Article 26.05(g) Bars Attorney’s Fees Without Present Ability to Pay | Jones v. State (2026)

Dustin Lee Jones v. The State of Texas, 07-25-00386-CR, May 19, 2026.

On appeal from 181st District Court, Randall County, Texas

Synopsis

Article 26.05(g) does not permit a trial court to assess reimbursement of court-appointed attorney’s fees after adjudication unless the record shows the defendant has present financial resources and present ability to offset those costs. In Jones v. State, the Amarillo Court of Appeals deleted newly assessed attorney’s fees because the defendant’s indigency had not changed and the record affirmatively showed no present ability to pay.

Relevance to Family Law

Although Jones is a criminal case, its reasoning matters to Texas family law litigators because the decision reinforces a broader due-process and record-based principle that appears repeatedly in divorce, SAPCR, enforcement, and property litigation: payment obligations cannot rest on speculation about future ability to pay when the governing law requires proof of present ability, present resources, or changed circumstances. Family lawyers see this same evidentiary dynamic in fee-shifting disputes, enforcement proceedings, contempt risk analysis, child-support modification, supersedeas strategy, and indigency-based access-to-courts issues. The practical lesson is familiar and transferable—if the court is being asked to impose a financial obligation tied to ability to pay, the record must contain current evidence, not assumptions, and counsel should force that distinction clearly at the hearing.

Case Summary

Fact Summary

Dustin Lee Jones pleaded guilty to continuous violence against the family and, pursuant to a plea agreement, received deferred adjudication community supervision. At that original stage, attorney’s fees of $1,000 were assessed, and the later appellate court treated any challenge to that original assessment as untimely.

The case returned to the trial court when the State moved to adjudicate. After the adjudication hearing, the trial court found the alleged violations true, adjudicated Jones guilty, revoked community supervision, and sentenced him to ten years’ imprisonment. A new bill of costs issued after adjudication included $3,090 in attorney’s fees, meaning an additional $2,090 had been assessed beyond the original amount.

On appeal, the case came forward in the Anders posture, but counsel still asked the court to reform the bill of costs by deleting certain improper charges, including newly assessed attorney’s fees. The appellate record showed Jones remained indigent and told the trial court he did not have the present ability to pay fees. Nothing in the record reflected a finding that he had present financial resources sufficient to offset the cost of appointed counsel.

Issues Decided

• Whether Code of Criminal Procedure article 26.05(g) allows assessment of additional court-appointed attorney’s fees after adjudication when the record does not show present financial resources and present ability to pay.
• Whether newly assessed attorney’s fees must be deleted when the defendant’s indigency status has not materially changed.
• Whether a defendant’s acknowledgment of possible future ability to pay can support assessment of attorney’s fees under article 26.05(g).
• Whether the appellate court could reform the bill of costs and related withdrawal orders to remove improperly assessed attorney’s fees.

Rules Applied

The court relied primarily on article 26.05(g) of the Texas Code of Criminal Procedure, which permits reimbursement for court-appointed counsel only if the court determines that the defendant has financial resources enabling him to offset, in whole or in part, the costs of legal services provided.

The court also applied controlling authority from the Texas Court of Criminal Appeals:

• Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010), holding that a trial court errs by ordering reimbursement of court-appointed attorney’s fees without record evidence demonstrating the defendant’s financial resources to offset those costs.
• Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013), emphasizing that article 26.05(g) requires a present determination of financial resources and does not permit speculation about future resources.

The Amarillo court also cited intermediate appellate authority recognizing that, absent a material change in financial circumstances, an indigent defendant remains indigent for purposes of appointed-counsel reimbursement analysis. In addition, the court distinguished general inquiries about future ability to pay costs and fines under article 42.15 from the separate and more specific present-ability requirement applicable to attorney’s fees under article 26.05(g).

Application

The court treated the case as involving two different attorney’s-fee assessments, and that distinction drove the result. First, the original $1,000 assessment entered when Jones received deferred adjudication remained in place because he had agreed to it as part of the plea bargain, and any appellate attack on that earlier assessment was no longer timely. So the court did not revisit that part of the cost structure.

The problem arose with the second bill of costs entered after adjudication. That bill increased the attorney’s-fee amount to $3,090. The appellate court examined the record for the predicate that article 26.05(g) requires: evidence of present financial resources and present ability to offset the costs of appointed counsel. It found none. To the contrary, the record showed Jones remained indigent, his indigency status had not changed, and he affirmatively told the trial court he lacked present ability to pay.

The court then addressed a common trial-level confusion: a defendant’s statement that he may be able to pay in the future does not satisfy article 26.05(g). The statute requires a present determination, and Cates forbids courts from filling evidentiary gaps with assumptions about possible future resources. The trial court’s inquiry about future ability to pay costs, fees, and fines could not substitute for a legally sufficient finding about present ability to reimburse appointed-counsel fees. On that record, the newly imposed attorney’s fees were unsupported and had to be deleted.

Because the improper assessment had already been incorporated into the bill of costs and could affect withdrawals from an inmate trust account, the court ordered practical corrective relief. It deleted the additional $2,090 in attorney’s fees, removed any provision for future collection of those court-appointed attorney’s fees, and directed the district clerk to prepare an amended bill of costs and conforming withdrawal documentation.

Holding

The Amarillo Court of Appeals held that article 26.05(g) bars reimbursement of court-appointed attorney’s fees unless the record shows the defendant has present financial resources and present ability to offset the costs of legal services. Where the defendant remains indigent and the record contains no evidence of a material change in financial condition, newly assessed attorney’s fees cannot stand.

The court further held that any challenge to attorney’s fees originally assessed at the time deferred adjudication was imposed was untimely in this appeal. Accordingly, the court left intact the original $1,000 fee assessment but deleted the later-added $2,090 assessed after adjudication.

The court also held that any provision authorizing future collection of those improperly assessed post-adjudication attorney’s fees had to be removed, and it extended that reformation to any withdrawal orders affecting the defendant’s inmate account.

Practical Application

For family law litigators, Jones is a useful reminder that fee orders are only as durable as the evidentiary record supporting them. In divorce and SAPCR practice, courts routinely confront requests for interim fees, trial fees, appellate fees, enforcement fees, amicus fees, ad litem fees, and sanctions with monetary components. While the governing statutes differ from article 26.05(g), the strategic principle is the same: if the requested award depends on present ability to pay, present financial condition, or a change in circumstances, the proponent must prove that element with competent, current evidence.

This matters in several recurring contexts. In enforcement and contempt-adjacent proceedings, lawyers should distinguish between a client’s long-term earning potential and present ability to satisfy a monetary obligation. In modification cases, counsel should insist on a clean record separating current resources from speculative future income. In disproportionate-property and reimbursement disputes, the same discipline helps when the court is being asked to equalize burdens through fee awards or temporary orders. And when an indigent litigant is facing fee exposure—whether for ad litem, discovery sanctions, or enforcement-related attorney’s fees—Jones provides a strong analog for objecting to findings built on conjecture rather than evidence.

Practically, the case also underscores the importance of preserving cost and fee complaints at every procedural stage. A fee assessment accepted in an earlier agreed order may become difficult or impossible to attack later, while a newly imposed fee in a subsequent order may remain fully reviewable. For family lawyers, that means scrutinizing mediated settlement agreements, temporary orders, enforcement orders, and final decrees for fee language that may harden into an unassailable obligation if not challenged promptly.

Checklists

Build a Present-Ability Record

• Obtain current testimony on income, assets, cash flow, debts, and access to liquid funds.
• Separate present resources from speculative future earning capacity.
• Introduce current financial statements, pay records, tax returns, or sworn inventories when ability to pay is disputed.
• Ask the court for an express present-tense finding if the fee request depends on current ability to pay.
• Object if the opposing side relies on generalized earning potential without evidence of present resources.

Challenge Unsupported Fee Assessments

• Compare the operative order to prior orders to determine whether the fee is newly assessed or merely carried forward.
• Identify whether the record shows a material change in the client’s financial circumstances.
• Preserve a complaint that the evidence does not support present ability to pay.
• Request deletion or reformation of the improper fee language, not just reversal in the abstract.
• Review any collection mechanisms—wage withholding, receiver provisions, trust-account withdrawals, turnover language—to ensure they do not enforce an unsupported award.

Protect Agreed Orders and Finality Concerns

• Scrutinize agreed temporary orders, mediated settlement terms, and final decrees for embedded fee obligations.
• Advise the client that agreed or unchallenged fee terms may become difficult to attack later.
• Distinguish clearly between fees agreed at one procedural stage and additional fees imposed later.
• Calendar appellate and post-judgment deadlines immediately when fees are awarded.
• If the case posture changes later—such as enforcement, modification, or remand—reassess whether new fee amounts require new evidentiary support.

Use the Case in Family Law Hearings

• Cite Jones for the proposition that present ability cannot be inferred from possible future ability.
• Pair Jones with family-law-specific authority requiring evidence of current finances or changed circumstances.
• Use the opinion to resist fee awards based on conclusory testimony.
• Emphasize that indigency or limited means, once shown, cannot be disregarded without record evidence of change.
• Ask the court to make oral findings that track the statutory standard governing the specific fee request at issue.

Avoid the Non-Prevailing Party’s Mistakes

• Do not assume the court can impose a monetary obligation first and sort out ability to pay later.
• Do not allow broad questions about “future ability” to substitute for proof of present capacity.
• Do not overlook bills of costs, fee appendices, or post-hearing clerk-generated assessments.
• Do not wait until a later appeal to attack an earlier agreed fee award if the challenge is available now.
• Do not ignore downstream enforcement paperwork that may continue collecting a fee the record does not support.

Citation

Dustin Lee Jones v. The State of Texas, No. 07-25-00386-CR, 2026 Tex. App. LEXIS ___ (Tex. App.—Amarillo May 19, 2026, no pet.) (mem. op., not designated for publication).

Full Opinion

Read the full opinion here

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