Defendants Must Object at Trial to Raise Lack of On-The-Record Ability-To-Pay Inquiry on Appeal

FOURTH COURT UPDATE

By Justice H. Todd McCray

This court’s criminal appellate docket regularly includes cases briefed pursuant to Anders v. California, 386 U.S. 738 (1967), in which appellate counsel, appointed to represent indigent defendants, assert there are no arguable grounds for appeal. Anders and its progeny require this court to perform an independent review of those cases to determine whether any arguable appellate issues are present.

Recently we have identified several potential unraised issues relating to Article 42.15 of the Texas Code of Criminal Procedure. Article 42.15(a-1) specifies a trial court, during or immediately after imposing a sentence, must assess the defendant’s ability to pay fines and costs included in the sentence. See Tex. Code Crim. Proc. art 42.15(a-1). Article 42.15(a-2) mandates that this inquiry take place on the record—a requirement added in 2021. See Tex. Code Crim. Proc. art 42.15(a-2); Act of May 24, 2021, 87th Leg., R.S., Ch. 106 § 1, 2021 Tex. Gen. Laws 202.

In one representative example, Montejano v. State—where a defendant was convicted of evading arrest or detention while using a vehicle—the trial court sentenced the defendant to four years and six months of confinement and imposed court costs of $430, but failed to conduct an ability-to-pay inquiry on the record. No. 04-23-00079-CR, 2024 WL 1543286 *1 (Tex. App.—San Antonio April 10, 2024, no pet.) (mem. op., not designated for publication). Characterizing the absence of an on-the-record inquiry as an “arguable ground of appeal,” we remanded the matter for additional briefing to determine whether “reversible error [occurred] if the record does not show that the trial court conducted an inquiry on the record regarding the defendant’s ability to pay court costs.” Id. We observed we had “not found any mandatory authority on this question from the Court of Criminal Appeals, and there [wa]s not yet a clear, well-established consensus among our sister courts.” Id. at *2; accord Almeida v. State, 702 S.W.3d 569, 572 (Tex. App.—San Antonio 2024, no pet.).

This issue remained unsettled until the Texas Court of Criminal Appeals’ September 2024 decision in Cruz v. State, 698 S.W.3d 265 (Tex. Crim. App. 2024). In Cruz, the defendant was found guilty of aggravated kidnapping in August 2021 and sentenced to thirty years in prison, a fine of $8,000, and $325 in court costs and fees. Id. at 26667. The judgment recited that the court had “conducted an inquiry into Defendant’s ability to pay” the fine, costs, and fees, but there was nothing else in the record demonstrating the inquiry had occurred. Id. at 267. There was also nothing in the record reflecting whether the defendant requested an inquiry or objected to a failure to conduct one on the record. Id.

Drawing on its framework of error preservation rules from Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993), the Court of Criminal Appeals concluded an ability-to-pay inquiry is a category-three right—a forfeitable right that applies only when affirmatively invoked. See Cruz, 698 S.W.3d at 269.

Explaining this categorization, the court stated an ability-to-pay inquiry is “not fundamental to the adjudicatory system; it is a post-trial procedure that has nothing to do with adjudication; it does not ensure a jury, a fair trial, a correctly informed sentencing judge, or a defendant’s ability to understand the proceedings against him.” Id. The court also noted that the Texas Code of Criminal Procedure contains various post-trial means for addressing a defendant’s financial hardship, including Article 43.035(a)’s provision for a hardship hearing. Id. (citing Tex. Code Crim. Proc. art 43.035(a)). Accordingly, the court held Cruz had “forfeited his right to the inquiry by not objecting.” Id. at 270.

We subsequently applied the Cruz holding to Montejano, which had been re-briefed, and held Montejano waived his right to an ability-to-pay inquiry on the grounds that he failed to object when the trial court failed to address his ability to pay at sentencing. Montejano, No. 04-23-00079-CR, 2024 WL 4965686, at *2.

The Cruz court also determined that the right to have the ability-to-pay inquiry on the record is a category-three right—specifically noting that Article 42.15(a-2) provides that a defendant may waive the requirement but does not specify a formal waiver. See Cruz, 698 S.W.3d at 270 (citing Tex. Code Crim. Proc. art. 42.15(a-2)). Accordingly, moving forward, in order to preserve these issues for appeal, defendants must not only object to a failure to undertake an ability-to-pay inquiry, but also to the failure to make any such inquiry on the record.

Justice H. Todd McCray was elected to serve on the Fourth Court of Appeal in November 2024. Prior to the election, Justice McCray practiced in Texas trial and appeal courts for 34 years, including service as a prosecutor in both the Grayson County Attorney’s Office and the Bexar County District Attorney’s Office. Justice McCray obtained his B.B.A degree from the University of Texas at Austin and his Juris Doctor degree from St. Mary’s University School of Law. He was Board Certified in Criminal Law in 1997. Aron Cooper and John Fredland, staff attorneys for Justice McCray, assisted in the preparation of this article. Aron Cooper has been a staff attorney for Justice McCray since January 2025. He previously worked as a central staff attorney for the Fourth Court of Appeals. John Fredland has been a staff attorney for Justice McCray since February 2025. He retired from the United States Air Force Judge Advocate General’s Corps after 20 years of active-duty at the grade of lieutenant colonel.