Bowden v. State, 502 S.W.3d 913

Background

Appellant convicted of a felony; trial court assessed $133 in consolidated mandatory court costs under Tex. Loc. Gov’t Code § 133.102(a)(1).
Appellant challenged ~5.5904% of those costs (statutorily allocated to an emergency radio infrastructure account) as an unconstitutional taking under the U.S. and Texas Constitutions.
On original submission this court held appellant forfeited the challenge by not objecting at trial, relying on prior local precedent treating statutory court costs as giving constructive notice.
The Court of Criminal Appeals granted review, vacated, and remanded after London v. State, which held a defendant may raise court-costs challenges on direct appeal when costs were not imposed in open court and the judgment lacks an itemized bill.
On remand this court (majority) followed London, considered the merits, and rejected the takings claim; dissent argued London did not eliminate preservation requirements where defendant had constructive notice of mandatory statutory costs.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellant may raise for the first time on direct appeal a challenge to statutory court costs not imposed in open court and not itemized in judgment	Appellant: London allows first-time appeals when costs weren’t imposed in open court or itemized	State: Appellant had constructive notice of mandatory statutory costs and thus must have objected at trial to preserve error	Majority: Under London, appellant may raise the challenge on direct appeal because costs were not imposed in open court nor itemized; addressed merits
Whether assessment of a fractional statutory court cost constitutes a taking under the Texas Constitution (art. I, § 17)	Appellant: Money taken as court costs is ‘‘property’’ and the allocation is a taking without compensation	State: Statutory court costs are more like a tax/levy, not an exercise of eminent domain; not within text addressing eminent domain	Held: No state constitutional taking; provision concerns eminent-domain takings of (real) property, not mere financial obligations
Whether assessment of the court cost violates the Takings Clause of the U.S. Constitution (Fifth Amendment)	Appellant: Forcing appellant to bear a public expense is a taking requiring compensation	State: Financial obligations that do not appropriate or alter a specific property interest are not takings	Held: No federal taking; court costs are financial obligations, not a taking of a specific property interest
Whether constructive notice of statutory costs requires trial objection to preserve appellate review	Appellant: London permits appeal when costs not imposed in open court/itemized so no trial objection required	State/concurring precedent: Constructive notice of mandatory costs gave opportunity to object; failure to object forfeits complaint	Held by majority: London controls; dissent contends majority misreads London and appellant forfeited the claim

Key Cases Cited

London v. State, 490 S.W.3d 503 (Tex. Crim. App. 2016) (defendant may challenge court costs on direct appeal when costs not imposed in open court and judgment lacks itemization)
Johnson v. State, 475 S.W.3d 430 (Tex. App.—Houston [14th Dist.] 2015) (constructive notice of statutory court costs may require trial objection to preserve error)
Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014) (defendants have constructive notice of mandatory court costs imposed by statute)
Cardenas v. State, 423 S.W.3d 396 (Tex. Crim. App. 2014) (failure to provide bill of costs does not violate due process where defendant had constructive notice)
Denton v. State, 478 S.W.3d 848 (Tex. App.—Amarillo 2015) (statutory court costs treated like taxes/levies, not takings)
Eastern Enters. v. Apfel, 524 U.S. 498 (U.S. 1998) (Takings Clause generally focuses on appropriations or alterations of identifiable property interests)
State ex rel. Pan Am. Prod. Co. v. Texas City, 303 S.W.2d 780 (Tex. 1957) (constitutional prohibition on taking without compensation concerns eminent domain, distinct from taxation)
BEG Invs., LLC v. Alberti, 34 F. Supp. 3d 68 (D.D.C. 2014) (financial obligations are not takings; treating money-exaction as a taking is circular)