OPINION
delivered the opinion for a unanimous Court.
This сase concerns a bill of costs purporting to order the reimbursement of attorney fees some nine years after judgment was entered against the applicant. It comes before us in the guise of a post-conviction application for writ of habеas corpus pursuant to Article 11.07 of the Texas Code of Criminal Procedure, 1 but, for reasons which we shall presently explain, we will treat it instead as an application for writ of mandamus and grant conditional relief.
The judgment entered against the applicаnt reflects that he was charged with the offense of forgery of a check in cause number 2000CR1247, allegedly committed on September 27, 1999. 2 A jury convicted him of that offense on January 31, 2002. On April 12, 2002, he pled true before the trial court to unspecified enhancement provisions, and the trial court assessed a sentence of twenty years’ incarceration in the penitentiary. 3 The judgment also reflects that court costs were assessed against the applicant on that date in the amount of $295.25. In the specific category of “APPOINTED ATTY,” however, the trial court assessed no cost against the applicant in the judgment. The judgment reflects that the applicant was represented by counsel at trial, but does not specify whether counsel was retained or appointed.
More than nine years later, on July 27, 2011, the Bexar County District Clerk issued a “Bill of Cost” with respect to cause number 2000CR1247. In addition to the $295.25 that were specifically assessed in the judgment as court costs in 2002, this belated “Bill of Cost” also assessed a cost for “APPOINTED ATTY” in the amount of $7,945.00. The applicant subsequently filеd a pleading denominated as a post-conviction application for writ of habeas
Rather than immediately accepting that recommendation, and without specifically addressing the trial court’s concern with the cognizability of the applicant’s claim, this Court remanded the cause to the trial court for further fact development.
8
The trial court has now forwarded amended findings of fact and conclusions of law to this Court. Relying upon “personal recollection,”
9
but without addressing whether the applicant was indigent and represented by appointed сounsel
at trial,
the trial court made an express finding of fact that the applicant was determined to be indigent for purposes
of appeal
on May 6, 2002, and that counsel was duly appointed to represent him for appellate purposes on
In Mayer v. State, we observed that “the defendant’s financial resources and ability to pay are explicit critical elements in the trial court’s determination of the propriety of ordering reimbursement of costs and fees” under Article 26.05(g). 10 The trial court has conceded that the District Clerk’s 2011 “Bill of Cost” is not predicated upon any findings whatsoever with respect to these “critical elements.” Because no such findings were made during the nine years between the entry of the judgment and the Clеrk’s issuance of the “Bill of Cost,” there is no basis for the assessment of attorney fees in the latter. 11
We decline to grant post-conviction habeas corpus relief under Article 11.07, however. On reflection, we conclude, as did the convicting court in its initial recommеndation, that the applicant’s challenge to the “Bill of Cost” in no way implicates the fact or duration of his confinement pursuant to his conviction in cause number 2000CR1247; for this reason, it is not the proper subject of a statutorily governed post-conviction aрplication for writ of ha-beas corpus.
12
On the other hand, if the District Clerk’s “Bill of Cost” has any validity at all, it could be only by virtue of the trial court’s authority under Article 26.05(g), and questions of the validity of orders entered under the authority of this provision, we have held, constitute “criminal law mаtters” for purposes of our mandamus jurisdiction under Article V, Section
Before we may grant extraordinary relief on his appliсation as a writ of mandamus, the applicant must fulfill two prerequisites. First, he must show that he lacks an adequate legal remedy.
15
Because the District Clerk’s “Bill of Cost” came nine years after the judgment of conviction was entered, long after the applicant cоuld have challenged it in the course of an ordinary appeal,
16
because it does not now constitute an independently appealable order,
17
and because we have held today that it cannot be challenged in a postconviction hаbeas corpus proceeding, we conclude that the applicant has satisfied the showing that he has no adequate legal remedy available. Second, he must show that he has a clear entitlement to the relief he seeks.
18
In the apparent absence of an order from the trial court under Article 26.05(g) mandating the reimbursement of appointed attorney fees — not to mention the necessary finding that a previously indigent applicant has the present financial wherewithal to pay those appointed attorney fees — the District Clerk lacked any authority to assess attorney fees as part of the belated “Bill of Cost” filed on July 27, 2011.
19
Accordingly, we will conditionally grant mandamus relief and order the Bexar County District Clerk to delete the assessment of costs for attornеy fees in the amount of $7,945.00 from the “Bill of Cost” that was filed on that date, corresponding with the judgment in cause number 2000CR1247, while leaving intact those costs, in the amount of $295.25, that were
We assume that the District Clerk will immediately comply with our order; the writ of mandamus will issue only in the event that she shоuld refuse to do so. Mandamus relief is conditionally granted.
Notes
. Tex.Code Crim. Proc. art. 11.07.
. There is no copy of the indictment in the record presently before us.
. The judgment reflects that the applicant was charged with forgery punishable as a state jail felony under Section 32.21(d) of the Texas Penal Code. Tex. Penal Code § 32.21(d). The judgment also reflects, in the category of "PLEA TO ENHANCEMENT,” that the applicant pled "TRUE TO HABITUAL,” while in the category "FINDING ON ENHANCEMENT,” the trial court accordingly found "TRUE TO HABITUAL.” Without the indictment before us, we cannot precisely determine how the applicant became susceptible to a twenty-year sentence, but he does not challenge that sentence in any respect in this proceeding.
. See Tex.R.App. P. 73.1(a).
. Effective January 1, 2002, this provision reads:
(g) If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of legal services provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is able to pay.
Acts 2001, 77th Leg., ch. 906, § 8, p. 1808, eff. Jan. 1, 2002.
.
. See Defendant's Brief in Support of 11.07 Habeas Petition at 5.
.
See Ex parte Daniel,
The trial court shall make findings of fact as to whether Applicant was declared indigent at the time of his trial and appeal and if so, when, if at all, the trial court ordered that Apрlicant repay attorney fees from his trial or appeal. If the trial court ordered Applicant to repay attorney fees, the trial court shall find whether any determination as to Applicant's ability to pay was made prior to imposing those feеs, and whether Applicant had the ability to appeal the imposition of such fees. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant’s claims for habeas corpus relief.
Id. at *1.
. See Tex.Code Crim. Proc. art. 11.07, § 3(d) (to resolve controverted issues of fact, trial court "may order affidavits, depositions, interrogatories, additional forensic testing, and hearings, as well as using personal recollection”). The same judge who signed the judgment of conviction in 2002 has also presided over these purported Article 11.07 proceedings.
.
. Assuming, without deciding, that the applicant’s claim would be subject to ordinary notions of procedural default, we note that he has raised his claim at the earliest opportunity after the District Clerk issued its unilateral "Bill of Cost.” Moreover, we need not decide whether the District Clerk's "Bill of Cost” would have been valid had it actually been predicated on a finding by the trial court, nine years after the fact, that the applicant can now afford to reimburse the State for the cost of his court-appointed representation. In
Curry v. Wilson,
.See, e.g., Ex parte Lockett,
.
Johnson v. Tenth Judicial District Court of Appeals,
.
E.g., Houlihan v. State,
.
E.g., Bowen
v.
Carnes,
. The appellant in
Armstrong
was able to appeal the assessment of attorney fees, but in that case, the bill of costs that included those fees was "prepared” the day after the appellant’s deferred-adjudication probation was revoked and the trial court signed the judgment proceeding to adjudication.
. The right to appeal is conferred by statute. Johnson, supra, at 873, n. 38. We are aware of no statute conferring a right to appeal from a bill of cоsts independently of the appeal of the judgment of conviction in a criminal case, as in Armstrong.
. Bowen, supra.
. Tex.Code Crim. Proc. art. 26.05(g);
Mayer, supra,
at 556. In
Armstrong, we
held that "attorney fees as set forth in a certified bill of costs are effective whether or not incorporated by reference in the written judgment.”