PD-0947-16 11/02/2016
- "This ground of review assumes that a separate $5 court cost for releasing a defendant from jail is appropriate. The Court of Appeals upheld the trial court's assessment of a $5 cost for 'release' because the defendant was 'released' to prison. Did the Court of Appeals err in affirming the assessment of a cost for 'release' when the defendant was 'released' to prison?"
- "This ground of review assumes that a $5 cost for releasing a defendant to prison is appropriate. Costs for peace officer services are to be assessed for services performed 'in the case.' The Court of Appeals upheld the trial court's assessment of a $5 cost even though the sheriff released Mr. Williams to prison following trial. Did the Court of Appeals err in upholding the cost assessment because the release occurred after the trial concluded?"
- "This ground of review assumes a $5 cost for releasing a defendant to prison is appropriate even though the release occurs after trial. The Court of Appeals upheld the $5 cost's assessment even though there had been no release at the time the bill of costs was prepared. Did the Court of Appeals err in affirming the assessment of a cost for which a service had not yet been performed?"
Article 102.011 of the Code of Criminal Procedure provides, "A defendant convicted of a felony or misdemeanor shall pay the following fees for services performed in the case by a peace officer:..$5 for commitment or release." Following Williams conviction and sentencing to TDCJ for three felonies, the trial court assessed a $5.00 release fee as a cost of court.
The court of appeals rejected Williams' claim that, because he was never released from county jail, the release fee was improper. The court of appeals held that the judgment ordered Williams to be released from the county jail to the custody of TDCJ; therefore, the release fee was proper. The court of appeals refused to follow a 2014 Attorney General Opinion, which stated that releasing a defendant from jail at the conclusion of a case is not a "service performed in the case," so the fee cannot properly be imposed. The court of appeals noted that Attorney General opinions are not binding on appellate courts.
Williams contends that a defendant who is sent directly from jail to TDCJ is never released into society at large. He also argues that, before rejecting the Attorney General's opinion about whether release to TDCJ was a service performed in the case, the court of appeals should have at least addressed its rationale. Finally, he argues that the cost was improper because it was premature. At the time it was imposed, he had not yet been released and was still in the county jail.
