Akeem Denoise Dye v. the State of Texas ( 2021 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-19-00370-CR
AKEEM DENOISE DYE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 27th District Court
Bell County, Texas1
Trial Court No. 78148, Honorable John T. Gauntt, Presiding
June 14, 2021
MEMORANDUM OPINION
Before PIRTLE and PARKER and DOSS, JJ.
Akeem Denoise Dye, appellant, was convicted of two offenses and sentenced to
prison. In addition, the trial court assessed a $25 “time payment fee” against appellant.
See TEX. LOCAL GOV’T CODE ANN. § 133.103 (West 2008).2 On appeal, appellant
1 Originally appealed to the Third Court of Appeals, this case was transferred to this Court by the
Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001
(West 2013). Under Texas Rule of Civil Procedure 41.3, we follow the precedent of the transferor court in
the event of a conflict between that court’s precedent and our own. TEX. R. APP. P. 41.3.
2 Section 133.103 of the Texas Local Government Code was “redesignated” as article 102.030 of
the Texas Code of Criminal Procedure and amended by Acts of June 15, 2019, 86th Leg., R.S., ch.1352,
§§ 2.54, 4.40(33), 2019 Tex. Gen. Laws 3981, 4010, 4035.
challenged the constitutionality of this fee. See Dye v. State, No. 07-19-00370-CR, 2020
Tex. App. LEXIS 7501, at *3-4 (Tex. App.—Amarillo Sept. 16, 2020, pet. ref’d) (mem. op.,
not designated for publication). We sustained appellant’s point and modified the trial
court’s judgment to reflect that only a portion of the fee could be assessed by the district
clerk. Id. at *4.
The Court of Criminal Appeals granted review on the issue of whether the time
payment fee should be struck as prematurely assessed. In light of its recent decision in
Dulin v. State, Nos. PD-0856-19, PD-0857-19, 2021 Tex. Crim. App. LEXIS 273, at *11
(Tex. Crim. App. Mar. 31, 2021), the court vacated our judgment and remanded the case.
In Dulin, the Court of Criminal Appeals held that the pendency of an appeal stops
the clock for purposes of the time payment fee. Id. Thus, the assessment of the fee in
appellant’s case is premature. Id. Accordingly, the fee should be struck in its entirety.3
We modify the trial court’s judgment to delete the time payment fee of $25, without
prejudice to its assessment later, if warranted. We affirm the judgment as modified.
Judy C. Parker
Justice
Do not publish.
3As the Court of Criminal Appeals explained in Dulin, “Whether the time payment fee will be
reimposed later is speculative at this point because [appellant] could avoid the statutory conditions for
imposing the fee by choosing to pay his monetary obligations on time. And there is an available statutory
remedy to challenge the time payment fee, if it is ever imposed. TEX. CODE CRIM. PROC. [ANN.] art.
103.008(a) [(West 2018)].” Id. at *4 n.29.
2