Texas Courts of Appeals

Cruz v. State

NO. 14-21-00454-CR 05/04,2023

Issue:

Does the current version of CCP Art. 42.15(a-1), which requires the trial court to conduct an ability-to-pay inquiry on the record, apply retroactively?

Holding:

No. The court determined that it is constrained by its own prior precedent in Hernandez-Faced v. State, where the court held that, “[based] on the plain language of the amendment, the changes to Art. 42.15(a-1) retroactively applied only to fines, fees, and costs, not the hearing requirement.”  Per this precedent, then, because the defendant was convicted and sentenced before the effective date of the 2021 amendments to Art. 42.15(a-1), the amendments do not apply retroactively to this case. Notably, though, the majority opinion expresses dissatisfaction with its precedent, asserts that it believes that the plain language of the statute requires retroactive application of the 2021 amendments to Art. 42.15(a-1), and urges that “[t]he Court of Criminal Appeals can and should resolve this issue.” Read Opinion

Concurrence: (Wilson, J.) 

“The majority views Hernandez-Faced as ‘erroneous’ based on ‘little analysis.’ I disagree. The reasoning in Hernandez-Faced is correct; the changes to Art. 42.15(a-1) only apply retroactively with respect to fines, fees, and costs. Just as this court stated in Hernandez-Faced, the majority’s statutory interpretation of retroactivity in this case would lead to an absurd result.” Read concurrence.

Commentary:

Although the Fourteenth Court of Appeals ultimately followed its own precedent, the majority opinion clearly advocates for a different conclusion regarding the retroactive application of the 2021 amendments to Art. 42.15(a-1) and openly passes the baton to the Court of Criminal Appeals to provide a definitive answer.  Whether the CCA will grant discretionary review of the issue or will decline and thus tacitly approve of the Fourteenth Court of Appeals’ prevailing analysis in Hernandez-Faced remains to be seen.

On another note, the Fourteenth Court of Appeals holds here that a defendant’s right for the trial court to conduct an ability-to-pay inquiry on the record is a Marin-Category-Two right, which must be affirmatively waived by the defendant and cannot be forfeited by mere inaction. 

This means that unless the defendant affirmatively waives an ability-to-pay inquiry on the record, the defendant is not required to object to the lack of the inquiry or do anything else to preserve error, and he or she may complain about the matter for the first time on appeal. 

In light of this holding, and because the on-the-record requirement imposed by the amendment to Art. 42.15(a-1) is relatively new, trial prosecutors should take heed and remind trial judges of their obligations under the statute following a defendant’s conviction and the imposition of fines, fees, and court costs.