The Texas Observer

Houston Attorney Crusading Against ‘Unconstitutional’ Court Fees

Jani Maselli Wood, Assistant Public Defender, Harris County Public Defender's Office

Houston Attorney Crusading Against ‘Unconstitutional’ Court Fees

In Houston, one attorney is making real change by quibbling over loose change.

Jani Maselli Wood, an assistant public defender in Harris County, is waging a one-woman war against the way Texas uses the hundreds of different fees it collects from people involved in the criminal justice system. Most recently, Texas’ 1st Court of Appeals agreed with Wood that the $250 “DNA record fee” charged to her client was unconstitutional because the state splits that money between the highway fund and the general fund for criminal justice planning. Neither pot pays directly for the expense of trying a criminal case—ostensibly the purpose of court costs. Wood successfully argued that the $250 constitutes an unlawful tax.

That’s no small potatoes for an individual—especially for the indigent clients Wood represents, since $250 is almost a full week’s pay at minimum wage. But Wood has also gone to bat over 34 cents. “Obviously, it’s 34 cents for [my client], but how much is it across the state?” she says. “It’s just not right, so I keep chipping away.”

Those chips add up. Court costs and fees contribute hundreds of millions of dollars a year that lawmakers rely on to accomplish the one task they’re constitutionally obligated to complete during their brief biennial parley: passing a budget. A 2014 study by the Office of Court Administration identified 143 distinct criminal court costs and 211 different civil fees on the books that funneled more than $350 million into the state kitty, more than a quarter of which went to the general fund—which is to say, not to courts. In fact, some mandated expenses, such as providing support for county indigent defense programs, are paid entirely out of fees rather than the general revenue fund. That’s one way legislators keep from raising taxes. The poor, who are disproportionately affected by the criminal justice system, end up footing the bill.

Case law requires that court fees be used for their stated purpose, but the Office of Court Administration review found that 14 fees didn’t even have a named purpose. Many more fees were imposed by statutes that suggested a purpose but didn’t restrict the money’s use to it. In other words, court costs are a ripe area for constitutional challenge.

So why is Wood’s crusade, so far, so lonely? Because court cost constitutionality is not a very lucrative area of law. “I could not do this sort of litigation if I was in private practice,” Wood says. “No client would pay me to do it. And no judge would pay me to do it if I was court appointed.” But her employer, the Harris County public defender, is on board. “My boss is very supportive of impact litigation and systemic change.”

Before Wood’s efforts, many courts wouldn’t even provide an itemized bill of what citizens were being charged. Now, every case she wins builds legal precedent for improved honesty in budgeting.

The state, as it usually does when it loses, appealed the 1st Court ruling to the Court of Criminal Appeals, Texas’ highest court for criminal cases. Their ruling is likely months away. But Wood isn’t slowing down. She says, “I told my husband, it’s probably going to be a decade before I’m done.”