Is it unconstitutional to charge a Texas defendant the court costs in effect on the conviction date instead of the offense date?

Plain-English summary

Government Code section 51.608 sets a simple rule for criminal court costs: the amount a defendant owes is the amount the law set on the date of conviction, even if the costs were lower when the offense was committed. Texas Comptroller Susan Combs, whose office helps administer these costs, asked the Attorney General whether that rule violates the federal and Texas constitutional bans on ex post facto laws, since a defendant could end up paying more in costs than the law required when the crime occurred.

The Attorney General concluded a court would likely find no constitutional violation. Both the United States and Texas Constitutions prohibit ex post facto laws, and Texas courts read the two provisions the same way, following the U.S. Supreme Court's standards. The core of an ex post facto law is that it increases the punishment for a crime after the crime was committed. The key point in the opinion is that court costs are generally not punishment. The Texas Court of Criminal Appeals has drawn a line between fines, which are part of a sentence and are punishment, and court costs, which are a recoupment of the expense of running the court system and do not change the range of punishment a defendant faces. Because court costs are generally not punishment, raising them after an offense is committed generally does not increase punishment, so section 51.608 generally raises no ex post facto concern.

The opinion left a narrow door open. In an extraordinary case, a court could find that a particular increase in costs is really increased punishment. The Court of Criminal Appeals uses an "intent-effects" test for that: first asking whether the Legislature intended the charge as criminal punishment, and if not, weighing seven factors to see whether the charge is punitive in effect. Simply calling a charge "court costs" does not by itself guarantee its constitutionality. But as a general matter, and consistent with courts outside Texas that have considered new cost statutes, the AG concluded a Texas court would likely hold that section 51.608 does not violate the ex post facto clauses of either constitution. The opinion also noted, in a footnote, that even a contrary answer would not relieve the Comptroller's office of its duty to implement the law as written, since deciding a statute's constitutionality is for the judiciary, not an administrative agency.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Texas Comptroller of Public Accounts (as the opinion described it): The opinion answered that a court would likely conclude section 51.608 does not violate the ex post facto clauses, and noted that in any event the Comptroller's office was obligated to implement the law as enacted, since constitutionality is a question for the courts.

Court clerks collecting costs (as the opinion described it): The opinion described section 51.608 as setting the cost amount by the law in effect on the conviction date, and treated that rule as generally constitutional because court costs are not punishment.

Criminal defendants (as the opinion described it): The opinion described court costs as generally a recoupment of judicial expense rather than punishment, so that an increase taking effect between offense and conviction generally would not raise an ex post facto problem, while leaving open that an extraordinary, punitive cost could be challenged under the intent-effects test.

Common questions

Can a defendant be charged higher court costs than the law set when the crime happened?
Under section 51.608, yes, because the statute sets the amount by the law in effect on the conviction date. The AG concluded that generally does not violate the ex post facto clauses, because court costs are not punishment.

Why isn't that an ex post facto law?
An ex post facto law increases punishment after the crime. The Texas Court of Criminal Appeals has held that court costs are generally not punishment but a recoupment of judicial costs, so raising them after the offense generally does not increase punishment.

Could a court cost ever be unconstitutional under this clause?
The AG said yes, in an extraordinary case. A court could use the "intent-effects" test to decide whether a particular charge labeled "court costs" is actually punishment in intent or effect, and labeling alone does not guarantee constitutionality.

Does this opinion change the Comptroller's duty to collect the costs?
No. The opinion noted that an administrative agency implements statutes as written and leaves constitutionality to the judiciary, so the office's duty to apply the law would stand even if the answer had gone the other way.

Background and statutory framework

Section 51.608 directs that the amount of a court cost imposed on a criminal defendant is the amount established by the law in effect on the date the defendant is convicted (Tex. Gov't Code Ann. § 51.608 (West Supp. 2013)). The federal and Texas ex post facto bans appear at U.S. Const. art. I, § 10, cl. 1 and Tex. Const. art. I, § 16, and Texas courts apply the same, U.S. Supreme Court-derived standard to both (Grimes v. State, 807 S.W.2d 582, 586 (Tex. Crim. App. 1991); Carmell v. Texas, 529 U.S. 513, 522 (2000); Phillips v. State, 362 S.W.3d 606, 610 (Tex. Crim. App. 2011); Johnson v. State, 930 S.W.2d 589, 591 (Tex. Crim. App. 1996)).

The opinion turned on the Court of Criminal Appeals' treatment of court costs as recoupment rather than punishment (Armstrong v. State, 340 S.W.3d 759, 766-67 (Tex. Crim. App. 2011); Weir v. State, 278 S.W.3d 364, 365-66 (Tex. Crim. App. 2009); Rylander v. Caldwell, 23 S.W.3d 132, 138 (Tex. App.-Austin 2000, no pet.)). For the extraordinary case, the AG described the "intent-effects" test and its seven effects factors (Rodriguez v. State, 93 S.W.3d 60, 67-68 (Tex. Crim. App. 2002)), and noted that a "court costs" label is not dispositive (Collins v. Youngblood, 497 U.S. 37, 46 (1990)). In footnotes, the AG addressed the separate Texas "retroactive law" prohibition and vested rights (Engelbrecht v. State, 294 S.W.3d 864, 869 n.2 (Tex. App.-Beaumont 2009, no pet.); Ibarra v. State, 11 S.W.3d 189, 192 (Tex. Crim. App. 1999); City of Dallas v. Trammell, 101 S.W.2d 1009, 1012 (Tex. 1937)), pointed to how costs are imposed on conviction (Tex. Loc. Gov't Code Ann. § 133.102 (West Supp. 2013); Tex. Gov't Code Ann. § 102.021 (West 2013); Tex. Code Crim. Proc. Ann. art. 103.001 (West 2006)), collected out-of-state authority reaching the same result (Taylor v. Rhode Island, 101 F.3d 780, 783-84 (1st Cir. 1996), cert. denied, 521 U.S. 1104 (1997); People v. Alford, 171 P.3d 32, 36-39 (Cal. 2007); Doe v. Sex Offender Registry Bd., 947 N.E.2d 9, 23-26 (Mass. 2011)), and observed that an agency must implement a statute and leave constitutionality to the courts (Edwards Aquifer Auth. v. Day, 369 S.W.3d 814, 844 (Tex. 2012)). The AG also cautioned that two earlier opinions suggesting the opposite (Tex. Att'y Gen. Op. Nos. DM-464 (1997), JM-443 (1986)) predate the controlling Court of Criminal Appeals decisions and should not be relied on to the extent they conflict.

Citations

Constitutional and statutory provisions:

• U.S. Const. art. I, § 10, cl. 1; Tex. Const. art. I, § 16 (ex post facto prohibitions)
• Tex. Gov't Code Ann. § 51.608 (West Supp. 2013) (court costs set by law in effect on conviction date)
• Tex. Loc. Gov't Code Ann. § 133.102 (West Supp. 2013); Tex. Gov't Code Ann. § 102.021 (West 2013) (costs imposed on conviction)
• Tex. Code Crim. Proc. Ann. art. 103.001 (West 2006) (cost not payable until a written bill is produced)

Cases:

• Grimes v. State, 807 S.W.2d 582, 586 (Tex. Crim. App. 1991)
• Carmell v. Texas, 529 U.S. 513, 522 (2000)
• Phillips v. State, 362 S.W.3d 606, 610 (Tex. Crim. App. 2011)
• Johnson v. State, 930 S.W.2d 589, 591 (Tex. Crim. App. 1996)
• Armstrong v. State, 340 S.W.3d 759, 766-67 (Tex. Crim. App. 2011)
• Weir v. State, 278 S.W.3d 364, 365-66 (Tex. Crim. App. 2009)
• Rylander v. Caldwell, 23 S.W.3d 132, 138 (Tex. App.-Austin 2000, no pet.)
• Rodriguez v. State, 93 S.W.3d 60, 67 (Tex. Crim. App. 2002)
• Collins v. Youngblood, 497 U.S. 37, 46 (1990)
• Engelbrecht v. State, 294 S.W.3d 864, 869 n.2 (Tex. App.-Beaumont 2009, no pet.)
• Ibarra v. State, 11 S.W.3d 189, 192 (Tex. Crim. App. 1999)
• City of Dallas v. Trammell, 101 S.W.2d 1009, 1012 (Tex. 1937)
• Taylor v. Rhode Island, 101 F.3d 780, 783-84 (1st Cir. 1996), cert. denied, 521 U.S. 1104 (1997)
• People v. Alford, 171 P.3d 32, 36-39 (Cal. 2007)
• Doe v. Sex Offender Registry Bd., 947 N.E.2d 9, 23-26 (Mass. 2011)
• Edwards Aquifer Auth. v. Day, 369 S.W.3d 814, 844 (Tex. 2012)

Other authority:

• Tex. Att'y Gen. Op. Nos. DM-464 (1997), JM-443 (1986) (earlier ex post facto opinions, predating controlling case law)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1034
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1034.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

January 2, 2014

The Honorable Susan Combs Opinion No. GA-1034
Texas Comptroller of Public Accounts
Post Office Box 13528 Re: Whether Government Code section 51.608,
Austin, Texas 78711-3528 which requires that court costs imposed on a
defendant in a criminal proceeding be the amount
required on the date the defendant is convicted,
violates federal and state constitutional prohibitions
of ex post facto laws (RQ-1135-GA)

Dear Comptroller Combs:

You ask whether Government Code section 51.608 violates federal and state constitutional prohibitions on ex post facto laws.[1] The statute provides:

Notwithstanding any other law that establishes the amount of a court cost collected by the clerk of a district, county, or statutory county court from a defendant in a criminal proceeding based on the law in effect on the date the offense was committed, the amount of a court cost imposed on the defendant in a criminal proceeding must be the amount established under the law in effect on the date the defendant is convicted of the offense.

TEX. GOV'T CODE ANN. § 51.608 (West Supp. 2013). Under section 51.608, a criminal defendant could be required to pay more in court costs than the amount that was required on the date the offense was committed. You are concerned that such a scenario may run afoul of the constitutional prohibition on ex post facto laws. Request Letter at 1. As we explain below, it does not.

The United States and the Texas Constitutions both prohibit ex post facto laws. U.S. CONST. art. I, § 10, cl. 1; TEX. CONST. art. I, § 16. Texas courts have decided that the ex post facto provisions in both constitutions have the same meaning and have therefore adopted the U.S. Supreme Court's standards for analyzing Texas's constitutional ex post facto provision. Grimes v. State, 807 S.W.2d 582, 586 (Tex. Crim. App. 1991).[2] The constitutional prohibition on ex post facto laws bars any law enacted after a crime has been committed that increases punishment for the crime. Carmell v. Texas, 529 U.S. 513, 522 (2000); Phillips v. State, 362 S.W.3d 606, 610 (Tex. Crim. App. 2011). In other words, "[a] retroactive increase in the 'quantum of punishment' violates the ex post facto clause." Johnson v. State, 930 S.W.2d 589, 591 (Tex. Crim. App. 1996) (citation omitted).

The Texas Court of Criminal Appeals has held that, unlike a sentence of incarceration or a fine, an order to pay court costs is generally not a part of the punishment assessed against a convicted defendant. See, e.g., Armstrong v. State, 340 S.W.3d 759, 766-67 (Tex. Crim. App. 2011) (distinguishing court costs, which do not change "the range of punishment to which the defendant is subject," from fines, which are punishment and part of the sentence); Weir v. State, 278 S.W.3d 364, 365-66 (Tex. Crim. App. 2009) (determining that a statute authorizing the assessment of costs against a convicted defendant was intended as recoupment of judicial costs, not as punishment); Rylander v. Caldwell, 23 S.W.3d 132, 138 (Tex. App.-Austin 2000, no pet.) (determining that a statute providing for defendants to pay a particular court cost was intended to supplement statutory county court judges' salaries, not to criminalize or punish certain behavior). Because court costs generally do not constitute punishment, an increase in court costs after an offense is committed generally will not constitute a prohibited increase in punishment. Therefore, in the vast majority of cases the increase in court costs made possible by section 51.608 will raise no ex post facto concerns.[3]

While court costs generally do not constitute punishment and therefore generally do not implicate prohibitions on ex post facto laws, a court could find, in an extraordinary case, that a particular increase in court costs amounts to increased punishment in violation of the ex post facto clause. The Court of Criminal Appeals has held that whether a statute constitutes punishment for constitutional purposes may be determined by application of the "intent-effects" test. Rodriguez v. State, 93 S.W.3d 60, 67 (Tex. Crim. App. 2002). The first part of the test requires a court to determine if the Legislature intended the statute to constitute a criminal punishment. Id. The inquiry is in part a matter of statutory construction, and courts "must afford a high level of deference to the [L]egislature's stated aims in passing the statute." Id. If the statute was intended as punishment, the inquiry is over, and retroactive application of the statute would be unconstitutional. See id. If no punitive intent is apparent, however, then a court must consider seven factors to determine whether the effects of the statute are criminally punitive in operation. See id. at 68.[4]

While court costs generally do not constitute punishment, merely labeling a monetary sanction as "court costs" does not guarantee the law's constitutionality. See Collins v. Youngblood, 497 U.S. 37, 46 (1990) ("[B]y simply labeling a law 'procedural,' a legislature does not thereby immunize it from scrutiny under the Ex Post Facto Clause."). As explained above, however, court costs are generally not considered punitive, so an increase in court costs generally will not raise ex post facto concerns. Like the Court of Criminal Appeals, courts outside of Texas considering the issue have typically determined that statutes imposing new costs, if they are not punitive in either intent or effect, are not unconstitutional ex post facto laws.[5] A Texas court would likely conclude that section 51.608 of the Texas Government Code does not violate the ex post facto clauses of the United States or Texas Constitutions.[6]

SUMMARY

A court would likely conclude that section 51.608 of the Texas Government Code does not violate the ex post facto clauses of the United States or Texas Constitutions.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Susan Combs, Tex. Comptroller of Pub. Accounts, to Honorable Greg Abbott, Tex. Att'y Gen. (July 9, 2013), http://texasattorneygeneral.gov/opin ("Request Letter").

[2] You also suggest that section 51.608 may be unconstitutional as a "retroactive law" prohibited by article I, section 16 of the Texas Constitution. Request Letter at 2. The Court of Criminal Appeals has not definitively determined whether the retroactive law prohibition extends to criminal cases separately from the ex post facto prohibition. See Engelbrecht v. State, 294 S.W.3d 864, 869 n.2 (Tex. App.-Beaumont 2009, no pet.) (citing Grimes v. State, 807 S.W.2d 582, 586 (Tex. Crim. App. 1991)). Assuming that it does apply, the retroactive law provision only prohibits laws that disturb vested substantive rights. Ibarra v. State, 11 S.W.3d 189, 192 (Tex. Crim. App. 1999). Court costs are generally imposed by a bill of costs prepared upon conviction. See, e.g., TEX. LOC. GOV'T CODE ANN. § 133.102 (West Supp. 2013) (consolidated fees on conviction); TEX. GOV'T CODE ANN. § 102.021 (West 2013) (court costs on conviction); see also TEX. CODE CRIM. PROC. ANN. art. 103.001 (West 2006) (providing that a cost is not payable "until a written bill is produced or is ready to be produced"). A person charged with a crime does not have a vested right to expect court cost statutes to remain static throughout the pendency of prosecution. See City of Dallas v. Trammell, 101 S.W.2d 1009, 1012 (Tex. 1937) (holding that a person does not have a vested right in the expectancy of the "continuance of existing laws").

[3] You note that prior attorney general opinions have broadly indicated that statutes imposing or increasing court costs for pending criminal proceedings are unconstitutional ex post facto laws. Request Letter at 2 (citing Tex. Att'y Gen. Op. Nos. DM-464 (1997), JM-443 (1986)). These opinions, however, predate the Court of Criminal Appeals decisions on which this opinion is based. These attorney general opinions should not be relied upon to the extent they are inconsistent with more recent authority from the Court of Criminal Appeals regarding ex post facto laws.

[4] "Courts consider: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has traditionally been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable to it; and (7) whether it appears excessive in relation to the alternative purpose assigned." Rodriguez, 93 S.W.3d at 68.

[5] See, e.g., Taylor v. Rhode Island, 101 F.3d 780, 783-84 (1st Cir. 1996), cert. denied, 521 U.S. 1104 (1997) (holding that small cost-based supervisory fee was not an ex post facto punishment); People v. Alford, 171 P.3d 32, 36-39 (Cal. 2007) (holding that a new fee was not an ex post facto law because it was enacted as part of an emergency budgetary measure for the nonpunitive purpose of funding court security); Doe v. Sex Offender Registry Bd., 947 N.E.2d 9, 23-26 (Mass. 2011) (determining that neither the purpose nor the effect of an annual sex offender registry fee was punitive and therefore not an unconstitutional ex post facto law).

[6] Even if our answer were otherwise, it would not change your office's legal obligation to implement the law as enacted by the Legislature. Administrative agencies like the Comptroller's office are to implement statutes according to legislative intent, leaving the determination of a statute's constitutionality to the judiciary. See Edwards Aquifer Auth. v. Day, 369 S.W.3d 814, 844 (Tex. 2012) (stating that "as a rule," an administrative agency does not have the authority to decide the constitutionality of a statute).