Defendant’s Motion for Recall of Capias Pro Fine Warrant Issued for Non-Payment of Indigent Court Costs
Sarah Roland & Richard Gladden
CAUSE NO. _______________
STATE OF TEXAS	§	IN THE COUNTY CRIMINAL
	§	
vs.	§	COURT NO. _____
	§	
_______________________	§	_____________ COUNTY, TEXAS

TO THE HONORABLE JUDGE OF SAID COURT:
	COMES NOW ____________________, Defendant in the above captioned and numbered cause (hereafter “Defendant”), by and through his counsel, SARAH ROLAND, and pursuant to Articles 26.04(p) and 26.05(g) of the Texas Code of Criminal Procedure and the Fourteenth Amendment to the United States Constitution, hereby files this Motion for Recall of Capias Pro Fine Warrant Issued for Non-Payment of Indigent Court Costs, and in this connection would show unto the Court as follows:
I. FACTS
	On __________, 201__, Defendant was arrested for criminal mischief (Cause No. _____________). On _________, 201__, a Denton County magistrate found that Defendant was indigent and, the same day, appointed undersigned counsel to represent him. On __________, 201__, Defendant gained his release from pre-trial confinement on this charge upon posting a surety bond. 
	On __________, 201__, Defendant was arrested for four (4) additional criminal offenses, to wit: “assault” (Cause No. __________); “terroristic threat” (Cause No. __________); “interference with a 911 call” (__________); and, “harassment” (__________). On __________, 201__, the Denton County magistrate who had previously determined that Defendant was indigent again determined that Defendant was indigent and again appointed undersigned counsel to represent him. In each of the aforementioned five (5) cases, the Trial Court, by and through its Magistrate, found by written order that Defendant possessed insufficient financial resources to offset, in whole or in part, the cost of legal services and related expenses.1
	On __________, 201__, Defendant, who had remained confined in the Denton County jail continuously since his arrest on __________, 201__, entered a “jail plea” of nolo contendere to each of aforementioned five (5) pending criminal charges; and the Trial Court entered corresponding “Judgment(s) of Conviction and Sentence” in each case.2 As reflected by these judgments, no fines were entered as punishment in any of these five (5) cases; and Defendant’s various terms of confinement were ordered to run concurrently in each case. Most significant for purposes of this motion, however, is that in each of the aforementioned judgments the Trial ordered that Defendant pay “court costs” and “fees,”3 which included court appointed attorney’s fees in the amount of $________ in each case.4
	At the time the aforementioned judgments were entered, the record contained no evidence whatsoever that Defendant was financially capable of paying either the court costs or fees (including attorney’s fees) that were imposed by the judgments. Nor did the aforementioned judgments purport to include such a finding. On __________, 201__, Defendant discharged his term(s) of confinement with credit for time served, and was released from the Denton County Jail. 
	On __________, 201__, without notice or an opportunity to be heard, the Trial Court, sua sponte issued five (5) capias pro fine warrants for Defendant’s arrest based solely upon his non-payment of “court costs and fees” as imposed by the foregoing judgments.5 At the time the five (5) capias pro fine warrants were issued, the record contained no evidence whatsoever that Defendant was then (or presently is) financially capable of paying either the “court costs” or “fees” (including attorney’s fees) imposed in the Judgment(s) of Conviction. Nor did the Trial Court, when issuing the aforementioned capias pro fine warrants, purport to make such a finding.
II. RELIEF SOUGHT
	For the reasons that follow, Defendant moves the Court to immediately recall the five (5) capias pro fine warrants. In summary, Defendant says the Trial Court’s imposition of court costs and fees in the five (5) judgments violated Defendant’s statutory and constitutional rights under Articles 26.04(p) and 26.05(g) of the Texas Code of Criminal Procedure and under the Substantive Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Furthermore, Defendant says the Trial Court’s sua sponte issuance of the aforementioned capias pro fine warrants was wholly without legal authority under Texas law, and that as they were issued without first affording Defendant with notice and an opportunity to be heard, their issuance deprived, and their execution would plainly deprive, Defendant of his constitutional right to procedural due process guaranteed by the Fourteenth Amendment to the United States Constitution.
III. ARREST AND CONFINEMENT OF AN INDIGENT DEFENDANT, DUE TO FAILURE TO PAY  COURT APPOINTED ATTORNEY’S FEES, VIOLATES TEXAS STATUTORY LAW
Article 26.05(g) of the Texas Code of Criminal Procedure provides that:
“If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is able to pay.” [Italics added.]
Article 26.04(p) of the Texas Code of Criminal Procedure provides that:
“A defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant’s financial circumstances occurs. If there is a material change in financial circumstances after a determination of indigency or nonindigency is made, the defendant, the defendant’s counsel, or the attorney representing the state may move for reconsideration of the determination.” [Italics added.]
	In the present case, Defendant was judicially determined to be indigent on May 21, 2010, and on July 8, 2010; and after the latter determination (on July 8, 2010) he remained continuously confined in the Denton County Jail until his “jail plea” on October 1, 2010. As the result of these findings of Defendant’s indigence, Article 26.04(p) of the Texas Code of Criminal Procedure required that Defendant thereafter be “presumed to remain indigent for the remainder of the proceedings.” The Trial Court, when imposing “court costs and fees” (including attorney’s fees) in its Judgment of Conviction, made no finding that Defendant had become “non-indigent”; and when these court costs and fees were imposed (in the aforementioned judgments) there was no evidence in the record to support such a finding of “non-indigency.” Under these circumstances, that portion of the Trial Court’s Judgment imposing “court costs and fees” is void. It must be deleted from the Judgment as a matter of law, see Mayer v. State, 274 S.W.3d 898, 901–902 (Tex.App.—Amarillo, 2008), aff’d, 309 S.W.3d 552, 556 (Tex.Crim.App. 2010); and it may not validly be enforced by issuance of a capias pro fine warrant. 

IV. ARREST AND CONFINEMENT OF AN INDIGENT DEFENDANT, DUE TO FAILURE TO PAY  COURT COSTS GENERALLY, IS FLAGRANTLY UNCONSTITUTIONAL
	A. Substantive Due Process and Equal Protection
	Defendant has completed his term of confinement, and the sole purpose of the Trial Court’s capias pro fine warrant is to confine Defendant due to his failure to pay the “court costs and fees” imposed by the Trial Court’s judgment of conviction. Under these circumstances, the Trial Court’s capias pro fine warrant flagrantly contravenes federal constitutional law that has been settled for more than 40 years. See Tate v. Short, 401 U.S. 395, 396–98 (1971) (on certiorari from the Texas Court of Criminal Appeals, the United States Supreme Court held that requiring petitioner who was unable to pay accumulated fines of $425 in Corporation Court to remain at municipal prison farm a sufficient time to satisfy the fines at the rate of $5 for each day denied equal protection); Williams v. Illinois, 399 U.S. 235, 240–42 (1970) (holding that the Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status); Ex parte Minjares, 582 S.W.2d 105, 109 (Tex.Crim.App. 1979) (op. on reh’g) (noting that “[i]t is a matter of constitutional law that a defendant ‘may not be imprisoned because he is too poor to pay his accumulated traffic fines’”) (internal citations omitted). 
	Under Equal Protection and Substantive Due Process protections guaranteed by the Fourteenth Amendment, an indigent may not be imprisoned solely because he lacks the resources to pay a fine, court costs, or restitution. See Bearden v. Georgia, 461 U.S. 660, 667 (1983) (holding that the Fourteenth Amendment prohibits a State from revoking an indigent defendant’s probation for failure to pay a fine and restitution); Tate, supra, 401 U.S. at 399; Shafer v. State, 842 S.W.2d 734, 736 (Tex.App.—Dallas 1992, pet. ref’d) (acknowledging that the Equal Protection Clause of the United States Constitution’s Fourteenth Amendment prohibits the imprisonment of an indigent person for failure to immediately pay a fine) (internal citations omitted). 
	B. Procedural Due Process
	As demonstrated by civil rights actions successfully brought more than 20 years ago under Title 42 U.S.C. Section 1983, the Trial Court’s “jail first, inquire later” procedure constitutes a clear violation of Defendant’s constitutional right to procedural due process under the Fourteenth Amendment to the United States Constitution. It also exposes Denton County, the Sheriff of Denton County, and others acting under color of law, to liability for Defendant’s compensatory damages should he be arrested pursuant to the Trial Court’s capias pro fine warrants. See Doe v. Angelina County, Texas, 733 F.Supp. 245, 253 (E.D. Tex. 1990) (procedural due process requires that “before a government entity incarcerates a person for failure to pay a fine, it must provide some form of proceeding at which a court can inquire into a party’s reasons for not paying and offer alternatives to incarceration”).

PRAYER.
	WHEREFORE, PREMISES CONSIDERED, Defendant prays this Motion for Recall of Capias Pro Fine Warrant Issued for Non-Payment of Indigent Court Costs will in all things be granted.

Respectfully submitted,

_____________________
SARAH ROLAND
Texas Bar Number 24049077
1409 North Elm Street
Denton, Texas 76201
940/323-9305 (voice)
940-312-6830 (fax)
Attorney (Court-Appointed) for Defendant 

CERTIFICATE OF SERVICE
	This is to certify that a true and correct copy of the foregoing pleading was served by hand delivery on the Attorney of Record for the State of Texas in this case, __________________________; and by hand delivery on the Attorney for the Denton County Sheriff, _______________________; both on this _____ day of ________ 2011, in accordance with the Texas Code of Criminal Procedure.
_____________________
Sarah Roland

Notes
1. See Defendant’s Exhibit 1 (Comprising the Five (5) “Finding(s) Regarding Indigence and Order to Appear with Attorney”).
2. See Defendant’s Exhibit 2 (Comprising the five (5) “Judgment(s) of Conviction and Sentence”).
3. Ibid.
4. See Defendant’s Exhibit 3 (“Accounts Payable” Check Stubs issued by Denton County Auditor’s Office).
5. See Defendant’s Exhibit 4 (Comprising five “Warrant Sign-Off Sheets”).