WHITFIELD v. STATE (2026)

Petition for discretionary review refused.

DISSENTING OPINION

Appellant was arrested pursuant to a warrant. While he was in jail, the district clerk issued a written notice for him to appear in court. In the district clerk's bill of costs, Appellant was charged $50 for the arrest and $5 for the written notice to appear. The purported statutory basis for the $5 charge is that a peace officer issued a written notice to appear, but in fact, no peace officer issued such a notice to Appellant in this case, with the notice being issued by the district clerk. The court of appeals essentially held that Appellant being in jail at the time the notice to appear was issued was good enough, but that practice is contrary to the plain language of the statute. In some situations, a peace officer can issue a notice to appear in lieu of a traditional arrest. A notice issued by a district clerk after a defendant is arrested is not that sort of notice. While the amount is only $5, the district clerk and the district court misconstrued the statute, and if this misconstruction is allowed to continue, it could occur numerous times—tacking on an extra $5 for simply sending a notice to appear to a defendant who has already been arrested and is still incarcerated. The Dallas and Texarkana courts are both upholding this practice, and their decisions could potentially influence other courts. We should grant review and stop it now.

I. BACKGROUND

On November 23, 2021, Appellant was arrested for aggravated sexual assault of a child. He was subsequently indicted on two counts of committing that offense. Appellant has remained incarcerated in the county jail or in prison ever since. On May 23, 2022, while he was in jail awaiting trial, the district clerk issued a notice to appear. Appellant was subsequently convicted. The district clerk issued a bill of costs that, among other things, charged Appellant $50 for the arrest and $5 for the notice to appear.

On appeal, Appellant pointed to both the $50 fee and the $5 fee as costs that were “arguably improper.” He further complained that there was only one arrest, that the record did not include a warrant, and that if there was no warrant then he could not be charged the $50 fee and could only be charged the $5 fee. The State argued that there was a warrant, and so Appellant should be charged the $50 fee. The record was supplemented to show that Appellant was in fact arrested pursuant to a warrant.

The court of appeals held that Appellant was validly charged the $50 fee because he was indeed arrested pursuant to a warrant.¹ Citing an unpublished decision from the Texarkana Court of Appeals, the court of appeals also held that Appellant was validly charged the $5 fee because “Appellant was delivered a ‘Notice to Appear’ while he was being held in custody at the Collin County Sheriff's Office.”² The court of appeals specifically recited the Texarkana court's holding that the defendant being in custody at the time the notice was served was a sufficient basis for upholding the $5 charge.³

In his petition, Appellant complains about the court of appeals's holding that the $5 fee was authorized. Appellant contends that this holding conflicts with the court of appeals's own decision in Wilbanks v. State,⁴ which held that fee was not allowed for a notice to appear issued by a district clerk. Appellant also contends that the court of appeals misconstrued the statute, that the Texarkana court of appeals also misconstrued the statute, and that this issue could affect numerous cases across the state.

II. ANALYSIS

In construing a statute, courts must give effect to the plain meaning its text unless the statute is ambiguous or the plain meaning leads to absurd results that the legislature could not have possibly intended.⁵ Here, the relevant statutory language is unambiguous.

At the time of Appellant's trial, the court-costs statute at issue provided in relevant part:

(a) A defendant convicted of a felony or a misdemeanor shall pay the following reimbursement fees to defray the cost of the services provided in the case by a peace officer:

(1) $5 for issuing a written notice to appear in court following the defendant's violation of a traffic law, municipal ordinance, or penal law of this state, or for making an arrest without a warrant;

(2) $50 for executing or processing an issued arrest warrant, capias, or capias pro fine ․6

I include subdivision (2) merely for context. Appellant was validly assessed a $50 fee because he was arrested, pursuant to a warrant, by a peace officer. But no peace officer ever issued him a written notice to appear. The statute explicitly requires that a “peace officer” perform the actions at issue, and subdivision (1) explicitly requires the action at issue to be “issuing” a written notice to appear. The “notice to appear” issued by the district clerk was not issued by a peace officer. And while a peace officer might have delivered the notice to Appellant, a peace officer did not issue it.

In some situations, including traffic offenses, a peace officer can issue a notice to appear in lieu of a traditional arrest.⁷ Though this “notice to appear” procedure is referred to as an “arrest,” it is one where the offender is immediately released rather than taken to a magistrate or to jail.⁸ It is a substitute for a traditional arrest. That “notice to appear” type of arrest is clearly what the court-cost statute was referring to when it imposed a $5 fee for a peace officer issuing a notice to appear. In fact, that subdivision applies the $5 fee to both a “notice to appear” and to an “arrest without a warrant.”⁹ The provision plainly applies to the officer's arresting function in connection with charging an offense. A “notice to appear” issued by a district clerk does not perform that function, even if a peace officer ends up delivering that notice while the defendant is incarcerated.

In Wilbanks, the Dallas Court of Appeals held that a clerk-issued “notice to appear” did not support the imposition of the $5 fee: “The ‘Notice to Appear’ in the record before this Court was issued by the District Clerk and not a peace officer.”¹⁰ However, the court did not say whether the defendant was incarcerated at the time he received the notice.¹¹ The court of appeals in the present case (also Dallas) relied upon the defendant's incarceration, since a notice would have to be channeled by law enforcement authorities to a defendant being held in jail.¹² The Texarkana Court of Appeals has likewise held that the defendant's incarceration justifies the fee for a clerk-issued notice: “As for the $5.00 notice to appear fee, the record in cause number 06-24-00006-CR shows that a notice to appear for trial was hand-delivered to Anderson while in custody.”¹³ While these opinions are all unpublished, we can already see that multiple jurisdictions are charging the $5 fee for clerk-issued notices ¹⁴ and that multiple courts of appeals are upholding those fees if the defendant is incarcerated at the time. In fact, the Texarkana court appears to have influenced the Dallas court. Before this turns into a torrential flood of cases, we should stop this practice now.

Because the Court refuses review, I respectfully dissent.

FOOTNOTES

1.   Whitfield v. State, No. 05-23-00407-CR, 2025 WL 1644228, *2 (Tex. App.—Dallas June 10, 2025) (not designated for publication).

2.   Id. (citing Anderson v. State, No. 06-24-00005-CR, 2024 WL 4096453, *5 (Tex. App.—Texarkana Sept. 6, 2024, no pet.) (not designated for publication)).

3.   Id.

4.   No. 05-24-00537, 2025 WL 1657265, *4 (Tex. App.—Dallas June 11, 2025) (not designated for publication).

5.   Milton v. State, 721 S.W.3d 300, 303 (Tex. Crim. App. 2025); Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

6.   Tex. Code Crim. Proc. art. 102.011(a)(1), (2) (West 2024) (emphasis added). Effective September 1, 2025, the amount charged under subdivision (2) was raised to $75. See id. art. 102.011(a)(2) (current); Acts 2025, 89th Leg., ch. 584 (H.B. 2282), § 1.

7.   See Tex. Transp. Code §§ 543.003 (“An officer who arrests a person for a violation of this subtitle punishable as a misdemeanor and who does not take the person before a magistrate shall issue a written notice to appear in court showing the time and place the person is to appear, the offense charged, the name and address of the person charged, and, if applicable, the license number of the person's vehicle.”), 543.004 (“(a) An officer shall issue a written notice to appear if: (1) the offense charged is: (A) speeding; (B) the use of a wireless communication device under Section 545.4251; or (C) a violation of the open container law, Section 49.031, Penal Code; and (2) the person makes a written promise to appear in court as provided by Section 543.005.”).

8.   See id. at 543.003.

9.   See supra at n.5 (citing subdivision (1)) and associated text.

10.   Wilbanks, 2025 WL 1657265, at *4.

11.   See id. Also, the State agreed in that case that the $5 fee was improper, see id. at 3, which might have influenced the appellate court.

12.   See supra at nn.2-3.

13.   Anderson, 2024 WL 4096453, at *5.

14.   See Whitfield, 2025 WL 1644228 (Collin County), Anderson, supra (Hopkins County).