Ex parte Gonzales

• Decision Date: 12 May 1997
• Docket Number: No. 72,606,72,606
• Citation: 945 S.W.2d 830
• Parties: Ex Parte Mirlo Luana GONZALES, Applicant.
• Court: Texas Court of Criminal Appeals

Page 830

945 S.W.2d 830

Ex Parte Mirlo Luana GONZALES, Applicant.

No. 72,606.

Court of Criminal Appeals of Texas,

En Banc.

May 12, 1997.

Phil Robertson, Clifton, for appellant.

Martin L. Peterson, Hamilton, Matthew Paul, State's Atty., Austin, for the state.

Before the court en banc.

OPINION

HOLLAND, Judge.

In this original application for writ of habeas corpus, applicant contends she is illegally restrained by an order of contempt in the 220th District Court of Bosque County. Applicant asserts that (1) her restraint violates TEX. CONST. art. I, § 18, and various other statutes, because she is being imprisoned for failure to pay a debt; and (2) she was deprived of counsel at the hearing in which the trial judge found her in contempt of court and sentenced her to ninety days in the Bosque County Jail.

Applicant was convicted of burglary of a habitation and sentenced to five years confinement, probated, and a $3,000 fine. After the trial judge announced her sentence, applicant indicated her desire to appeal and requested a court-appointed attorney. The judge conducted a hearing on applicant's indigency. Applicant testified she did not have any dependents and that she was living with her fiance. She worked two or three days a week installing sheet rock and rode to work with a neighbor. Applicant stated that looking for a different job with a steady income was difficult because she did not have adequate transportation. Applicant was in the process of repaying her father for money he posted on her trial bond and retaining her trial attorney. Additionally, applicant still owed her trial attorney $1,400. Applicant maintained she could not afford to pay for a statement of facts or hire an attorney for purposes of an appeal.

The trial judge asked applicant how much money she could "come up with on a monthly basis" to which applicant responded, "[p]robably about fifty a week." The trial court made a "limited finding of indigency in regard to statement of facts and in regard to appointed--or in regard to counsel on appeal." ¹ The judge appointed applicant appellate counsel and ordered the court reporter to prepare a statement of facts. Applicant was ordered to pay $50.00 per week to the district clerk for the statement of facts and the attorney on appeal until further order of the court. ²

A few months later, the State filed a Motion to Show Cause alleging applicant failed to make any of the $50.00 weekly payments ordered by the trial court. Appearing pro se at the hearing on the motion, applicant informed the judge she was employed at Taco Bell working eight hours a day, six days a week. She was living by herself and paying rent on a house her father vacated. Applicant was still without transportation and rode to work each day with a neighbor. The judge told applicant

[y]ou better be making these payments, Ms. Gonzales, or you are not going to like what happens. And I am going to tell you, you are going to need to have an attorney representing you if you don't tend to business.... Otherwise you may be going to jail.

The trial judge continued the hearing for three weeks to see what kind of progress applicant made on the payments.

When the hearing resumed, applicant, again appearing pro se, still had not made a payment. The trial judge stated

I believe I had previously admonished you about retaining an attorney and told you that I did not find that you were indigent so I would [sic] appoint you an attorney.

* * *

I don't find you are in a situation where you're indigent as I determine that to be, so I'm not going to appoint you an attorney.

The State produced evidence of applicant's failure to make any of the $50.00 payments. ³ The record of the hearing demonstrates that applicant did not understand the proceeding and repeatedly asked the judge for explanations. Applicant did not put on any evidence nor did she argue in her own behalf. The judge held applicant in contempt and sentenced her to ninety days in jail. The judge provided that applicant's sentence would be suspended after thirty days if applicant paid Bosque County $750.00, the amount past due on her court ordered payments.

I.

In her first ground for review, applicant claims that her confinement resulting from her failure to make the court ordered weekly payments amounts to her being imprisoned for failure to pay a debt in violation of TEX. CONST. art. I, § 18. ⁴ She notes this Court's opinion in Curry v. Wilson, 853 S.W.2d 40 (Tex.Crim.App.1993) provides some background on the issue.

A.

The defendant in Curry was appointed counsel for his criminal trial. After the defendant was acquitted, the trial court notified the defendant that it was aware he had the resources to pay for his representation, and that pursuant to Tex.Code Crim.Proc.Ann. Art. 26.05(e), he would be required to repay the costs of the legal services provided by the county. In a writ of prohibition to this Court the defendant claimed art. 26.05(e), the Texas recoupment statute, violated the Due Process and Equal Protection provisions of the Texas and Federal Constitutions. We held art. 26.05(e) did not violate Due Process or Equal Protection in the manner argued by the defendant.

The issue in the instant case, which was left open in Curry, is whether a defendant can be held in contempt and confined for violating an order made pursuant to art. 26.05(e). Tex.Code Crim.Proc.Ann. art. 26.05(e) states

[i]f 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 the amount that it finds the defendant is able to pay.

While art. 26.05 provides for the recoupment of legal fees, it does not set forth the procedure by which to do so, nor the consequences resulting from a failure to make such payments.

Rather than contempt proceedings, applicant argues that the trial court should have utilized the procedures for collection of fees and expenses set forth in Tex.Code Crim.Proc.Ann. arts. 42.12 and 43.03. Article 42.12 requires that prior to making payment of fines, costs, restitution, or reimbursement for court appointed counsel a condition of probation, the trial court "consider" a probationer's ability to make such payments ordered by the court. Tex.Code Crim.Proc.Ann. art. 42.12, § 11(b); Pennington v. State, 902 S.W.2d 752, 754 (Tex.App.--Fort Worth 1995, pet. ref'd). Article 43.03 provides that if a defendant sentenced to pay a fine or costs defaults in payment, the court may not order the defendant confined unless the court

(1) determines that the defendant is not indigent or determines that the defendant wilfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay ....; and

(2) determines that no alternative method discharging fines and costs ... is appropriate for the defendant.

Tex.Code Crim.Proc.Ann. art. 43.03(d). Applicant claims the trial court's action in attempting to collect payments outside the guidelines of arts. 42.12 and 43.03 resulted in the type of Equal Protection violation the United States Supreme Court discussed in Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) and Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971).

In Williams, the Court held that a State may not keep a defendant incarcerated beyond the maximum period of confinement authorized by statute on the basis that the defendant is unable to pay the fine imposed as part of his sentence. In Tate, the Supreme Court held that the defendant could not be imprisoned for failure to pay a fine imposed for violating a "fine only" statute due to his indigent status. Tate, 401 U.S. at 397-98, 91 S.Ct. at 670-71. The Court found equal protection violations in Williams and Tate because the defendants suffered confinement solely due to their financial inability to pay a fine whereas those defendants with access to funds could avoid imprisonment.

Applicant does not explain how the equal protection violations the Court found in Williams and Tate apply to this case or how following the procedures outlined in arts. 42.12 and 43.03 would prevent such violations from occurring here. We note that neither art. 42.12 nor art. 43.03 directly applies to applicant because the trial court's judgment is being appealed. As such, the court was not obligated to order payments according to the guidelines of arts. 42.12 and 43.03. As best we can ascertain, applicant's argument is that following the procedures in arts. 42.12 and 43.03 cited above before a trial court finds a defendant in contempt and orders him confined for failure to make payments pursuant to art. 26.05(e) would safeguard against an Equal Protection violation arising from a defendant's confinement based solely on his indigent status. To an extent, we agree.

It would be illogical for a trial court to appoint a defendant counsel and then find the defendant in contempt and sentence him to prison for failure to reimburse the county for the expense of his defense without first considering his ability to make payments. This is true even if a trial court appoints counsel for a non-indigent defendant due to time constraints, as occurred in the instant case. Article 26.05 mandates as much, proving that "the court shall order the defendant to pay the amount that it finds the defendant is able to pay." If the court ignores the defendant's ability to make payments, whether the payments are a condition of probation or for the costs of one's legal defense, it is possible that a defendant may be imprisoned solely due to his indigent status. Language in both Williams and Tate suggests there is a distinction between a defendant who fails to make payments solely due to his indigent status and a defendant who has the funds to make payments, but refuses to do so. See Williams, 399 U.S. at 242 n. 19, 90 S.Ct. at 2023 n. 19 (st...