CROSSOVER: The Preservation Trap: Why Silence Waives Mandatory ‘Ability-to-Pay’ Inquiries in Quasi-Criminal Family Law Matters

Crayton v. State, 03-24-00778-CR, March 20, 2026.

On appeal from The26TH District Court of Williamson County, Texas.

Synopsis

The Third Court of Appeals held that a trial court’s failure to conduct the mandatory “ability-to-pay” inquiry required by Article 42.15(a-1) is a forfeitable error that must be preserved by a timely objection at sentencing. Furthermore, such an omission does not constitute reversible error because the statutory scheme provides an ongoing, post-judgment mechanism to seek relief for financial hardship.

Relevance to Family Law

For the family law litigator, Crayton serves as a stark warning in quasi-criminal enforcement proceedings and contempt actions. When representing an obligor facing the assessment of attorney’s fees, costs, or fines, counsel cannot rely on the trial court’s “mandatory” statutory duty to inquire into the client’s financial resources. If the court omits this inquiry and the record remains silent, the defense is waived. This reinforces the necessity of a proactive “ability-to-pay” record in any proceeding where financial sanctions or costs are at stake.

Case Summary

Fact Summary

John Edgar Crayton, Jr. was convicted by a jury on two counts of intoxication manslaughter. Following the jury’s assessment of a 40-year prison sentence, the trial court entered judgments that included the assessment of court costs. Under Texas Code of Criminal Procedure Article 42.15(a-1), the trial court was required—during or immediately after sentencing—to inquire on the record whether Crayton had the resources to pay those costs. The reporter’s record confirmed that no such inquiry occurred. However, when the trial court asked if “anything further was needed” at the conclusion of the hearing, Crayton requested appellate counsel but raised no objection to the absence of the financial inquiry. Crayton subsequently appealed, arguing that the court’s failure to conduct the mandatory hearing was an error requiring reversal.

Issues Decided

• Whether a defendant forfeits the right to complain about a trial court’s failure to conduct a mandatory “ability-to-pay” inquiry by failing to object at the time of sentencing.
• Whether the omission of an Article 42.15(a-1) inquiry constitutes reversible error given the availability of post-judgment relief under Article 43.035.

Rules Applied

• Tex. Code Crim. Proc. art. 42.15(a-1): Requires the court to inquire on the record whether a defendant has sufficient resources or income to pay fines and costs.
• Tex. Code Crim. Proc. art. 43.035: Provides that a defendant may notify the court of financial difficulty at any time after sentencing, triggering a mandatory hardship hearing and potential waiver or modification of costs.
• Cruz v. State, 698 S.W.3d 265 (Tex. Crim. App. 2024): Establishes that the ability-to-pay inquiry is not a “waivable-only” right or a fundamental requirement of the adjudicatory system; it requires a contemporaneous objection for preservation.
• Tex. R. App. P. 44.2: Governs the standard for reversible error in criminal appeals.

Application

The court’s analysis centered on the preservation requirements of the Texas Rules of Appellate Procedure. Relying heavily on the Court of Criminal Appeals’ recent precedent in Cruz v. State, the court determined that the Article 42.15(a-1) inquiry is not “fundamental” to the judicial system’s operation. Because the inquiry is a procedural right intended to benefit the defendant, the burden lies with the defendant to trigger its enforcement through an objection if the trial court overlooks it. In this case, the record showed that the appellant had an opportunity to speak when the court asked if further matters needed to be addressed, yet he remained silent on the issue of costs.

The court then addressed the lack of harm. It noted that the statutory framework for court costs is not a “one-and-done” event at sentencing. Because Article 43.035 allows a party to raise financial hardship “forever after sentencing,” the trial court retains jurisdiction to rectify any undue burden caused by the assessment of costs. The court reasoned that since Crayton could still seek a hardship hearing at the trial level if and when the state attempts to collect the costs, the initial failure to hold the inquiry does not warrant a reversal of the judgment.

Holding

The court held that the appellant forfeited his complaint regarding the lack of an ability-to-pay inquiry because he failed to object to its absence during the sentencing phase. The court reaffirmed that a contemporaneous objection is a prerequisite for appellate review of this statutory requirement.

The court further held that even if the error had been properly preserved, it was not reversible. Because the defendant maintains a statutory right to seek a hardship hearing and modification of costs at any time post-sentencing under Article 43.035, the absence of the initial inquiry does not affect the substantial rights of the party or the integrity of the judgment.

Practical Application

• Contempt and Enforcement: In child support enforcement cases where the court is inclined to award attorney’s fees as costs, defense counsel must affirmatively request an “ability-to-pay” inquiry on the record. Do not rely on the judge to remember the statutory mandate.
• Record Preservation: If the court concludes a hearing and begins to assess costs without discussing the obligor’s financial means, interject immediately. A simple statement such as, “Your Honor, we request the court conduct the mandatory inquiry into the Respondent’s ability to pay these costs on the record,” is sufficient to preserve the issue.
• Post-Judgment Strategy: If you inherit a case where the trial lawyer failed to object, skip the appeal on this specific issue. Instead, utilize the trial court’s continuing jurisdiction under the “undue hardship” statutes to seek a modification or waiver of the costs once collection efforts begin.

Checklists

Preservation at Sentencing

• Identify whether the court is assessing “costs” or “fines” as part of the judgment.
• Confirm that the “ability-to-pay” colloquy has occurred on the record.
• Object specifically to the absence of the inquiry if the court moves to the next item of business.
• Ensure the court’s “anything further” invitation is used to raise the financial inquiry issue.

Remedying an Omission Post-Judgment

• Review the client’s current financial resources and income.
• File a formal notification of difficulty paying costs under Article 43.035.
• Request a hearing specifically to determine “undue hardship.”
• Prepare evidence of alternative satisfaction methods, such as community service or periodic payment plans, to present at the hardship hearing.

Citation

Crayton v. State, 03-24-00778-CR (Tex. App.—Austin Mar. 20, 2026, no pet. h.).

Full Opinion

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Family Law Crossover

The Crayton decision is a tactical gift for the movant in enforcement litigation. If you are representing a party seeking to recover fees and costs in a contempt action, Crayton allows you to argue that any “ability-to-pay” defense is forfeited if not raised with laser-like specificity at the time of the ruling. Conversely, for the respondent, Crayton highlights the danger of “silent records.” In the heat of a high-conflict divorce or custody battle, it is easy for counsel to focus on the merits and forget the procedural nuances of cost assessment. This ruling weaponizes that forgetfulness, ensuring that unless the defense is active and vocal, the financial consequences of the judgment will remain undisturbed on appeal. Practitioners should treat the “ability-to-pay” inquiry not as a court-led formality, but as a defense-led necessity.

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