Charles Bradshaw v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-22-00355-CR

CHARLES BRADSHAW,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 19th District Court
McLennan County, Texas
Trial Court No. 2019-1678-C1

DISSENT

In this proceeding, the parties have agreed that under the relevant statute, the trial

court erred in assessing costs. The appellant argued that the trial court erred by applying

the amended costs statute in effect on the date of the conviction rather than the statute in

effect on the date of the offense. The State conceded that the applicable statute, the one

under which costs should be assessed, was the statute in effect on the date of the offense.

The specific error briefed and conceded is that the trial court assessed costs under

an amended version of Local Government Code section 133.102(a)(1). The parties agree

that the enabling language for the amended statute is very explicit, that the amendments
to the statute do not apply to crimes committed prior to the effective date of the statute,

that being January 1, 2020, and that this crime was, in fact, committed prior to that date.1

The enabling language at issue for the amendments to the costs statute in effect at

the time the offense was committed states:

ARTICLE 5. TRANSITION AND EFFECTIVE DATE

SECTION 5.01.

Except as otherwise provided by this Act, the changes in law made by this
Act apply only to a cost, fee, or fine on conviction for an offense committed
on or after the effective date of this Act. An offense committed before the
effective date of this Act is governed by the law in effect on the date the
offense was committed, and the former law is continued in effect for that
purpose. For purposes of this section, an offense was committed before the
effective date of this Act if any element of the offense occurred before that
date.
***

SECTION 5.04.

This Act takes effect January 1, 2020.

We have applied this language in a number of cases. 2

1
A majority of this Court has developed and used an abatement procedure when court costs assessed in
the trial court’s judgment are at issue on appeal. See Willingham v. State, No. 10-21-00158-CR (Tex. App.—
Waco Oct. 19, 2022, order); Carnley v. State, No. 10-21-00104-CR (Tex. App.—Waco Oct. 19, 2022, order);
Welch v. State, 668 S.W.3d 54 (Tex. App.—Waco 2022, order). I have disagreed with that procedure. (see
dissenting opinions in each). This Court has recently used the abatement procedure. Rios v. State, No. 10-
21-00266-CR (Tex. App.—Waco, June 9, 2023, order). But for some reason, that procedure is not always
used, see Moore v. State, No. 10-22-00051-CR, 2023 Tex. App. LEXIS 2717 (Tex. App.—Waco Apr. 26, 2023,
no pet.) (not designated for publication); Fields v. State, No. 10-21-00275-CR, 2022 Tex. App. LEXIS 8588
(Tex. App.—Waco Nov. 22, 2022, no pet.) (not designated for publication), and it was not used here. Why?
I am trying to figure this out so that I can understand when the procedure should be used and to see if we
are consistent in when we use it. I can offer the reader no help in this analysis. If it could ever be
appropriate, this might be the case in which it could be helpful; but then again, I see no need to even apply
it here because we could modify the judgment and move on.

2
See e.g. Simmons v. State, No. 10-18-00269-CR, 2023 Tex. App. LEXIS 450, at *9 (Tex. App.—Waco Jan. 25,
2023, no pet.) (not designated for publication); Lee v. State, No. 10-18-00334-CR, 2022 Tex. App. LEXIS 9460,
at *4 (Tex. App.—Waco Dec. 28, 2022, no pet.) (not designated for publication); Anderson v. State, No. 10-
Bradshaw v. State Page 2
Rather than analyzing the issue based on the briefing of the parties, including the

concession of error by the State, the Court has found a statute not cited by either party

and argues that it effectively controls over the specific enabling language in the statute

that amended the costs statute being applied. The statute found by the Court provides

as follows:

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 § 51.608 (effective June 14, 2013).

The Court holds that this language, passed six years before the amendment and

enabling language at issue, has the effect of negating the language of the more recent

statute.

The limited support cited by the Court for its manner of construing the two

statutes and why the earlier statute would control does not identify or address the

growing split of authority on this subject or which Hayes opinion is correct. Compare

Hayes v. State, No. 12-20-00222-CR, 2021 Tex. App. LEXIS 2829 (Tex. App.—Tyler Apr. 14,

2021, no pet.) (not designated for publication) with Hayes v. State, No. 11-21-00251-CR,

2023 Tex. App. LEXIS 4186 (Tex. App.—Eastland June 15, 2023, no pet. h.) (not designated

18-00341-CR, 2022 Tex. App. LEXIS 9459, at *7 (Tex. App.—Waco Dec. 28, 2022, pet. ref'd) (not designated
for publication); West v. State, No. 10-20-00087-CR, 2022 Tex. App. LEXIS 2424 (Tex. App.—Waco Apr. 13,
2022, no pet.) (not designated for publication); Berry v. State, Nos. 10-19-00416-CR, 10-19-00417-CR, 10-19-
00418-CR, 2022 Tex. App. LEXIS 3871, at *5-*7 (Tex. App.—Waco June 8, 2022, no pet.) (not designated for
publication).

Bradshaw v. State Page 3
for publication).

Respectfully, the Court of Criminal Appeals needs to resolve this issue. At the

very least, having identified the issue, we should ask for briefing on the issue.

Assessment of criminal court costs is already a gnarly issue, and the Court’s

holding is like throwing a handful of sewing machine parts onto a table where a double

barrel shotgun is disassembled and then trying to figure out how all the pieces will go

back together. They will not. I would modify the trial court’s judgment as agreed by the

parties and affirm the judgment as modified. Because the Court does what it does

instead, but more importantly because of the reason and way that it does it, I respectfully

dissent.

TOM GRAY
Chief Justice

Dissent delivered and filed August 2, 2023

Bradshaw v. State Page 4