The waiver of fines and costs has long been a tool for judges when dealing with defendants that have an inability to pay. When and how waiver can be used, however, has changed drastically in the last two legislative sessions. In this entry, we will look at the evolution of waiver before and after recent legislative sessions.
Waiver prior to September 1, 2017
For a judge to be able to waive fines or costs:
1. The defendant had to default;
2. The defendant had to be indigent or have been a child at the time of the offense; and
3. Discharging the fine and costs through community service or another method would have to impose an undue hardship.
While the statute anticipated the waiver of fines or costs, the general consensus prior to the 2017 change was that waiver was an all or nothing proposition at the time of waiver. Partial waiver was not contemplated, and would only have been realistically possible if a defendant was on a payment plan and after making some payments the judge waived the remainder—likely after a change in financial circumstances.
Further, due to the requirement of default, a judge didn’t have clear authority to waive until after there was an order to pay or discharge—because without that order in the judgment, the defendant could not default. So, even if a judge considered a defendant indigent and thought waiver may be appropriate, they would still have to wait until default.
Waiver on or after September 1, 2017
A few important changes happened with the passage of H.B. 351 and S.B. 1913 in 2017. First, the bills authorized courts to waive “all or part of a fine or costs” imposed on a defendant. Second, they removed the requirement for a defendant to default. Third, courts could order waiver if the defendant was indigent or did not have sufficient resources or income to pay all or part of the fine or costs.
For a judge to waive all or part of fines or costs:
1. The defendant had to be indigent or not have sufficient resources or income to pay or have been a child at the time of the offense; and
2. Discharging the fine and costs through community service or other method would have to impose an undue hardship.
These changes also coincided with the requirement for courts to inquire into a defendant’s ability to pay with any in-court plea. With this new requirement and the removal of default as a prerequisite, judges could determine indigence and hardship at the time of judgment. This allowed judges to waive fines or costs “on the front end” so to speak. Additionally, the “all or part” addition clearly permitted judges to be very specific about what they were waiving. For instance, a judge could waive specific court costs that were assessed, but leave some costs and the fine in place. Alternatively, the judge could waive the fine, yet require the payment or discharge of all or part of the costs.
Waiver on or after January 1, 2020
With the passage of S.B. 346 in 2019, waiver changed again on January 1, 2020. Now, under Art. 45.0491, the waiver of fines is distinct from the waiver of costs. Importantly, the requirements for waiver are different for fines vs. costs now.
For a judge to waive all or part of a fine:
1. The defendant has to be indigent or not have sufficient resources or income to pay or have been a child at the time of the offense; and
2. Discharging the fine and costs through community service or other method imposes an undue hardship.
For a judge to waive all or part of the costs:
1. The defendant has to be indigent or not have sufficient resources or income to pay or have been a child at the time of the offense.
Notably, undue hardship is no longer a requirement for a judge to waive costs. With one less hoop to jump through, it is now easier to waive costs than it is to waive fines.
How have these changes altered the practice in your court?