Can A Court Charge A Defendant For An Officer’s Overtime For A Traffic Ticket?

We recently had an issue with a court in North Texas where the case had to be set for trial in order to get the prosecutor to back down off a conviction recommendation for a speeding ticket.  The client was alleged to have been speeding 26miles over the posted speed limit.  This high speed caused the prosecutor to be reluctant to offering a deal to protect the client’s record.  Because of this, we had to set it for trial.  At the trial setting, the prosecutor re-evaluated their stance and decided to offer deferred adjudication.  Deferred adjudication is a way that people can protect their record so long as they do not get any new tickets during the term of the deferral period.

When we approached the bench to resolve the case, the prosecutor had stated as a side bar that the officer was not on overtime and that the overtime fees could be waived.  This statement led to a discussion at the bench as to whether or not an officer’s overtime could be allowed if they did not testify at trial?  This article goes into the debate about whether or not it is proper to charge a defendant overtime.  If you would like to discuss your particular case with our team of attorneys regarding your North Texas criminal case, feel free to call our office at 214-321-4105.

Art. 102.002. WITNESS FEES.

The relevant statute related to an officer’s overtime is the Code of Criminal Procedure Article 102.002.  This code provision states the following:

The justices of the peace and municipal courts shall maintain a record of and the clerks of district and county courts and county courts at law shall keep a book and record in the book:

1) the number and style of each criminal action before the court

2) the name of each witness subpoenaed, attached, or recognized to testify in the action; and

3) whether the witness was a witness for the state or for the defendant.

c) Except as otherwise provided by this subsection, a defendant is liable on conviction for the fees provided by this article for witnesses in the defendant’s case.

Art. 102.011. REIMBURSEMENT FEES FOR SERVICES OF PEACE OFFICERS.

This section of the article gets to the real argument made by prosecutors and judges alike that they are justified in charging the defendant for overtime associated with testifying at trial.  Article 102.011(2)(i) states the following:

• “(i) In addition to reimbursement fees provided by Subsections (a) through (e), a defendant required to pay reimbursement fees under this article shall also pay the costs of overtime paid to a peace officer for time spent testifying in the trial of the case or for traveling to or from testifying in the trial of the case. “

Because the statute is quite long regarding what can and cannot be requested as reimbursement, the main language of the statute that we are concerned with here is contained in 102.011(a).  The language contained in this section of the statute states the following:

• “(a) A defendant convicted of a felony or a misdemeanor shall pay the following reimbursement fees to defray the cost of the services provided in the case by a peace officer:”

The statute then goes on to outline categories that are eligible for reimbursement.

The Judge’s Perspective On Officer Overtime

In the case we had set for trial, the judge’s perspective was that anytime an officer travels to testify or testifies that is eligible for reimbursement.  So, as in our case, where the officer did not testify, in the judge’s opinion that would suffice to allow for the payment of overtime.  However, that is not what the statute says.  In order to get to that conclusion you would have to isolate Section 102.011(2)(i), and not read it in conjunction with the entire statute.  Let us break down section (i) into the 2 main parts:

1. a defendant required to pay reimbursement fees under this article
2. shall also pay the costs of overtime paid to a peace officer for time spent testifying in the trial of the case or for traveling to or from testifying in the trial of the case.

Notice that you do not get to part 2 of section (i) without first ensuring that the defendant is “required to pay reimbursement fees”.  So what triggers a defendant’s requirement to pay reimbursement fees?

Reimbursement Fees and Convictions

A defendant is not required to pay reimbursement fees unless they are convicted of the crime they are alleged to have committed.  This is the ultimate requirement before an officer can be allowed to be recompensed for travel, testimony, etc.  Again, remember the language in the very first section of Article 102.011 that states clearly, “(a) A defendant convicted of a felony or a misdemeanor shall pay the following reimbursement fees to defray the cost of the services provided in the case by a peace officer:”.  This requirement has been bolstered by attorney general opinion 92-055.  The subject line of the opinion is as follows:

• Re: Disposition of fees for services performed by peace officers in misdemeanor cases

In the footnote of the opinion, the following statement was made that, “Although section 102.011 does not specify, we assume that the claim for a fee under this provision must necessarily be submitted to the court hearing the case, since it is the defendant who must pay the fee after conviction.”

Again, one can see that a conviction is necessary before overtime could be allowed.

How The Overtime Argument Applied to Our Case

Remember, that our defendant did plead the case on the date of the trial.  The officer did have to travel to the courthouse to testify, but ultimately did not.  The difference is that our client was offered deferred adjudication in exchange for not going to trial.  Deferred adjudication by its essence is the opposite of a conviction.  It is an option that is chosen by defendants to specifically avoid a conviction.  Therefore, reimbursement cannot be at issue based on the fact that Section 102.011 specifically requires that condition to be met prior to consideration of reimbursement of any fees.

Can A Court Charge A Defendant With Overtime?

The answer is maybe.  It depends on how the case was resolved at the trial setting.  If a deal was struck that avoids a conviction, then it most certainly should not be allowed.  If a judge tries to implement charges for reimbursement on a deferred adjudication plea, then they should be challenged.  However, if a case was pled to a conviction, then per the reading of the statute, it is probably within the judge’s discretion to allow the reimbursement charges.