Opinion issued December 30, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00690-CR
NO. 01-12-00691-CR
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OSMIN PERAZA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Case No. 1305438
CONCURRING & DISSENTING OPINION
I join with the Court’s conclusions that the trial court did not abuse its
discretion in denying Appellant’s motion to withdraw his guilty pleas and that the
judgment should be modified, striking the unsupported “Sheriff’s Fee” assessed in
both cases. However, I disagree with the Court’s conclusion that the “DNA Record
Fee”1 is unconstitutional.
Facial Challenge to the DNA Record Fee
Appellant argues that the statute authorizing collection of the fee is facially
unconstitutional under the separation-of-powers clause of the Texas Constitution.
TEX. CONST. art. II, § 1. Under that provision, a statute authorizing a court to
collect costs “neither necessary nor incidental to the trial of a criminal case” is not
valid. Ex parte Carson, 159 S.W.2d 126, 127 (Tex. Crim. App. 1942). Appellant
makes only a facial challenge, which requires him to “establish that no set of
circumstances exists under which the statute will be valid.” Santikos v. State, 836
S.W.2d 631, 633 (Tex. Crim. App. 1992); see also State v. Rosseau, 396 S.W.3d
550, 557 (Tex. Crim. App. 2013). In my view, Appellant has not shown that every
application of the statue violates the Carson standard. I would, therefore, affirm the
constitutionality of the fee.
A. Reviewing a facial challenge
When reviewing the constitutionality of a statute, “an appellate court must
presume that the statute is valid and that the legislature was neither unreasonable
nor arbitrary in enacting it.” Curry v. State, 186 S.W.3d 39, 42 (Tex. App.—
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See TEX. CODE CRIM. PROC. ANN. art. 102.020(a)(1) (West Supp. 2014) (“A
person shall pay as a cost of court: (1) $250 on conviction of an offense listed in
Section 411.1471(a)(1), Government Code”).
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Houston [1st Dist.] 2005, no pet.) (citing Ex parte Granviel, 561 S.W.2d 503, 511
(Tex. Crim. App. 1978)). A reviewing court must make every reasonable
presumption in favor of the statute’s constitutionality, unless the contrary is clearly
shown. Granviel, 561 S.W.2d at 511; see TEX. GOV’T CODE ANN. § 311.021 (West
2013) (noting that courts presume “compliance” with Texas and United States
Constitutions).
To prevail, the party asserting a facial challenge “must establish that the
statute always operates unconstitutionally in all possible circumstances.” Rosseau,
396 S.W.3d at 557. When construing a statute, courts consider, among other
factors, the object sought to be attained by the legislation, laws on the same or
similar subjects, and the consequences of a particular construction. TEX. GOV’T
CODE ANN. § 311.023 (West 2013); see State v. Neesley, 239 S.W.3d 780, 784
(Tex. Crim. App. 2007); Nguyen v. State, 1 S.W.3d 694, 696–97 (Tex. Crim. App.
1999); see also Dowthitt v. State, 931 S.W.2d 244, 258 (Tex. Crim. App. 1996). If
a statute can be reasonably interpreted in a manner that does not offend the
constitution, a reviewing court must overrule a facial challenge to the statute’s
constitutionality. Curry, 186 S.W.3d at 42.
B. Constitutionality of the DNA Record Fee benefiting the criminal-justice
planning account
Appellant argues that the DNA Record Fee unconstitutionally benefits the
criminal-justice planning account because the account is “too remote” to be
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considered a necessary or incidental cost of prosecuting a criminal case as required
under Carson. 159 S.W.2d at 127 (concluding that law library fee is remote and
unconstitutional). The Court agrees and cites several possible uses of money from
the criminal-justice planning account that are not related to the prosecution of a
criminal case. This approach is contrary to the standard that applies to claims that a
statute is facially unconstitutional because (1) it diminishes the challenger’s burden
to demonstrate that all—not some—applications of a statute are unconstitutional;
and (2) it runs afoul of precedent by favoring an unconstitutional reading over a
constitutional reading when construing statutes. I would construe the criminal-
justice planning account in its statutory context, situated among related statutes,
and conclude that Appellant has not demonstrated that all applications of the
statute are unconstitutional under the Carson standard.
The Department of Public Safety (“DPS”) is required to collect a DNA
specimen from every person charged with certain categories of crimes, including
the crime involved here—aggravated sexual assault of a child under 14 years of
age—and to create a database cataloging the DNA specimens. TEX. GOV’T CODE
ANN. § 411.142 (West 2012) (directing DPS to maintain “computerized database
that serves as the central depository in the state for DNA records” that is
compatible with FBI’s national DNA identification index system); id. § 411.1471
(West 2012) (requiring collection of DNA specimens from people charged with or
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convicted of certain crimes, including aggravated sexual assault of child under 14
years of age); TEX. PENAL CODE ANN. § 22.021 (West Supp. 2014) (defining
aggravated sexual assault of child under 14 years of age). The criminal-justice
planning account allocates funds toward the collection and management of this
statewide criminal DNA database. See TEX. CODE CRIM. PROC. ANN. art. 102.056
(West Supp. 2014). Specifically, subsection (e) of article 102.056 directs the
Legislature to
determine and appropriate the necessary amount from the criminal
justice planning account to the criminal justice division of the
governor’s office for reimbursement in the form of grants to the
Department of Public Safety of the State of Texas and other law
enforcement agencies for expenses incurred in performing duties
imposed on those agencies under Section 411.1471 or Subchapter B-
1, Chapter 420, Government Code, as applicable.
Id.
After looking outside the record to press releases and web sites, the Court
insists that “it cannot be assumed that DPS was automatically reimbursed by virtue
of the ‘DNA Record Fee’ for any expenses associated with the collection of
[Appellant’s] sample” and therefore the fee is an unconstitutional tax. This
conclusion does not account for the remainder of subsection (e), which continues:
The criminal justice division through a grant [of money from the
criminal-justice planning account] shall reimburse the law
enforcement agency for the costs not later than the 30th day after the
date the certified statement is received. If the criminal justice division
does not reimburse the law enforcement agency before the 90th day
after the date the certified statement is received, the agency is not
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required to perform duties imposed under Section 411.1471 or
Subchapter B-1, Chapter 420, Government Code, as applicable, until
the agency has been compensated for all costs for which the agency
has submitted a certified statement under this subsection.
Id. Thus, the Court’s skepticism is unjustified given the wording of the statute
regarding reimbursement to fund the DNA project.
The Court also insists that, even if DPS were reimbursed, the fee is
nevertheless unconstitutional because the criminal-justice planning account funds
other unrelated projects. Following this analysis, it would be enough for a party
bringing a facial constitutional challenge to show that some possible applications
of a statute are unconstitutional to justify invalidating every application of that
statute. That is the wrong standard. See Santikos, 836 S.W.2d at 633 (“[T]he
challenger must establish that no set of circumstances exists under which the
statute will be valid.”). While money from the criminal-justice planning account
apparently funds other programs in addition to the DNA database, Appellant
presents no evidence that the DNA Record Fee revenue does anything more than
reimburse the criminal-justice planning account for its DNA-database
expenditures. Appellant appears to concede that reimbursement for these
expenditures would not violate Carson. I agree.
I would hold that collecting the DNA Record Fee to benefit the criminal-
justice planning account is constitutional because these funds may be allocated to
the statewide criminal DNA database. Because such an allocation would be
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constitutional, Appellant fails to meet his burden of showing that every application
of the statute would result in constitutional injury. See Rosseau, 396 S.W.3d at 557
(noting moving party has burden of demonstrating statute’s unconstitutionality in
“all its possible applications.”). Accordingly, I would conclude that Appellant has
failed to demonstrate that the portion of the DNA Record Fee that benefits the
criminal-justice planning account is an unconstitutional tax.
C. Constitutionality of the DNA Record Fee benefiting the state highway
fund
Likewise, Appellant has not demonstrated that the portion of the DNA
Record Fee that benefits the state highway fund is facially invalid. Pursuant to
article 102.020(h) of the Texas Code of Criminal Procedure, a portion of collected
DNA Record Fee revenue goes into the state highway fund. “[M]oney deposited to
the state highway fund under . . . 102.020(h), Code of Criminal Procedure, may be
used only to defray the cost of administering [subchapter G of chapter 411] and
Section 411.0205” of the Texas Government Code. TEX. GOV’T CODE ANN. §
411.145 (West 2012). Subchapter G governs the collection and management of
DNA samples, including Appellant’s, by DPS. See TEX. GOV’T CODE ANN. §
411.1471. Section 411.0205 regulates the accreditation of forensic crime
laboratories by DPS. TEX. GOV’T CODE ANN. § 411.0205 (West 2012). Thus, under
the Texas Government Code, the portion of the DNA Record Fee credited to the
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state highway fund is used to defray the costs associated with collecting, storing,
and testing DNA samples.
The Court relies on section 222.002 of the Texas Transportation Code,
which states that money in the state highway fund not earmarked for public
roadways “may be used for any function performed by” the Texas Department of
Transportation (“TxDOT”). TEX. TRANSP. CODE ANN. § 222.002 (West 2011)
(emphasis added). TxDOT does not manage DNA-sample collection, management,
or testing. But TxDOT does not have exclusive access to the state highway fund.
Rather, the Transportation Code simply states a general rule that TxDOT “may”
access the fund. In contrast, the Government Code provides a specific rule that
money from the DNA Record Fee in the state highway fund “may be used only” by
DPS to defray the cost of administering the DNA database. TEX. GOV’T CODE
ANN. § 411.145 (emphasis added).
When two statutes concern the same issue, the two should be read together
as one law, and an appellate court should attempt to harmonize any conflicting
provisions. Garrett v. State, 424 S.W.3d 624, 629 (Tex. App.—Houston [1st Dist.]
2013, pet. ref’d). If this is not possible, specific rules prevail over general
provisions, absent contrary legislative intent. Id.; Azeez v. State, 248 S.W.3d 182,
192 (Tex. Crim. App. 2008). In light of these principles, I would hold that the
statute specifically assigning DNA Record Fee revenue in the state highway fund
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to DPS for DNA sampling and crime-lab accreditation prevails over the general
statute relied upon by the Court.
I would further hold that paying for DNA sampling and crime-lab
accreditation is a valid, constitutional use of the DNA Record Fee under Carson.
The trial court ordered Appellant to surrender a DNA sample as part of the
investigation of this case. The fee is therefore “necessary or incidental” to the trial
of Appellant’s case. See generally TEX. GOV’T CODE ANN. § 411.143(a) (West
2012) (“The principal purpose of the DNA database is to assist a federal, state, or
local criminal justice agency in the investigation or prosecution of sex-related
offenses or other offenses in which biological evidence is recovered.”).
The Court concludes that the fee is an unconstitutional tax because the
revenue could possibly benefit other activities unrelated to the statewide DNA
database. In doing so, the Court again relies on web sites outside the record
because Appellant has provided no record evidence of how the funds are expended
and relieves Appellant of his burden when bringing a facial constitutional
challenge.
Because Appellant has not demonstrated that every application of the
statutes assigning DNA Record Fee revenue to the state highway fund would be
unconstitutional, I would conclude that Appellant did not demonstrate that the
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portion of the DNA Record Fee that benefits the state highway fund is facially
unconstitutional.
Conclusion
Having determined that both portions of the DNA Record Fee—the 65% that
benefits the criminal-justice planning account and the 35% that benefits the state
highway fund—are sufficiently related to the prosecution of a criminal case, I
would conclude that Appellant failed to satisfy his burden of demonstrating that
the DNA Record Fee is facially unconstitutional. Accordingly, I respectfully
dissent.
Harvey Brown
Justice
Panel consists of Justices Jennings, Sharp, and Brown.
Justice Brown, concurring in part and dissenting in part.
Publish. TEX. R. APP. P. 47.2(b).
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