Attacking the Bill of Costs: Seventh Court Strikes Attorney’s Fees and Duplicate Costs for Lack of ‘Ability to Pay’ Findings
Memorandum Opinion by Chief Justice Parker, 07-25-00232-CR, January 28, 2026.
On appeal from the 320th District Court, Potter County, Texas.
Synopsis
The Seventh Court of Appeals modified a trial court’s judgments to strike $1,600 in attorney’s fees, a premature time payment fee, and duplicate court costs assessed in a consolidated proceeding. The court held that without evidence of a defendant’s ability to pay, and given the statutory prohibition against duplicate costs in multiple cases heard together, the trial court erred in its assessment of the bill of costs.
Relevance to Family Law
For the family law practitioner, this criminal “crossover” highlights a critical appellate bridge regarding the assessment of fees and costs in consolidated proceedings. In high-conflict litigation—such as a divorce consolidated with a separate SAPCR or an enforcement action—counsel must be vigilant against the “double-dipping” of court costs by District Clerks. Furthermore, while the Texas Family Code provides specific vehicles for attorney’s fee shifts, the underlying due process requirement that a party must have the “ability to pay” before being saddled with the opponent’s legal fees remains a potent defensive shield, particularly when a Rule 145 Affidavit of Indigency is in play.
Case Summary
Fact Summary
Josue Pena entered a guilty plea for online solicitation of a minor and was placed on deferred adjudication. Subsequently, the State moved to adjudicate guilt while simultaneously filing a new charge against Pena for failure to register as a sex offender. Both matters—the motion to adjudicate and the new criminal charge—were heard in a single, consolidated proceeding. The trial court adjudicated Pena guilty on the original solicitation charge (sentencing him to eighteen years) and found him guilty of the failure to register charge (sentencing him to eighteen months).
In the solicitation case, the trial court assessed $1,600 in attorney’s fees and a $15 time payment fee. In both cases, the trial court assessed full bills of costs. Pena, who had been appointed counsel throughout the proceedings, challenged these assessments on appeal, arguing that his indigent status and the consolidated nature of the hearings made the fees and duplicate costs improper.
Issues Decided
- Did the trial court err by assessing attorney’s fees against a defendant without a finding of a material change in his financial ability to pay?
- Is a “time payment fee” premature if assessed before the expiration of the 30-day statutory grace period for payment?
- Can a trial court assess separate court costs for multiple cause numbers that are adjudicated in a single proceeding?
Rules Applied
The court relied on Mayer v. State, which establishes that a defendant’s financial resources must be established by the record before attorney’s fees can be assessed. Under the Texas Code of Criminal Procedure, once a defendant is determined to be indigent, they are presumed to remain indigent unless a material change in financial circumstances is proven.
Regarding costs, the court applied Texas Code of Criminal Procedure art. 102.073, which mandates that in a single criminal action where a defendant is convicted of two or more offenses, court costs may only be assessed once. Additionally, Dulin v. State was cited for the proposition that time payment fees are premature if the 30-day window following the judgment has not yet lapsed.
Application
The Seventh Court found that because Pena had been appointed counsel, a presumption of indigence was legally operative. The record was devoid of any evidence suggesting that Pena’s financial resources had improved. Consequently, the assessment of $1,600 in attorney’s fees lacked a factual and legal basis.
The court then addressed the “duplicate costs” issue. Because the trial court heard the motion to adjudicate and the new failure to register charge together, they constituted a single “proceeding.” Assessing a full bill of costs in both causes violated the prohibition against duplicate recovery. Finally, the $15 time payment fee was found to be premature because it was assessed at the time of the judgment, rather than after the 30-day period required by statute.
Holding
The Court modified the judgments in both cases. In the online solicitation case (07-25-00231-CR), the court deleted the $1,600 in attorney’s fees and the $15 time payment fee. In the failure to register case (07-25-00232-CR), the court deleted the entire bill of costs to eliminate the duplicate assessment.
The Court further struck the findings in both judgments stating that Pena had the financial resources to offset the cost of legal services. The judgments were affirmed as modified.
Practical Application
Texas Family Law litigators often face “consolidated” hearings involving cross-petitions, enforcements, and modifications. This case provides the following strategic takeaways:
- Audit the Bill of Costs: In consolidated cases, ensure the clerk has not charged for “Citation” or “Jury Fees” twice for a single trial.
- The Presumption of Indigence: If a party has successfully filed a Rule 145 Affidavit, use the Mayer logic to argue that the burden shifts to the opposing party to show a material change in financial circumstances before attorney’s fees can be shifted.
- Premature Fees: Be wary of administrative fees or interest-based fees assessed immediately upon the signing of a decree, as statutory grace periods often apply.
Checklists
Protecting the Indigent Client from Fee Shifting
- Monitor the record for any “Statement of Inability to Afford Payment of Court Costs.”
- Object to any proposed Order or Decree that assesses attorney’s fees without an explicit finding of the client’s “ability to pay.”
- Ensure that any “material change” in the client’s finances is not merely speculative but supported by evidence if the opposition seeks fees.
Auditing Consolidated Bills of Costs
- Compare the Bill of Costs in Cause A and Cause B for identical line items (e.g., courthouse security fees, clerk fees).
- File a Motion to Tax Costs if the District Clerk refuses to consolidate the bills after a unified trial.
- Cite Article 102.073 by analogy in civil proceedings to argue against the inequity of duplicate “administrative” costs.
Citation
Pena v. State, Nos. 07-25-00231-CR & 07-25-00232-CR (Tex. App.—Amarillo Jan. 28, 2026, no pet.) (mem. op.).
Full Opinion
Family Law Crossover
In the realm of Texas Family Law, Pena is a potent weapon for defense in enforcement actions. When an obligee seeks to recover attorney’s fees under Tex. Fam. Code § 157.167, the obligor should utilize the “Ability to Pay” doctrine found in Pena and Mayer to argue that such fees are unrecoverable if the obligor is indigent and no material change in circumstances has occurred.
Furthermore, in complex divorce litigation where multiple cause numbers are often floating—such as a separate protective order (Title 4) and a suit for dissolution of marriage (Title 1)—litigators should use Pena to strike down duplicate “consolidated court costs.” If the cases were heard together for judicial economy, the client should only pay the “economy” price for the court’s time, not a doubled administrative tax. This is a strategic point of preservation that can save clients thousands in unnecessary costs over the life of a multi-suit dispute.
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