KATY OBERLENDER APPELLANT v. THE STATE OF TEXAS APPELLEE (2026)

MEMORANDUM OPINION

Katy Ruth Oberlender appeals following the revocation of her deferred adjudication community supervision. In one issue, Appellant argues that the trial court erred in assessing the time-payment fee as a court cost against her. We modify the trial court's judgment and bill of costs to remove the time payment fee and affirm the judgment as modified.

BACKGROUND

Appellant was charged with aggravated assault with a deadly weapon and pleaded “guilty.” The trial court deferred finding Appellant “guilty” and placed her on community supervision for ten years.

Thereafter, the State filed a motion to revoke Appellant's community supervision and proceed to final adjudication of guilt, arguing that Appellant violated certain terms and conditions of her community supervision. At the hearing on the State's motion, Appellant pleaded “not true” to the allegations in the State's motion. Following the presentation of evidence and arguments of counsel, the trial court found certain allegations in the State's motion to be “true,” revoked Appellant's community supervision, adjudicated her “guilty” as originally charged, and sentenced her to imprisonment for six years. This appeal followed.

TIME-PAYMENT FEE

In her sole issue, Appellant argues that the trial court erred by prematurely assessing a twenty-five-dollar time-payment fee in its judgment. The State concedes that this fee was assessed prematurely.

Standard of Review and Governing Law

On appeal, courts review the assessment of court costs to determine whether a basis exists for the cost, rather than whether there was sufficient evidence offered at trial to prove each cost. Johnson v. State, 423 S.W.3d 385, 389–90 (Tex. Crim. App. 2014); see also Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011) (court costs are not part of a sentence, but “a nonpunitive recoupment of the costs of judicial resources expended in connection with the trial of the case”). Court costs may not be assessed against a criminal defendant when such costs are not provided expressly by law. See TEX. CODE CRIM. PROC. ANN. art. 103.002. When a trial court improperly includes amounts in assessed court costs, the appropriate appellate remedy is to reform the judgment to delete the improperly assessed fees. Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013); Bechtel v. State, No. 12-23-00003-CR, 2023 WL 3910362, at *1 (Tex. App.–Tyler June 8, 2023, no pet.) (mem. op., not designated for publication).

The Texas Code of Criminal Procedure requires that a person convicted of a felony or misdemeanor pay a reimbursement fee of $15.00 if the person fails to pay any part of a fine, court costs, or restitution within thirty days after the court enters the judgment ordering such payment. See TEX. CODE CRIM. PROC. ANN. art. 102.030. However, in Dulin v. State, 620 S.W.3d 129 (Tex. Crim. App. 2021), the Texas Court of Criminal Appeals concluded that a pending appeal suspends a defendant's duty to pay fines, court costs, and restitution, which duty is triggered only by a final judgment. Dulin, 620 S.W.3d at 133. Thus, the pendency of an appeal “stops the clock” for purposes of the time payment fee. Id. A trial court's assessment of a time payment fee before the appellate mandate issues, therefore, lacks any basis and is premature. See id.; Pruitt v. State, 646 S.W.3d 879, 886 (Tex. App.–Amarillo 2022, no pet.).

Discussion

In the instant case, the Anderson County District Clerk's itemized bill of costs, which was certified on January 9, 2026, included a $25.00 time-payment fee as part of the $503.00 in total court costs.¹ Appellant's timely notice of this appeal suspended her duty to pay the court costs imposed in the judgment adjudicating her “guilty” and stopped the figurative clock on the thirty-day payment period, the expiration of which would trigger the time-payment fee. See Dulin, 620 S.W.3d at 133. These appellate proceedings still are pending, and no court of appeals has issued a mandate.

This Court has the authority to modify an incorrect judgment when it has available the information necessary to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Bechtel, 2023 WL 3910362, at *2. Because the imposition of the time-payment fee is premature until thirty days after the resolution of an appeal, the time payment fee assessed herein must be struck. Appellant's sole issue is sustained.

DISPOSITION

Having sustained Appellant's sole issue, we modify both the bill of costs and the trial court's judgment to remove the time-payment fee. Our ruling is without prejudice to future assessment of the time-payment fee if, more than thirty days after our mandate issues, Appellant fails completely to pay any fine, court costs, or restitution she owes. We affirm the trial court's judgment as modified.

JUDGMENT

THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that the bill of costs and judgment of the court below should be modified.

It therefore is ORDERED, ADJUDGED, and DECREED that both the bill of costs and trial court's judgment be modified to remove the time-payment fee. It further is ORDERED, ADJUDGED, and DECREED that the trial court's judgment is affirmed as modified and that this decision be certified to the court below for observance.

FOOTNOTES

1.   The trial court's order placing Appellant on community supervision ordered that she pay $383.00 in court costs. The sum of the itemized court costs in the bill of costs is $383.00. The bill of costs lists the total amount paid as $383.00 and the total amount still owed as $120.00. Appellant has not raised an issue in her brief about the fact that itemized costs assessed do not add up to $503.00. For purposes of our analysis, we presume that the time-payment fee was not included in the $383.00 Appellant agreed to pay as a condition of her community supervision because (1) there is no bill of costs in the record made at the time that order was rendered and (2) assessment of a time-payment fee requires that the person be convicted of a felony or misdemeanor. See TEX. CODE CRIM. PROC. ANN. art. 102.030.

JAMES T. WORTHEN Chief Justice