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Charged With a Crime? You Might Be Paying a Court Fee That Is Basically Un-Enforceable

Seventeen-year-old Malik Walker was in a 7-11 convenience store one day when police stormed in and arrested a group of younger boys from his high school. They had just run away from a burglary and into the store, and while police found nothing on Walker, according to his court-appointed attorney, they cuffed him too.

Although Walker's case was ultimately dismissed, criminal charges come with a high cost in Harris County.

After his mom paid $1,000 to bail him out, here is what this unemployed high school senior had to do so his bond wouldn't be revoked and he wouldn't get tossed back in jail: random drug and alcohol testing, a 7 p.m. curfew every day, and proof that he reached out to 25 businesses every week for a job. Walker would also have to pay $60 every month to the Harris County Community Supervision and Corrections Department (a.k.a. the probation department).

On top of all these pretrial probation-like conditions, a judge also asked Walker to pay $200 per month to offset court-appointed attorney costs — a fee that, at least in Walker's case, should never have been assessed in the first place, according to lawyers who have reviewed his case.

That's because judges are allowed to order that defendants "repay" court-appointed attorney fees only if they can find sufficient evidence defendants have the means to do so. Texas appeals courts have consistently ordered lower courts to throw out those fees in cases where a judge didn't consider whether a defendant could actually pay — which appears to be what happened in Walker's case. 

Walker was somehow not considered indigent by the court, but was appointed an attorney a month after he was charged; evidently he took too long to hire one on his own. The monthly fees are reserved for these people, said State District Judge Susan Brown — the kind of people who, for example, "can afford the monthly payments to buy a house but can't afford the down payment." In other words, they're borderline poor and can't scrape together a couple thousand bucks quickly enough to retain a private attorney. But since the court-ordered monthly fees are much cheaper than the cost of a private attorney, Brown called it a bargain for defendants. 

In deciding to order these monthly payments, Brown said that she looks at the financial affidavit defendants fill out, and said that their parents' income doesn't count. 

When we looked at 17-year-old Walker's financial affidavit, he indicated he had zero income, no bank account and no job, and that his mom paid all the bills. Walker's attorney, Murray Newman, told his client not to pay.

“Judge was not amused with me, but I said, 'You tell me this high schooler without a job has any income to be paying that?'” Newman said. “That's when she added the look-for-25-jobs-a-week part.”

Walker's case might not be an isolated occurrence. While the district clerk's office last week couldn't give us numbers on how often courts impose these pay-back fees, Brown told us at least three other district court judges do it (none of those judges could be reached for comment last week). Brown estimated that at least 50 defendants on her court docket are currently paying those fees. However, she added that she doesn't really have a way to enforce them since her court doesn't track whether defendants are even paying. "It's not like we send a bill collector out," Brown told us. "We hope they're gonna pay it, and that's all we can do." (Technically, Brown could throw people in jail for contempt of court if she decided to actually track such payments — something she said she wouldn't do.) 

As Harris County Chief Public Defender Alex Bunin put it: “It's like if a policeman came up to you on the street and ordered you to go home and clean your room. You could, but you don't have to.”

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Besides, in a 1997 case in which that actually happened to a person who had a minimum-wage job at Taco Bell, the Texas Court of Criminal Appeals noted that it would be "illogical" to appoint someone counsel, then put the person in jail for not reimbursing the county for said counsel without ever considering whether that person could pay in the first place. That standard applies regardless of whether a judge considers the defendant indigent, the judges noted. 

But to Bunin, what's ultimately problematic with that kind of monthly payment (which is capped at the maximum amount a court-appointed attorney can charge, $875 in Walker's case) is that it's prospective: It assumes that a person will have the means to come up with this money each month, the way a responsible person doesn't buy a car until he knows he can. Meaning a much more detailed indigency hearing would be required to make sure a defendant can actually shoulder these payments.

Before Walker's case wrapped up, Brown also ordered he pay an additional $1,200 to the court registry to recoup attorney's fees, since his case was set for trial (it was ultimately dismissed the day the trial was scheduled). Still, according to court records, there was never a formal hearing to determine whether Walker could pay. Newman says it never happened.

When we asked Judge Brown, who couldn't recall Walker's case, why that might be, she said determining whether someone's too poor to pay is "pretty informal."

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