerk’s bill of costs, did not present a criminal law matter. The court of

appeals should have addressed Appellant’s claim. The judgment of the court of appeals is

reversed in part, and the case is remanded for consideration of Appellant’s remaining

points of error in accordance with the rules set forth today.

Meyers, J.

Delivered: June 22, 2011

Publish

The court of appeals correctly noted that “an effective bill of costs is not the functional 15

equivalent of a correct bill of costs.” Armstrong, 320 S.W.3d at 484.