PD-0100-15 & PD-0101-15
PD-0100&0101-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 1/28/2015 2:56:02 PM
Accepted 1/29/2015 2:40:15 PM
No. ______________ ABEL ACOSTA
CLERK
In the
Texas Court of Criminal Appeals
At Austin
No. 01-12-00690-CR
No. 01-12-00691-CR
In the Court of Appeals for the
First District of Texas
at Houston
OSMIN PERAZA
Appellant
V.
THE STATE OF TEXAS
Appellee
STATE’S PETITION FOR DISCRETIONARY REVIEW
DEVON ANDERSON
District Attorney
Harris County, Texas
JESSICA AKINS
Assistant District Attorney
January 29, 2015 1201 Franklin, Suite 600
Houston, Texas 77002
Telephone: 713.755.5826
Fax: 713.755.5809
akins_jessica@dao.hctx.net
Counsel for Appellee
ORAL ARGUMENT REQUESTED
IDENTIFICATION OF THE PARTIES
Pursuant to TEX. R. APP. P. 68.4(a), a complete list of the names of all
interested parties is provided below.
Victim:
A.S. a child victim under the age of 14
Counsel for the State:
Devon Anderson, District Attorney of Harris County
Jessica Akins, Assistant District Attorney on appeal
Sarah Bruchmiller, Assistant District Attorney at trial
1201 Franklin, Suite 600, Houston, Texas 77002
Lisa McMinn, State Prosecuting Attorney
P. O. Box 13046, Austin, Texas 78711
Appellant or criminal defendant:
Osmin Peraza
Counsel for Appellant:
Emily DeToto Counsel at trial
Jani Maselli Counsel on appeal
Assistant Public Defender, Harris County, Texas
1201 Franklin, 13th Floor, Houston, Texas 77002
Trial Judge:
Honorable Jan Krocker Presiding Judge
i
TABLE OF CONTENTS
IDENTIFICATION OF THE PARTIES ................................................................................ i
INDEX OF AUTHORITIES ................................................................................................... iii
STATEMENT REGARDING ORAL ARGUMENT .......................................................... 1
STATEMENT OF THE CASE ................................................................................................. 1
STATEMENT OF THE PROCEDURAL HISTORY ......................................................... 1
REASONS FOR REVIEW ....................................................................................................... 2
STATEMENT OF FACTS ....................................................................................................... 2
SOLE GROUND FOR REVIEW ........................................................................................... 3
The First Court of Appeals erred by finding the DNA record fee is an
unconstitutional tax that violates the separation of powers clause
CONCLUSION .......................................................................................................................... 8
CERTIFICATE OF SERVICE ................................................................................................ 9
CERTIFICATE OF COMPLIANCE ..................................................................................... 9
ii
INDEX OF AUTHORITIES
CASES
Broyles v. State,
688 S.W.2d 290 (1985) ......................................................................................................... 6
Ex Parte Carson,
159 S.W.2d 126 (Tex. Crim. App. 1942) ........................................................................... 4
Peraza v. State,
No. 01-1200069-CR, No. 01-12-00691-CR,
2014 WL 7476214 (Tex. App.—Houston [1st Dist.] Dec. 30, 2014, pet. filed) ... 2-7
Salinas v. State,
426 S.W.3d 318 (Tex. App.—
Houston [14th Dist.] 2014, pet. granted) ................................................................. 1, 7, 8
State v. Claborn,
870 P.2d 169 (Okl. Cr. 1994)................................................................................................ 5
State v. Johnson,
478 S.E.2d 16 (N.C. App. 1996) ........................................................................................... 6
State v. Young,
238 So.2d 589 (Fla. 1970) ..................................................................................................... 6
STATUTES
TEX. CODE CRIM PROC. ANN.
art. 102.020 (West 2012)...................................................................................................... 7
TEX. CODE CRIM PROC. ANN.
art. 102.020(a)(1) (West 2012) .......................................................................................4, 5
TEX. GOV’T CODE ANN.
§ 411.1471 (a)(1)(D) (West 2012)........................................................................................ 4
TEX. GOV’T CODE ANN.
§ 411.1471 (b) (West 2012) ................................................................................................... 5
iii
TEX. PENAL CODE ANN.
§ 22.021 (West 2012)............................................................................................................. 4
RULES
TEX. R. APP. P. 66.3(a)................................................................................................................ 2
TEX. R. APP. P. 66.3(e)................................................................................................................ 2
TEX. R. APP. P. 68.2(a) ............................................................................................................... 2
TEX. R. APP. P. 68.4(a) ................................................................................................................ i
TEX. R. APP. P. 68.4(d) ................................................................................................................ 1
iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 68.4(d), the State requests oral argument.
Argument in this case is necessary because the court of appeals’ opinion is in
conflict with a recent case from the Fourteenth Court of Appeals, Salinas v. State,
426 S.W.3d 318 (Tex. App.—Houston [14th Dist.] 2014, pet. granted) (statute
requiring assessment of court costs was not facially unconstitutional under the
separation of powers clause of the Texas Constitution).
STATEMENT OF THE CASE
Appellant was charged with two counts of aggravated sexual assault of a
child. (CR I 2; CR II 2)1. Appellant pled guilty to both offenses and the trial court
sentenced him to 25 years confinement on each case, to run concurrently. (CR I
59-60, 73; CR II 61-62, 75).
STATEMENT OF THE PROCEDURAL HISTORY
On December 30, 2014, a panel of the First Court of Appeals issued a
published opinion affirming these convictions, but modifying the judgments to
delete the $250 DNA record fee, finding it constitutes an unconstitutional tax. See
1
“CR I” refers to the clerk’s record in cause number 1305438, and “CR II” refers to the
clerk’s record in cause number 1305439.
Peraza v. State, No. 01-1200069-CR, No. 01-12-00691-CR, 2014 WL 7476214 (Tex.
App.—Houston [1st Dist.] Dec. 30, 2014, pet. filed). The opinion was authored by
Justice Jennings, and joined by Justice Sharp. Id. Justice Brown filed a dissenting
opinion. Id. The State’s petition for discretionary review is timely filed. See TEX. R.
APP. P. 68.2(a).
REASONS FOR REVIEW
This petition for discretionary review should be granted because the court
of appeals has issued an opinion in conflict with a decision from another court of
appeals. See TEX. R. APP. P. 66.3(a). Further, the justices on the panel of the First
Court of Appeals have disagreed on a material question of law necessary to the
court’s decision. See TEX. R. APP. P. 66.3(e).
STATEMENT OF FACTS
Appellant was indicted for two offenses – aggravated sexual assault of a
child, for intentionally and knowingly causing the mouth of a child under the age
of 14, namely A.S., to contact his sexual organ, and aggravated sexual assault of a
child, for intentionally and knowingly causing the sexual organ of a child under
the age of 14, namely A.S., to contact appellant’s sexual organ. (CR I 2; CR II 2).
An investigation was opened by CPS after A.S., the complainant, confided to
a friend at school that she was being sexually abused by appellant, her uncle.
2
(State’s Exhibit Number 1; RR II 15; RR III 6). Appellant is married to the
complainant’s aunt, her father’s sister. (RR II 13-14). Appellant and his wife lived
in complainant’s home, for a period of 5 months, when theses offenses occurred.
(RR II 14-15).
Complainant reported several sexual advances by appellant; she described
one incident where appellant physically put his penis inside her vagina, and
another time where he forced her mouth on his penis. (State’s Exhibit Number 1;
RR II 16-17; RR III 6-7). Appellant initially denied committing theses offenses, but
later admitted his guilt. (State’s Exhibit Number 1). He recalled committing the
offenses at night when his wife was sleeping and the complainant’s parents were
not around. (State’s Exhibit Number 1; RR III 6-7).
Complainant had trouble in school after the assaults; her grades dropped,
she suffered from nightmares and attended weekly counseling sessions. (RR II 17-
19). Her father testified that appellant’s actions tore apart the family, so he moved
his family to Nashville, Tennessee. (RR II 19).
SOLE GROUND FOR REVIEW
The First Court of Appeals erred by finding the DNA record fee is an
unconstitutional tax that violates the separation of powers clause.
Both the Texas Code of Criminal Procedure and the Texas Local
Government Code contain provisions authorizing court costs in criminal cases.
3
Article 102.020(a)(1) of the Texas Code of Criminal Procedure authorizes court
costs in the amount of $250 when a person is convicted of an offense listed in
Section 411.1471(a)(1) of the Government Code. See TEX. CODE CRIM PROC. ANN.
art. 102.020(a)(1) (West 2012). Section 411.1471(a)(1) includes the offense of
aggravated sexual assault of a child. See TEX. GOV’T CODE ANN. § 411.1471(a)(1)(D)
(West 2012); TEX. PENAL CODE ANN. § 22.021 (West 2012) (aggravated sexual
assault of a child).
Appellant’s court costs included the $250 fee and in his appeal to the First
Court, he challenged the assessment of this DNA record fee, claiming it was an
unconstitutional tax that violated the separation of powers clause of the Texas
Constitution. (CR I 75-77; CR II 77-79). The majority panel of the First of Court
of Appeals agreed and modified both judgments to delete the $250 DNA record
fee. Peraza, 2014 WL 7476214 at * 12-13.
In support of their holding, the First Court of Appeals utilized Ex Parte
Carson, 159 S.W.2d 126 (Tex. Crim. App. 1942), for the proposition that court costs
in criminal proceedings must be necessary or incidental to the criminal case to be
considered a proper item of cost. In Carson, the defendant challenged the
constitutionality of a statute assessing a sum of money for the purpose of
establishing and maintaining a county law library, which the Court found was not
a proper cost of prosecution. Id.
4
The First Court of Appeals concluded that the fee is an unconstitutional tax
because the revenue could possibly benefit other activities unrelated to the
statewide DNA database. Peraza, 2014 WL 7476214 at * 10-11. As pointed out in
the dissent, by doing so, the Court relied on web sites outside the record,
(appellant did not provide any record evidence to show how the funds are
expended) which essentially relieves appellant of his burden when bringing a
facial constitutional challenge. Peraza, 2014 WL 7476214 at * 15-16 (Brown, J.,
dissenting).
The DNA record court cost is a one-time fee of $250; this statute allows law
enforcement to obtain a specimen from the defendant to create a DNA record.
TEX. CODE CRIM PROC. ANN. art. 102.020(a)(1) (West 2012); TEX. GOV’T CODE ANN.
§ 411.1471 (b) (West 2012). “As long as the statutory criminal assessments are
reasonably related to the costs of administering the criminal justice system, its
imposition will not render the courts ‘tax gatherers’ in violation of the separation
of powers doctrine.” State v. Claborn, 870 P.2d 169, 171 (Okl. Cr. 1994) (finding that
various assessments, including a fingerprinting fee, a victims compensation
assessment, and a drug assessment imposed on a criminal defendant convicted of
drug charges did not violate the separation of powers doctrine because they are
“reasonably related to the costs of administering the criminal justice system and
are not simply an executive branch tax”). The Court in Claborn noted that the
5
separation of powers doctrine does not demand crystal clear distinctions between
branches of government, acknowledging that a certain amount of “blending” is
inevitable. Id. at 171.
And several other jurisdictions have reached this same conclusion. See
Broyles v. State, 688 S.W.2d 290, 292 (1985) (holding that court costs of $302.25 for
DWI defendant, which included an additional $250 that was allocated in part to
programs relating to drunken driving, detoxification services and alcohol and drug
abuse rehabilitation, was constitutional since funds go to agencies society has
created to keep the highways safe from drunk drivers); State v. Young, 238 So.2d
589, 590 (Fla. 1970) (acknowledging difference in a civil filing fee and a post-
conviction criminal fee, and holding that statute imposing a one dollar charge for
law enforcement on every person convicted of a crime is not a violation of the
separation of powers doctrine because it is reasonable that one who is convicted of
a crime “should be made to share in the improvement of agencies that society has
had to employ in defense against the very acts for which he has been convicted”)
(emphasis added); State v. Johnson, 478 S.E.2d 16, 24 (N.C. App. 1996) (finding that a
$100 fee imposed on a criminal convicted of a drug charge to recompense the state
for costs of drug analysis was not a violation of the separation of powers doctrine
because the charge is reasonably related to the costs of administering the criminal
justice system).
6
The cost collected under Article 102.020 was to reimburse the State for
expenses incurred as a result of the felony prosecution, specifically costs spent to
obtain DNA specimens in certain cases. TEX. CODE CRIM PROC. ANN. art. 102.020
(West 2012). Since this statutory assessment is reasonably related to the costs of
administering the criminal justice system, the Court failed to demonstrate how the
statute authorizing this court cost is unconstitutional. See Peraza, 2014 WL
7476214 at * 16 (Brown, J., dissenting) (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).
The First Court acknowledges the Fourteenth Court of Appeals holding in
Salinas v. State, where the Court examined the consolidated court cost on this same
basis and found it was constitutional, but disagrees with its conclusion. See Peraza,
2014 WL 7476214 at * 12; Salinas, 426 S.W.3d at 325-328. (statute requiring
defendants convicted of a felony to pay $133 as a court cost, with those funds
allocated to 14 specified funds, was not facially unconstitutional under the
separation of powers clause of the Texas Constitution, on the theory that it
required courts to perform executive function by collecting a tax; there was no
evidence what the designated funds actually did with the money, and even if some
7
of the fund recipients were invalid because they were not related to the justice
system, court costs could be collected and distributed in accordance with
severability principles to the admittedly appropriate funds specified in the
statute).
Review of the Court of Appeal’s opinion in this case is necessary, as Osmin
Peraza v. State is a published opinion that is in conflict with a decision from the
Fourteenth Court of Appeals, Salinas, 426 S.W.3d at 325-328.2
CONCLUSION
It is respectfully requested that this petition be granted, the Court of
Appeals’ judgment on this issue be reversed, and the conviction be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Jessica Akins
JESSICA AKINS
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
akins_jessica@dao.hctx.net
713.755.5826
TBC No. 24029415
2
This Court has ordered and received briefing on the separation of powers issue as it
relates to court costs in Orlando Salinas v. State, PD-0419-14. It has not yet been submitted.
8
CERTIFICATE OF SERVICE
This is to certify that a copy of this document has been sent to the following:
Jani Maselli
Assistant Public Defender
Harris County, Texas
1201 Franklin, 13th Floor
Houston, Texas 77002
Jani.Maselli@pdo.hctx.net
Lisa C. McMinn
State Prosecuting Attorney
P. O. Box 13046
Austin, Texas 78711
Lisa.McMinn@SPA.texas.gov
/s/ Jessica Akins
JESSICA AKINS
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
akins_jessica@dao.hctx.net
713.755.5826
TBC No. 24029415
CERTIFICATE OF COMPLIANCE
This is to certify that this computer-generated document has a word count
of 2290 words, based upon the representation provided by the word processing
program that was used to create the document.
/s/ Jessica Akins
Date: 1/28/2015
9
APPENDIX A
10
less than fourteen years of age. After his arrest, appellant
2014 WL 7476214
Only the Westlaw citation is currently available. failed a polygraph test and then admitted to a police
officer that he had committed the offenses. He
NOTICE: THIS OPINION HAS NOT BEEN subsequently pleaded guilty to committing the offenses.
RELEASED FOR PUBLICATION IN THE In his plea papers, appellant admitted that he had
PERMANENT LAW REPORTS. UNTIL RELEASED, intentionally and knowingly caused both the mouth of the
IT IS SUBJECT TO REVISION OR WITHDRAWAL. complainant, a person younger than fourteen years of age,
OPINION to contact his sexual organ and the sexual organ of the
Court of Appeals of Texas, complainant to contact his sexual organ. In each case,
Houston (1st Dist. appellant also signed written admonishments,
representing that he was mentally competent, understood
Osmin Peraza, Appellant the nature of the charge against him and the consequence
v. of his plea, and freely and voluntarily pleaded guilty to
The State of Texas, Appellee the offense. Appellant’s attorney signed the plea papers,
NO. 01–12–00690–CR, NO. 01–12–00691–CR | affirming that she believed that appellant had executed his
Opinion issued December 30, 2014 pleas knowingly, voluntarily, and after a full discussion of
the consequences of his pleas. The trial court found
On Appeal from the 184th District Court, Harris County, sufficient evidence of appellant’s guilt in both cases and
Texas, Trial Court Case Nos. 1305438 and 1305439 that appellant had entered his guilty pleas freely,
knowingly, and voluntarily. And it admonished appellant
Attorneys and Law Firms of his legal rights, accepted his guilty pleas, and ordered a
Jani Maselli, Assistant Public Defender, Houston, TX, for presentence investigation in each case.
appellant.
At the sentencing hearing, appellant moved to withdraw
Devon Anderson, District Attorney, Jessica Akins, his guilty pleas, arguing that they had been coerced. After
Assistant District Attorney, Houston, TX, for State. finding that appellant had pleaded guilty freely and
voluntarily, the trial court denied his motion.
Panel consists of Justices Jennings, Sharp, and Brown.
In its judgment of conviction in each case, the trial court
ordered appellant to pay $634 in court costs, including, as
part of the “Sheriff’s Fee,” a $50 charge for “serving
capias”2 and a $5 charge for an arrest without a warrant or
OPINION capias.3 The trial court also included within the $634 of
court costs a $250 “DNA Record Fee.”4 Appellant then
Terry Jennings, Justice filed his motions for new trial and in arrest of judgment,
*1 Appellant, Osmin Peraza, without an agreed which the trial court denied without a hearing.
punishment recommendation from the State, pleaded
guilty to two separate offenses of aggravated sexual
assault of a child less than fourteen years of age.1 The trial
court assessed his punishment at confinement for twenty-
five years for each offense, with the sentences to run Withdrawal of Guilty Pleas
concurrently. In four issues, appellant contends that each *2 In his first issue, appellant argues that the trial court
judgment contains an erroneous and unsupported erred in denying his motion to withdraw his guilty pleas
“Sheriff’s Fee” and an unconstitutional “DNA Record because he did not enter the pleas voluntarily.
Fee,” the trial court erred in not permitting him to
withdraw his guilty pleas, and it erred in denying him a A defendant may withdraw his guilty plea at any time
hearing on his motions for new trial and in arrest of before judgment is pronounced or the trial court takes the
judgment. plea under advisement. Jackson v. State, 590 S.W.2d 514,
515 (Tex.Crim.App.1979); State v. Ellis, 976 S.W.2d 789,
We modify the trial court’s judgments and affirm as 792 (Tex.App.–Houston [1st Dist.] 1998, no pet.). Once a
modified. plea has been taken under advisement or guilt has been
adjudicated, however, a request to withdraw the plea is
untimely, and the withdrawal of the plea is within the
sound discretion of the trial court. Jackson, 590 S.W.2d at
515; Ellis, 976 S.W.2d at 792. After the trial court has
Background admonished the defendant and received the plea and
A Harris County Grand Jury issued a true bill of evidence, the passage of the case for a presentence
indictment, accusing appellant of committing two investigation constitutes taking the case under
separate offenses of aggravated sexual assault of a child advisement. See Jackson, 590 S.W.2d at 514–15;
11
Wissinger v. State, 702 S.W.2d 261, 262–63 (Tex.App.–
Houston [1st Dist.] 1985, pet. ref d). Because appellant *3 In regard to appellant’s assertion that his guilty pleas
did not request that his guilty pleas be withdrawn until were coerced, we note that “a plea is involuntary when it
after the trial court had taken his cases under advisement, is ‘induced by threats, misrepresentations, or improper
we review the trial court’s denial of his motion to promises’ ” by the prosecutor, judge, or law enforcement
withdraw his pleas for an abuse of discretion. officials. Rios v. State, 377 S.W.3d 131, 136 (Tex.App.–
Houston [1st Dist.] 2012, pet. ref’d) (quoting Kniatt v.
A trial court abuses its discretion when it acts arbitrarily, State, 206 S.W.3d 657, 664 (Tex.Crim.App.2006)).
unreasonably, or without reference to any guiding rules or Moreover, we presume the regularity of the judgments
principles. Lyles v. State, 850 S.W.2d 497, 502 and proceedings, and appellant has the burden of
(Tex.Crim.App.1993); Montgomery v. State, 810 S.W.2d overcoming this presumption. Dusenberry, 915 S.W.2d at
372, 380 (Tex.Crim.App.1990). To show that the trial 949.
court abused its discretion when it refused to allow
appellant to withdraw his guilty pleas, he must show that Appellant presented no evidence that his guilty pleas were
“the trial court’s rulings lie outside the zone of reasonable actually coerced. At his sentencing hearing, appellant’s
disagreement.” Jagaroo v. State, 180 S.W.3d 793, 802 trial counsel suggested that appellant was coerced into
(Tex.App.–Houston [14th Dist.] 2005, pet. ref’d). pleading guilty because the jury was “on the way” and
appellant had failed a polygraph test immediately before
Appellant first argues that there is no evidence that he admitting to a police officer that he had committed the
voluntarily entered his pleas because there is no record of sexual-assault offenses. The record, however, contains no
the trial court’s oral discussion with him of his legal evidence that anyone coerced appellant into pleading
rights. We consider the entire record in determining guilty. Appellant voluntarily submitted to a polygraph
whether a plea was entered voluntarily. Fimberg v. State, test, and neither his failure of the polygraph test, nor the
922 S.W.2d 205, 207 (Tex.App.–Houston [1st Dist.] immediacy of a jury trial, constituted a threat,
1996, pet. ref’d). A prima facie presumption that a misrepresentation, or improper promise. Thus, appellant
defendant voluntarily and knowingly pleaded guilty arises has not overcome the presumption that he knowingly and
when the trial court finds that the defendant was properly voluntarily entered his pleas.
admonished. See Martinez v. State, 981 S.W.2d 195, 197
(Tex.Crim.App.1998); see also TEX.CODE CRIM. When appellant requested to withdraw his guilty pleas,
PROC. ANN. art. 26.13(b) (Vernon Supp.2014) (guilty the trial court had taken his cases under advisement and
pleas may not be accepted unless mentally competent reset them for a punishment hearing. Because the trial
defendant enters plea freely and voluntarily). When the court had already admonished appellant of his legal rights
record presents a prima facie showing that the plea was and he had already voluntarily pleaded guilty, his request
entered voluntarily and knowingly, “the burden shifts to to withdraw his pleas was untimely, and the trial court
the defendant to show that he entered the plea without had discretion to accept or deny his motion. See Jackson,
understanding the consequences.” Arreola v. State, 207 590 S.W.2d at 515.
S.W.3d 387, 391 (Tex.App.–Houston [1st Dist.] 2006, no
pet.). Accordingly, we hold that the trial court did not err in
denying appellant’s motion to withdraw his guilty pleas.
Here, the absence of a recorded plea colloquy, alone, does
not overcome the presumption that appellant was properly We overrule appellant’s first issue.
admonished and understood the consequences and nature
of his pleas. See Dusenberry v. State, 915 S.W.2d 947,
949–52 (Tex.App.–Houston [1st Dist.] 1996, pet. ref’d)
(concluding guilty plea voluntary because defendant
received written admonishments of legal rights). Court Costs for Arrest
Although the plea colloquy was not recorded, appellant In his second issue, appellant argues that the trial court’s
received written admonishments of his legal rights, judgments are invalid because they each contain an
affirmed that he was mentally competent and understood erroneous and unsupported “Sheriff’s Fee.” Appellant
the nature of the charges against him and the asserts that, “[a]t the very least, the $50.00 Sheriff’s Fee
consequences of his pleas, and agreed that he freely and [for serving a capias] should be removed” from the $634
voluntarily pleaded guilty in each case. Further, the plea in court costs assessed against him in each judgment.
papers show that appellant’s trial counsel and the trial
court both verified that appellant entered his guilty pleas A criminal defendant must pay certain statutorily
freely, knowingly, and voluntarily, after having fully mandated costs and fees, which vary depending on the
discussed his pleas and their consequences with counsel. type of offense, the underlying facts, and the procedural
On this record, there is no evidence that appellant was not history of the case. See TEX. GOV’T CODE ANN. §
properly admonished or failed to understand the 102.021 (Vernon Supp.2014) (listing court costs upon
consequence or nature of his pleas. conviction); TEX. LOC. GOV’T CODE ANN.. § 133.102
12
(Vernon Supp.2014) (same). The district court clerk must Constitutionality of “DNA Record Fee”
keep a record of each fee or cost charged for a service In his third issue, appellant argues that the trial court’s
rendered in a criminal action or proceeding. TEX. CODE judgments are invalid because they each assess an
CRIM. PROC. ANN. art. 103.009(a)(1) (Vernon 2006). If unconstitutional $250 “DNA Record Fee.” See TEX.
a criminal action is appealed, an officer of the court must CODE CRIM. PROC. ANN. art. 102.020(a)(1) (Vernon
certify and sign a bill of costs and send it to the appellate Supp.2014) (authorizing collection of $250 from persons
court. TEX. CODE CRIM. PROC. ANN. art. 103.006 convicted of offenses listed in Texas Government Code
(Vernon 2006). section 411.1471(a)(1)). Appellant asserts that the fee
required by article 102.020 is facially unconstitutional
Court costs do not constitute part of the guilt or sentence under the separation of powers clause of the Texas
of a criminal defendant—“they are ‘a nonpunitive Constitution. See TEX. CONST. art. II, § 1.
recoupment of the costs of judicial resources expended in
connection with the trial of a case.’ ” Johnson v. State, Whether a statute is facially constitutional is a question of
423 S.W.3d 385, 390 (Tex.Crim.App.2014) (quoting law that we review de novo. Ex Parte Lo, 424 S.W.3d 10,
Armstrong v. State, 340 S.W.3d 759, 767 14 (Tex.Crim.App.2013); Ma loney v. State, 294 S.W.3d
(Tex.Crim.App.2011)). Therefore, we review the 613, 626 (Tex.App.–Houston [1st Dist.] 2009, pet. ref’d).
assessment of court costs to determine whether there is a When reviewing a constitutional challenge, we “presume
basis for the cost; we do not undertake an evidentiary- that the statute is valid and that the legislature was neither
sufficiency review. Id. unreasonable nor arbitrary in enacting it.” Curry v. State,
186 S.W.3d 39, 42 (Tex.App.–Houston [1st Dist.] 2005,
*4 Here, the trial court clerk’s bills of costs each include a no pet.); see also State v. Rosseau, 396 S.W.3d 550, 557
$50 charge for “serving capias” as part of the “Sheriff’s (Tex.Crim.App.2013). If the statute can be construed in
Fee” assessed against appellant. See TEX. CODE CRIM. two different ways, one of which sustains its validity, we
PROC. ANN. art. 102.011(a)(2) (Vernon Supp.2014) (“A apply the interpretation that sustains its validity. Maloney,
defendant convicted of a felony or a misdemeanor shall 294 S.W.3d at 625.
pay ... $50 for executing or processing an issued arrest
warrant, capias, or capias pro fine....”). They also include The party challenging the statute bears the burden of
a $5 charge for an arrest without a warrant/capias. See id. establishing the statute’s unconstitutionality. Rosseau,
art. 102.011(a)(1) (authorizing $5 charge for arrest 396 S.W.3d at 557; Curry, 186 S.W.3d at 42. “A facial
without warrant). The State agrees that the records do not challenge to a statute is the most difficult challenge to
support the $50 charge for “serving capias.” And the mount successfully because the challenger must establish
records contain no basis to conclude that capiases were that no set of circumstances exists under which the statute
issued for appellant’s arrest. will be valid.” Santikos v. State, 836 S.W.2d 631, 633
(Tex.Crim.App.1992); see also Rosseau, 396 S.W.3d at
The proper remedy for such an unsupported fee is for the 557. We “must uphold the challenged statute if it can be
appellate court to modify the judgment, not to grant a new reasonably construed in a manner consistent with the
trial as appellant has requested. See TEX. R. APP. P. legislative intent and is not repugnant to the
43.2(b); French v. State, 830 S.W.2d 607, 609 Constitution.” Curry, 186 S.W.3d at 42.
(Tex.Crim.App.1992) (agreeing “appellate court has
authority to reform a [trial court] judgment to ... make the *5 Article 102.020(a)(1), titled “Costs Related to DNA
record speak the truth when the matter has been called to Testing,” provides that a defendant convicted of certain
its attention by any source”); see also Nolan v. State, 39 offenses, including aggravated sexual assault of a child
S.W.3d 697, 698 (Tex.App.–Houston [1st Dist.] 2001, no less than fourteen years of age, “shall pay as a cost of
pet.) (“An appellate court has the power to correct and court: $250 [upon] conviction....” TEX. CODE CRIM.
reform a trial court judgment ‘to make the record speak PROC. ANN. art. 102.020(a)(1). Thirty-five percent of
the truth when it has the necessary data and information to the revenue received from this “DNA Record Fee” is
do so ....’ ” (quoting Asberry v. State, 813 S.W.2d 526, dedicated to the state highway fund, while sixty-five
529 (Tex.App.–Dallas 1991, pet. ref’d))). percent of the revenue is dedicated to the general revenue
fund of the criminal justice planning account. Id. art.
Because there is no basis in the record to support the $50 102.020(h).
charge for “serving capias” assessed against appellant as
part of the “Sheriff’s Fee” in both of appellant’s cases, we Appellant argues that the “DNA Record Fee” is an
modify each judgment to delete the $50 charge from the impressible tax collected by the judiciary, rather than a
court costs. legitimate court cost, because revenue from this fee is
dedicated to the state highway fund and criminal justice
We sustain appellant’s second issue. planning account and, thus, used for services that are
neither necessary nor incidental to the trial of a criminal
case. In support of his argument, appellant principally
relies on Ex Parte Carson, 143 Tex.Crim. 498, 159
13
S.W.2d 126 (1942). 222.002 (Vernon 2011) (emphasis added). “[T]he
department” referenced in section 222.002 is the Texas
In Carson, the Texas Court of Criminal Appeals Department of Transportation (“TxDOT”). Id. §
considered whether it was constitutionally permissible to 201.001(a)(2) (Vernon Supp.2014); see also State v.
impose a $1 fee as a court cost in all cases filed in Montgomery Cnty., 338 S.W.3d 49, 56 (Tex.App.–
counties with more than eight district courts or more than Beaumont 2011, pet. denied) (noting “ ‘[d]epartment’
three county courts at law. 159 S.W.2d at 127. The means the Department of Transportation”).
revenue collected from the $1 fee was directed to the
“County Law Library Fund” and “available to be used for *6 Here, the “DNA Record Fee” revenue dedicated to the
certain costs and expenses in acquiring, maintaining and state highway fund does not constitute money that is
operating a law library available to the judges of the required, by either the Texas Constitution or federal law,
courts and to the attorneys of litigants.” Id. The court held to be used for public roadways. See TEX. CODE CRIM.
that the fee constituted an unconstitutional tax, not a PROC. ANN. art. 102.020(a)(1); TEX. TRANSP. CODE
legitimate court cost, because it was “neither necessary ANN. § 222.001(a). Therefore, pursuant to section
nor incidental to the trial of a criminal case.” Id. at 127, 222.002, such money may be used for any function of
130. The court cautioned that to hold otherwise, TxDOT. See TEX. TRANSP. CODE ANN. §§ 201,001,
222.002.
would lead into fields of
expenditures which may as well The stated mission of TxDOT is to “[w]ork with others to
include the cost of the court houses, provide safe and reliable transportation solutions for
the automobiles which officers use Texas.”5 Inside TxDOT: Mission, Goals and Values, TEX.
to apprehend criminals and even DEP’T TRANSP., http://www.txdot.gov/inside-
the roads upon which they ride. If txdot/contact-us/mission.html (last visited Dec. 16, 2014);
something so remote as a law see also Glenn T. Hasler, Dangerous Distractions: The
library may be properly charged to Problematic Use of Wireless Communication Devices
the litigant on the theory that it While Driving, 12 TEX. TECH. ADMIN. L.J. 155, 168
better prepares the courts and the (2010) (“TxDOT’s purpose is to facilitate effective
attorneys for the performance of movement throughout the state by providing safe,
their duties, it occurs to us that we efficient transportation systems.”); Kyle R. Baum,
might as logically tax an item of Comment, Rollin’ on Down the Rail: Can Texas Lead the
cost for the education of such Nation in Developing Efficient High–Speed Rail this Time
attorneys and judges and even the Around?, 45 TEX. TECH. L.REV. ONLINE 1, 2 (2013)
endowments of the schools which (TxDOT’s “core mission is to ‘provide safe and efficient
they attend. movement of people and goods, enhance economic
viability and improve the quality of life for people that
Id. at 127. travel in the state of Texas by maintaining existing
roadways and collaborating with private and local entities
Appellant, likening the “DNA Record Fee” to the law to plan, design, build and maintain expanded
library fee in Carson, first asserts that the portion of the transportation infrastructure’ ”).
“DNA Record Fee” dedicated to the state highway fund
“is used ... [to] provide services that are neither necessary TxDOT is divided into twenty-two divisions, ranging
nor incidental to the trial of a criminal case.” from aviation to maritime to public transportation and
rail, which are tasked with handling the responsibilities of
By law, “[m]oney that is required to be used for public the department. See TEX. TRANSP. CODE ANN. §
roadways by the Texas Constitution or federal law and 201.202(a) (Vernon Supp.2014) (“The commission shall
that is deposited in the state treasury to the credit of the organize the department into divisions to accomplish the
state highway fund, ... may be used only: (1) to improve department’s functions ... including divisions for: (1)
the state highway system; (2) to mitigate adverse aviation; (2) highways and roads; and (3) public
environmental effects that result directly from transportation.”); Inside TxDOT: Divisions, TEX. DEP’T
construction or maintenance of a state highway by the TRANSP., http:// www.txdot.gov/inside-
department; or (3) by the Department of Public Safety to txdot/division.html (last visited Dec. 16, 2014) (“From
police the state highway system and to administer state rail crossings to right of way, traffic cameras to travel
laws relating to traffic and safety on public roads.” TEX. maps, and bridge inspections to bid opportunities,
TRANSP. CODE ANN. § 222.001(a) (Vernon 2011) TxDOT’s divisions handle a diverse range of services for
(emphasis added). Section 222.002 supplements this the agency.”).
instruction and provides that “[m]oney in the state
highway fund that is not required to be spent for public TxDOT is responsible for developing a statewide
roadways by the Texas Constitution or federal law may be transportation plan for addressing all modes of
used for any function performed by the department.” Id. § transportation, including highways and turnpikes,
14
aviation, mass transportation, railroads, high-speed Supp.2014) (crime laboratory accreditation process).
railroads, and water traffic. See TEX. TRANSP. CODE Because “[s]ubchapter G governs the collection and
ANN. § 201.601(a) (Vernon Supp.2014); Robbins v. management of DNA samples, including [a]ppellant’s, by
Limestone Cnty., 114 Tex. 345, 268 S.W. 915, 920 (1925) [the Texas Department of Public Safety (“DPS”) ]” and
(agency created to “formulate and execute plans and “[s]ection 411.0205 regulates the accreditation of forensic
policies for the location, construction and maintenance of crime laboratories by DPS,” our dissenting colleague
a comprehensive system of state highways and public concludes that “the portion of the DNA Record Fee
roads”); see also TEX. TRANSP. CODE ANN. §§ credited to the state highway fund is used to defray the
201.6011–622 (Vernon 2011 & Supp.2014) (listing plans costs associated with collecting, storing, and testing DNA
and projects of TxDOT); Brian K. Carroll, The Road samples” and, thus, “paying for DNA sampling and
Goes on Forever and the Claims Process Never Ends: An crime-lab accreditation is a valid, constitutional use of the
Approach for Success in Handling Texas Department of DNA Record Fee under Carson.”
Transportation Construction Claims, 13 TEX. TECH.
ADMIN. L.J. 233, 234 (2012) (“The projects range from In reaching his conclusion, however, our dissenting
small landscaping and guardrail projects to major colleague fails to consider the entire breadth of subchapter
interchanges.... TxDOT also supervises the construction G. For instance, the “DNA Database” provided for in
of buildings for rest areas, area engineer’s offices, district chapter 411, subchapter G is used for a wide variety of
offices, visitor’s centers, and other special purpose purposes, including “assisting in the recovery or
buildings....”). identification of human remains from a disaster or for
humanitarian purposes,” “assisting in the identification of
*7 The court in Carson, which constitutes binding living or deceased missing persons,” “establishing a
precedent on this Court,6 held that fees which are “neither population statistics database,” “assisting in identification
necessary nor incidental to the trial of a criminal case” are research, forensic validation studies, or forensic protocol
not legitimate courts costs that may be assessed against a development,” and “retesting to validate or update the
defendant. 159 S.W.2d at 127, 130. As discussed above, original analysis or assisting in database or DNA
the responsibilities of TxDOT, which under the Code of laboratory quality control.” Id. § 411.143(c) (Vernon
Criminal Procedure is entitled to use thirty-five percent of 2012). And the database contains DNA records from a
the revenue collected by the “DNA Record Fee,” do not whole host of individuals, such as “an unidentified
relate to the trial of a criminal case. Instead, the missing person or unidentified skeletal remains or body
responsibilities of TxDOT are far more remote from a parts,” “a close biological relative of a person who has
criminal trial than the county law libraries which were to been reported missing,” and “a person at risk of becoming
be used by the judges and attorneys for trial preparation in lost, such as a child or a person declared ... mentally
Carson. Thus, it cannot be reasonably concluded that the incapacitated.” Id. § 411.142(g) (Vernon 2012). Notably,
portion of the revenue collected through the “DNA none of the above statutory purposes or the individual
Record Fee” and dedicated to the state highway fund records in the DNA Database relate to appellant’s
constitutes a proper court cost to be assessed against criminal trial, despite the fact that thirty-five percent of
appellant or any other criminal defendant. the revenue collected via the “DNA Record Fee” may be
utilized by DPS to “defray the cost of administering”
Accordingly, we hold that the portions of articles chapter 411, subchapter G.7 See id. § 411.145(c).
102.020(a)(1) and 102.020(h) requiring the collection of
the “DNA Record Fee” from appellant to be dedicated the *8 The Texas Court of Criminal Appeals has clearly
state highway fund constitute an unconstitutional tax. See favored a strict definition of what constitutes a legitimate
Carson, 159 S.W.2d at 127, 130. But see O’Bannon v. court cost that may be assessed against a criminal
State, 435 S.W.3d 378, 380–82 (Tex.App.–Houston [14th defendant. See Carson, 159 S.W.2d at 127; see also
Dist.] 2014, no pet.). Salinas v. State, 426 S.W.3d 318, 329–30 (Tex.App.–
Houston [14th Dist.] 2014, no pet.) (Jamison, J.,
We note that our dissenting colleague would not hold that dissenting) (explaining Carson constitutes binding
the portion of the “DNA Record Fee” revenue dedicated precedent and “the Carson Court clearly favored a strict
to the state highway fund is an unconstitutional tax. In definition of permissible ‘court costs’ in a criminal case”).
doing so, he relies on Texas Government Code section And the revenue collected via the “DNA Record Fee” to
411.145(c), which provides that “[a] fee collected under be used by DPS for anything covered by chapter 411,
this section shall be deposited in the state treasury to the subchapter G, or for crime laboratory accreditation under
credit of the state highway fund, and money deposited to Government Code section 411.0205, is not closely
the state highway fund under this section and under enough related to appellant’s criminal trial to be
Articles 42.12 and 102.020(h), Code of Criminal considered constitutional.
Procedure, may be used only to defray the cost of
administering [chapter 411, subchapter G] and Section Appellant, again relying on Carson, next asserts that the
411.0205.” TEX. GOV’T CODE ANN. § 411.145(c) portion of the “DNA Record Fee” dedicated to the general
(Vernon 2012); see also id. § 411.0205 (Vernon revenue fund of the criminal justice planning account also
15
constitutes an unconstitutional tax. this section do not supplant state or local funds;
The criminal justice planning account is administered by (8) monitor and evaluate programs and projects
the Criminal Justice Division (“CJD”) of the Governor’s funded under this section, cooperate with and render
Office. See TEX. GOV’T CODE ANN. § 772.006(a)(2) technical assistance to state agencies and local
(Vernon 2012). Appellant asserts that the CJD’s “mission governments seeking to reduce crime or enhance the
is to create and support programs that protect people from performance and operation of the criminal justice
crime, reduce the number of crimes committed, and to system, and collect from any state or local
promote accountability, efficiency, and effectiveness government entity information, data, statistics, or
within the criminal justice system.” He notes that it other material necessary to carry out the purposes of
“focuses on the enhancement of Texas’[s] capacity to this section;
prevent crime, provide service and treatment options,
enforce laws, train staff and volunteers, and the *9 (9) submit a biennial report to the legislature
restoration of crime victims to full physical, emotional reporting the division’s activities during the
and mental health.” Appellant argues that because “the preceding biennium including the comprehensive
courts [are] never mentioned” as part of the CJD’s state criminal justice plans and other studies,
mission or focus, the revenue collected via the “DNA evaluations, crime data analyses, reports, or
Record Fee” is not used by the CJD for services that are proposed legislation that the governor determines
necessary or incidental to the trial of a criminal case. appropriate or the legislature requests; and
The Texas Government Code reveals that the CJD was (10) perform other duties as necessary to carry out
established to: the duties listed in this subsection and adopt rules
and procedures as necessary.
(1) advise and assist the governor in developing
policies, plans, programs, and proposed legislation Id.
for improving the coordination, administration, and
effectiveness of the criminal justice system; In regard to the CJD’s administration of the criminal
justice planning account, the legislature determines and
(2) administer the criminal justice planning fund; appropriates the necessary amount of money from the
criminal justice planning fund to the CJD. TEX.CODE
(3) prepare a state comprehensive criminal justice CRIM. PROC. ANN. art. 102.056(a) (Vernon
plan, to update the plan annually based on an Supp.2014). The CJD then uses this money to “[s]upport
analysis of the state’s criminal justice problems and a wide range of projects designed to reduce crime and
needs, and to encourage identical or substantially improve the criminal and juvenile justice systems.”8 CJD
similar local and regional comprehensive criminal Funding Sources, OFFICE OF GOVERNOR,
justice planning efforts; CRIMINAL JUSTICE DIV., 1, http://governor.state.tx.us/
files/cjd/CJD_Funding_Sources.pdf (last visited Dec. 16,
(4) establish goals, priorities, and standards for 2014); see also TEX. CODE CRIM. PROC. ANN. art.
programs and projects to improve the administration 102.056(a) (money from criminal justice planning fund
of justice and the efficiency of law enforcement, the used by CJD “for state and local criminal justice
judicial system, prosecution, criminal defense, and projects,” with not less than twenty percent of such
adult and juvenile corrections and rehabilitation; money going to juvenile justice programs); Financial
Services: Grants over $25,000 Administered by the Office
(5) award grants to state agencies, units of local of the Governor, OFFICE OF GOVERNOR,
government, school districts, and private, nonprofit http://governor.state.tx.us/financial-services/grants/ (last
corporations from the criminal justice planning fund visited Dec. 16, 2014) (grants from criminal justice
for programs and projects on consideration of the planning fund “support a wide range of projects designed
goals, priorities, and standards recommended by the to reduce crime and improve the criminal [and] juvenile
Criminal Justice Policy Council; justice systems”); Helpful Questions and Answers for
Managing Grants, OFFICE OF GOVERNOR,
(6) apply for, obtain, and allocate for the purposes of CRIMINAL JUSTICE DIV., B–12 (Feb.2014),
this section any federal or other funds which may be http://governor.state.tx.us/
made available for programs and projects that files/cjd/CJD_Guide_to_Grants_v7.pdf (same).
address the goals, priorities, and standards
established in local and regional comprehensive Numerous entities are eligible to apply for grants from the
criminal justice planning efforts or assist those criminal justice planning fund, including “[s]tate
efforts; agencies, units of local government, independent school
districts, nonprofit corporations, Native American tribes,
(7) administer the funds provided by this section in COGs, universities, colleges, hospital districts, juvenile
such a manner as to ensure that grants received under boards, regional education service centers, community
16
supervision and corrections departments, crime control roads upon which they ride.” 159 S.W.2d at 127.
and prevention districts, and faith-based organizations.”
CJD Funding Sources, supra, at 1; see also TEX. GOV’T Here, sixty-five percent of the revenue received through
CODE ANN. § 772.006(a)(5) (CJD awards grants from the “DNA Record Fee” is dedicated by law to the general
criminal justice planning fund “to state agencies, units of revenue fund of the criminal justice planning account in
local government, school districts, and private, nonprofit order to “[s]upport a wide range of projects designed to
corporations”); Press Release, Office of Governor, Gov. reduce crime and improve the criminal and juvenile
Perry Awards $195,000 From State Criminal Justice justice systems.” See CJD Funding Sources, supra, at 1.
Planning Funds (Jan. 28, 2008), http:// The recipients of money from the criminal justice
governor.state.tx.us/news/press-release/5133/ (grant planning fund are vastly diverse and range from state
recipients from criminal justice planning fund “include agencies to schools to hospitals and faith-based
local units of government, independent school districts, organizations. Notably, the money from the criminal
non-profit corporations, hospitals, universities, colleges, justice planning fund is not required to be directed to the
community supervision and corrections departments, law courts or to services necessarily or incidentally related to
enforcement agencies and councils of governments”). criminal trials. And often times such revenue is given to
programs that, as the court in Carson specifically noted,
*10 Moreover, the CJD has awarded money from the fund could not possibly relate to legitimate court costs. See 159
to a variety of recipients, such as the Alamo Area Council S.W.2d at 127 (costs for training and education not
of Governments for Regional Police Training Academy, legitimate court costs that may be assessed against
the Bastrop County Women’s Shelter for SAINT: Sexual criminal defendants). Accordingly, we cannot conclude
Assault Integrated Nursing Team, Fort Bend County for that the criminal justice planning account, which is
the “Saved by the Bell” Delinquency Reduction Program, funded by the “DNA Record Fee,” passes constitutional
the Katy Christian Ministries for Counseling Services for muster. See Salinas, 426 S.W.3d at 330–31 (Jamison, J.,
Victims of Domestic Violence, and The Family Place for dissenting) (concluding court costs assessed pursuant to
S.T.A.R.T. (Students Tackling Abusive Relationships Texas Local Government Code section 133.102, which
Together). See, e.g., Press Release, Office of Governor directs approximately thirteen percent of its revenue to the
Tex., Gov. Perry Awards $8 Million in Grants to Improve criminal justice planning fund, unconstitutional).
Criminal Justice Systems (Sept. 10, 2008), http://
governor.state.tx.us/news/press-release/11114/ (listing The State argues that appellant has not shown that the
seventy-nine recipients that received more than $8 million “DNA Record Fee” is unconstitutional because it “is a
in grants from criminal justice planning fund); Press one-time fee of $250” and “is certainly applicable to
Release, Office of the Governor of Tex., Gov. Perry appellant, as he was court-ordered to provide a DNA
Awards $195,000 From State Criminal Justice Planning specimen in both sexual assault cases.” The State asserts
Fund, supra (stating more than $195,000 in grants from that the “DNA Record Fee” was ordered “to reimburse
criminal justice planning fund awarded to Wood County the State for expenses incurred as a result of the felony
for Wood County Rural Prosecutor Project and prosecution [of appellant], specifically costs spent to
BeyondMissing Inc. for Texas Amber Alert Network); obtain DNA specimens in certain cases.” And “[s]ince
Press Release, Office of Governor, Governor Rick Perry this statutory assessment is reasonably related to the costs
Announces Statewide Grant to Reduce School Dropouts of administering the criminal justice system, appellant has
(Nov. 7, 2001), http:// governor.state.tx.us/ news/press- failed to show how the statute authorizing this court cost
release/4229/ (announcing $168,146 criminal justice is unconstitutional.”
planning fund grant to Behavioral Health Institute of
Waco to assist with “efforts to reduce school failure, DPS is required to collect a DNA specimen from persons
dropout rates, and juvenile crime”); see also Helpful convicted of certain crimes, including aggravated sexual
Questions and Answers for Managing Grants, supra, at assault of a child less than fourteen years of age, and
B–12 (listing activities eligible for grants from criminal maintain a database that includes, among others, these
justice planning fund, such as job training, professional DNA specimens. See TEX. GOV’T CODE ANN. §
therapy and counseling, school based delinquency 411.142 (directing DPS to maintain “computerized
prevention, substance abuse, and peer support groups). database that serves as the central depository in the state
for DNA records”); id. § 411.1471 (Vernon 2012)
With this background in mind, we turn to the propriety of (requiring collection of DNA specimen from those
the portion of the revenue collected via the “DNA Record convicted of certain crimes). As asserted by the State,
Fee” dedicated to the criminal justice planning account funds from the criminal justice planning account may be
and to be used by the CJD. As the Texas Court of used by the CJD to reimburse DPS and other law
Criminal Appeals explained in Carson, adopting a less enforcement agencies for expenses incurred in performing
than strict definition of what constitutes a legitimate court duties required by Texas Government Code section
cost “would lead into fields of expenditures which may as 411.1471, namely the taking of a DNA specimen from a
well include the cost of the court houses, the automobiles defendant, preserving of the specimen, and maintaining a
which officers use to apprehend criminals and even the collection of the specimen. See TEX.CODE CRIM.
17
PROC. ANN. art. 102.056(e); TEX. GOV’T CODE account provides services that are necessary or incidental
ANN. § 411.1471. to the trial of a criminal defendant’s case. See Carson,
159 S.W.2d at 127, 130; see also Salinas, 426 S.W.3d at
*11 Notably though, reimbursement for expenses related 332 (Jamison, J., dissenting) (“Although it appears some
to the collection and maintenance of DNA specimens is of the funds that go to the fair defense account may
not automatic or guaranteed under Texas Code of ultimately help provide counsel for indigent criminal
Criminal Procedure article 102.056(e); the statute only defendants, it does not appear that this is the sole use that
provides that DPS will be reimbursed with funds from the can be made for these funds.... It therefore cannot be said
criminal justice planning account after it complies with that either the training fund or the fair defense account are
certain procedures. See TEX. CODE CRIM. PROC. necessary or incidental expenses in the trial of appellant’s
ANN. art. 102.056(e) (law enforcement agency, incurring criminal case.”).
expenses in previous calendar quarter, must, on first day
after end of calendar quarter, send certified statement of Accordingly, we hold that the portions of article
costs incurred to CJD). Thus, although appellant provided 102.020(a)(1) and article 102.020(h) requiring the
a DNA specimen to DPS in accordance with section collection of the “DNA Record Fee” from appellant to be
411.1471 in conjunction with his cases, it cannot be dedicated to the general revenue fund of the criminal
assumed that DPS was automatically reimbursed by virtue justice planning account constitute an unconstitutional
of the “DNA Record Fee” for any expenses associated tax. See Carson, 159 S.W.2d at 127, 130. But see
with the collection of his specimen. O’Bannon, 435 S.W.3d at 381.
Further, we note that even if we presume that some of the *12 We note that our sister court has recently criticized
revenue collected pursuant to the “DNA Record Fee” is the reasoning of the Texas Court of Criminal Appeals
actually used to reimburse DPS or other law enforcement opinion in Carson as “ ‘both abbreviated and bereft of
agencies for collecting DNA specimens from criminal citations to supporting authority.’ ” O’Bannon, 435
defendants, preserving such specimens, and maintaining a S.W.3d at 381 (quoting Salinas, 426 S.W.3d at 326). In
record of such collections, it is readily apparent that this is “[a]ssuming arguendo that Carson requires a statute
not the only way in which the revenue is used. Sixty-five imposing court costs to be ‘necessary or incidental to the
percent of the revenue collected through the “DNA trial of a criminal case,’ ” the Fourteenth Court of
Record Fee” is dedicated to the general revenue fund of Appeals held that the defendant’s facial constitutional
the criminal justice planning account. As outlined above, challenge to article 102.020 failed because he did not
money in the criminal justice planning fund is given to a “establish[ ] how the funds will be used once they are
vast number of diverse entities, almost of none of which distributed to the state highway fund and the criminal
have any relation to the collection of a defendant’s DNA justice planning account.” Id. at 381–82. It asserted that
specimen or a criminal trial. See, e.g., TEX. CODE the defendant merely “infer[ed]” that revenue collected
CRIM. PROC. ANN. art. 102.056(a) (money from pursuant to article 102.020(a)(1) will “flow ‘directly to
criminal justice planning fund is used for “state and local the executive branch [to be] used for policy purposes’ ” or
criminal justice projects,” with not less than twenty to the state highway fund, “not [to] be used for purposes
percent of such funds directed to juvenile justice necessary or incidental to DNA collection or testing.” Id.
programs); TEX. GOV’T CODE ANN. § 772.006(a)(5) at 382.
(CJD awards grants from criminal justice planning fund
“to state agencies, units of local government, school We respectfully disagree with our sister court for the
districts, and private, nonprofit corporations”); Press reasons outlined above. In short, we first note that the
Release, Office of Governor, Gov. Perry Awards $8 reasoning of the Texas Court of Criminal Appeals in
Million in Grants to Improve Criminal Justice Systems, Carson is sound and it constitutes binding precedent upon
supra (listing seventy-nine recipients that received more it and lower courts. See Reed v. Buck, 370 S.W.2d 867,
than $8 million in grants from criminal justice planning 870–71 (Tex.1963) (explaining simply because certain
fund); Press Release, Office of Governor, Gov. Perry cases had “not been cited in recent years,” such “ancient
Awards $195,000 from State Criminal Justice Planning cases” do not “just fade[ ] away”; instead, “unless there is
Funds, supra (stating more than $195,000 in grants from some good reason for overruling them, they should not be
criminal justice planning fund awarded to Wood County disregarded”); Purchase v. State, 84 S.W.3d 696, 701
for Wood County Rural Prosecutor Project and (Tex.App.–Houston [1st Dist.] 2002, pet. ref’d) (“[W]e
BeyondMissing Inc. for Texas Amber Alert Network); are bound by the decisions of our state’s highest criminal
Press Release, Office of Governor, Governor Rick Perry court.”). Second, we note that criminal defendants
Announces Statewide Grant to Reduce School Dropouts, similarly situated to appellant are not asking appellate
supra (announcing $168,146 criminal justice planning courts to “infer” how the revenue from the “DNA Record
fund grant to Behavioral Health Institute of Waco to assist Fee” will be directed. As discussed above, the revenue, by
with “efforts to reduce school failure, dropout rates, and statute, is dedicated by law for expenditures that are far
juvenile crime”). Thus, it cannot be reasonably concluded removed from actual “court costs.” A plain reading of the
that the revenue dedicated to the criminal justice planning pertinent statutes reveals this undeniable fact.
18
requires him to “establish that no set of circumstances
We sustain appellant’s third issue.9 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
Conclusion Carson standard. I would, therefore, affirm the
Having held that the “DNA Record Fee” assessed against constitutionality of the fee.
appellant pursuant to article 102.020(a)(1) and article
102.020(h) constitutes an unconstitutional tax, we modify
each judgment to delete the $250 charge from the
assessed court costs. See Cates v. State, 402 S.W.3d 250, A. Reviewing a facial challenge
252 (Tex.Crim.App.2013) (holding proper remedy when When reviewing the constitutionality of a statute, “an
trial court erroneously includes amounts as court costs is appellate court must presume that the statute is valid and
to modify judgment to delete erroneous amounts); that the legislature was neither unreasonable nor arbitrary
Sturdivant v. State, 445 S.W.3d 435, 443 (Tex.App.– in enacting it.” Curry v. State, 186 S.W.3d 39, 42
Houston [1st Dist.] 2014, pet. ref d) (holding trial court (Tex.App.–Houston [1st Dist.] 2005, no pet.) (citing Ex
erroneously included attorney pro tern fees as court costs parte Granviel, 561 S.W.2d 503, 511
and modifying judgment accordingly); see also TEX. R. (Tex.Crim.App.1978)). A reviewing court must make
APP. P. 43.2(b). every reasonable presumption in favor of the statute’s
constitutionality, unless the contrary is clearly shown.
Further, as noted above, having held that there is no basis Granviel, 561 S.W.2d at 511; see TEX. GOV’T CODE
in the record to support the charge for “serving capias,” ANN. § 311.021 (West 2013) (noting that courts presume
we also modify each judgment to delete the $50 charge “compliance” with Texas and United States
from the assessed court costs. See French, 830 S.W.2d at Constitutions).
609 (agreeing “appellate court has authority to reform a
[trial court] judgment to ... make the record speak the To prevail, the party asserting a facial challenge “must
truth when the matter has been called to its attention by establish that the statute always operates
any source”); Nolan, 39 S.W.3d at 698 (“An appellate unconstitutionally in all possible circumstances.”
court has the power to correct and reform a trial court Rosseau, 396 S.W.3d at 557. When construing a statute,
judgment ‘to make the record speak the truth when it has courts consider, among other factors, the object sought to
the necessary data and information to do so ....’ ” (quoting be attained by the legislation, laws on the same or similar
Asberry, 813 S.W.2d at 529)); see also TEX. R. APP. P. subjects, and the consequences of a particular
43.2(b). construction. TEX. GOV’T CODE ANN. § 311.023
(West 2013); see State v. Neesley, 239 S.W.3d 780, 784
*13 We affirm the judgment of the trial court as modified. (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
Harvey Brown, Justice, Concurring and Dissenting can be reasonably interpreted in a manner that does not
offend the constitution, a reviewing court must overrule a
I join with the Court’s conclusions that the trial court did facial challenge to the statute’s constitutionality. Curry,
not abuse its discretion in denying Appellant’s motion to 186 S.W.3d at 42.
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 B. Constitutionality of the DNA Record Fee benefiting
unconstitutional. the criminal-justice planning account
*14 Appellant argues that the DNA Record Fee
unconstitutionally benefits the criminal-justice planning
account because the account is “too remote” to be
considered a necessary or incidental cost of prosecuting a
Facial Challenge to the DNA Record Fee criminal case as required under Carson, 159 S.W.2d at
Appellant argues that the statute authorizing collection of 127 (concluding that law library fee is remote and
the fee is facially unconstitutional under the separation- unconstitutional). The Court agrees and cites several
of-powers clause of the Texas Constitution. TEX. possible uses of money from the criminal-justice planning
CONST. art. II, § 1. Under that provision, a statute account that are not related to the prosecution of a
authorizing a court to collect costs “neither necessary nor criminal case. This approach is contrary to the standard
incidental to the trial of a criminal case” is not valid. Ex that applies to claims that a statute is facially
parte Carson, 143 Tex.Crim. 498, 159 S.W.2d 126, 127 unconstitutional because (1) it diminishes the challenger’s
(1942). Appellant makes only a facial challenge, which
19
burden to demonstrate that all—not some—applications through a grant [of money from the
of a statute are unconstitutional; and (2) it runs afoul of criminal-justice planning account]
precedent by favoring an unconstitutional reading over a shall reimburse the law
constitutional reading when construing statutes. I would enforcement agency for the costs
construe the criminal-justice planning account in its not later than the 30th day after the
statutory context, situated among related statutes, and date the certified statement is
conclude that Appellant has not demonstrated that all received. If the criminal justice
applications of the statute are unconstitutional under the division does not reimburse the law
Carson standard. enforcement agency before the 90th
day after the date the certified
The Department of Public Safety (“DPS”) is required to statement is received, the agency is
collect a DNA specimen from every person charged with not required to perform duties
certain categories of crimes, including the crime involved imposed under Section 411.1471 or
here—aggravated sexual assault of a child under 14 years Subchapter B–1, Chapter 420,
of age—and to create a database cataloging the DNA Government Code, as applicable,
specimens. TEX. GOV’T CODE ANN. § 411.142 (West until the agency has been
2012) (directing DPS to maintain “computerized database compensated for all costs for which
that serves as the central depository in the state for DNA the agency has submitted a certified
records” that is compatible with FBI’s national DNA statement under this subsection.
identification index system); id. § 411.1471 (West 2012)
(requiring collection of DNA specimens from people Id. Thus, the Court’s skepticism is unjustified given the
charged with or convicted of certain crimes, including wording of the statute regarding reimbursement to fund
aggravated sexual assault of child under 14 years of age); the DNA project.
TEX. PENAL CODE ANN. § 22.021 (West Supp.2014)
(defining aggravated sexual assault of child under 14 The Court also insists that, even if DPS were reimbursed,
years of age). The criminal-justice planning account the fee is nevertheless unconstitutional because the
allocates funds toward the collection and management of criminal-justice planning account funds other unrelated
this statewide criminal DNA database. See TEX.CODE projects. Following this analysis, it would be enough for a
CRIM. PROC. ANN. art. 102.056 (West Supp.2014). party bringing a facial constitutional challenge to show
Specifically, subsection (e) of article 102.056 directs the that some possible applications of a statute are
Legislature to unconstitutional to justify invalidating every application
of that statute. That is the wrong standard. See Santikos,
determine and appropriate the 836 S.W.2d at 633 (“[T]he challenger must establish that
necessary amount from the criminal no set of circumstances exists under which the statute will
justice planning account to the be valid.”). While money from the criminal-justice
criminal justice division of the planning account apparently funds other programs in
governor’s office for addition to the DNA database, Appellant presents no
reimbursement in the form of evidence that the DNA Record Fee revenue does anything
grants to the Department of Public more than reimburse the criminal-justice planning account
Safety of the State of Texas and for its DNA-database expenditures. Appellant appears to
other law enforcement agencies for concede that reimbursement for these expenditures would
expenses incurred in performing not violate Carson. I agree.
duties imposed on those agencies
under Section 411.1471 or *15 I would hold that collecting the DNA Record Fee to
Subchapter B–1, Chapter 420, benefit the criminal-justice planning account is
Government Code, as applicable. constitutional because these funds may be allocated to the
statewide criminal DNA database. Because such an
Id. allocation would be constitutional, Appellant fails to meet
his burden of showing that every application of the statute
After looking outside the record to press releases and web would result in constitutional injury. See Rosseau, 396
sites, the Court insists that “it cannot be assumed that S.W.3d at 557 (noting moving party has burden of
DPS was automatically reimbursed by virtue of the ‘DNA demonstrating statute’s unconstitutionality in “all its
Record Fee’ for any expenses associated with the possible applications.”). Accordingly, I would conclude
collection of [Appellant’s] sample” and therefore the fee that Appellant has failed to demonstrate that the portion
is an unconstitutional tax. This conclusion does not of the DNA Record Fee that benefits the criminal-justice
account for the remainder of subsection (e), which planning account is an unconstitutional tax.
continues:
The criminal justice division
20
C. Constitutionality of the DNA Record Fee benefiting Fee revenue in the state highway fund to DPS for DNA
the state highway fund sampling and crime-lab accreditation prevails over the
Likewise, Appellant has not demonstrated that the portion general statute relied upon by the Court.
of the DNA Record Fee that benefits the state highway
fund is facially invalid. Pursuant to article 102.020(h) of I would further hold that paying for DNA sampling and
the Texas Code of Criminal Procedure, a portion of crime-lab accreditation is a valid, constitutional use of the
collected DNA Record Fee revenue goes into the state DNA Record Fee under Carson. The trial court ordered
highway fund. “[M]oney deposited to the state highway Appellant to surrender a DNA sample as part of the
fund under ... 102.020(h), Code of Criminal Procedure, investigation of this case. The fee is therefore “necessary
may be used only to defray the cost of administering or incidental” to the trial of Appellant’s case. See
[subchapter G of chapter 411] and Section 411.0205” of generally TEX. GOV’T CODE ANN. § 411.143(a) (West
the Texas Government Code. TEX. GOV’T CODE ANN. 2012) (“The principal purpose of the DNA database is to
§ 411.145 (West 2012). Subchapter G governs the assist a federal, state, or local criminal justice agency in
collection and management of DNA samples, including the investigation or prosecution of sex-related offenses or
Appellant’s, by DPS. See TEX. GOV’T CODE ANN. § other offenses in which biological evidence is
411.1471. Section 411.0205 regulates the accreditation of recovered.”).
forensic crime laboratories by DPS. TEX. GOV’T CODE
ANN. § 411.0205 (West 2012). Thus, under the Texas *16 The Court concludes that the fee is an
Government Code, the portion of the DNA Record Fee unconstitutional tax because the revenue could possibly
credited to the state highway fund is used to defray the benefit other activities unrelated to the statewide DNA
costs associated with collecting, storing, and testing DNA database. In doing so, the Court again relies on web sites
samples. outside the record because Appellant has provided no
record evidence of how the funds are expended and
The Court relies on section 222.002 of the Texas relieves Appellant of his burden when bringing a facial
Transportation Code, which states that money in the state constitutional challenge.
highway fund not earmarked for public roadways “may be
used for any function performed by” the Texas Because Appellant has not demonstrated that every
Department of Transportation (“TxDOT”). TEX. application of the statutes assigning DNA Record Fee
TRANSP. CODE ANN. § 222.002 (West 2011) revenue to the state highway fund would be
(emphasis added). TxDOT does not manage DNA-sample unconstitutional, I would conclude that Appellant did not
collection, management, or testing. But TxDOT does not demonstrate that the portion of the DNA Record Fee that
have exclusive access to the state highway fund. Rather, benefits the state highway fund is facially
the Transportation Code simply states a general rule that unconstitutional.
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 Conclusion
ANN. § 411.145 (emphasis added). Having determined that both portions of the DNA Record
Fee—the 65% that benefits the criminal-justice planning
When two statutes concern the same issue, the two should account and the 35% that benefits the state highway
be read together as one law, and an appellate court should fund—are sufficiently related to the prosecution of a
attempt to harmonize any conflicting provisions. Garrett criminal case, I would conclude that Appellant failed to
v. State, 424 S.W.3d 624, 629 (Tex.App.–Houston [1st satisfy his burden of demonstrating that the DNA Record
Dist.] 2013, pet. ref d). If this is not possible, specific Fee is facially unconstitutional. Accordingly, I
rules prevail over general provisions, absent contrary respectfully dissent.
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
Footnotes
1 See TEX. PENAL CODE ANN. § 22.021 (Vernon Supp.2014).
2 See TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(2) (Vernon Supp.2014) (imposing $50 charge “for executing or processing
an issued arrest warrant, capias, or capias pro fine”).
3 See id. art. 102.011(a)(1) (imposing $5 charge for arrest without warrant).
21
4 See TEX. CODE CRIM. PROC. ANN. art. 102.020(a)(1) (Vernon Supp.2014) (authorizing collection of $250 fee from persons
convicted of offenses listed in Texas Government Code section 411.1471(a)(1)). We refer to the fee assessed pursuant to article
102.020(a)(1) as a “DNA Record Fee” because it is so labeled in the trial court clerk’s bill of costs in each case.
5 Although our dissenting colleague calls into question the reliance on information available through the Texas Department of
Transportation’s website, we note that this Court and others have repeatedly taken judicial notice of information available on
various websites, including governmental websites. See TEX. R. EVID. 201; see, e.g., Payan v. State, 199 S.W.3d 380, 383 & n. 4
(Tex.App.–Houston [1st Dist.] 2006, pet. ref’d) (taking judicial notice of information available on “[t]he State Library and
Archives Commission website”); see also Chen v. Hernandez, No. 03–11–00222–CV, 2012 WL 3793294, at *14 (Tex. App.–
Austin Aug. 28, 2012, pet. denied) (mem. op.) (noting trial court took judicial notice of “government websites,” including “website
for the U.S. Department of State”); Hayden v. State, 155 S.W.3d 640, 647 (Tex.App.–Eastland 2005, pet. ref’d) (taking judicial
notice of information available on “website of the United States Naval Observatory”).
6 See Reed v. Buck, 370 S.W.2d 867, 870–71 (Tex.1963) (explaining simply because certain cases had “not been cited in recent
years,” such “ancient cases” do not “just fade[ ] away”; instead, “unless there is some good reason for overruling them, they should
not be disregarded”); Purchase v. State, 84 S.W.3d 696, 701 (Tex.App.–Houston [1st Dist.] 2002, pet. ref’d) (“[W]e are bound by
the decisions of our state’s highest criminal court.”).
7 We also note that under chapter 411, subchapter G, the DPS director is assigned numerous responsibilities, including “develop[ing]
biennial plans” to “improve the reporting and accuracy of the DNA [D]atabase,” “audit[ing] the records, reports, procedures, or
other quality assurance matters of any DNA laboratory,” and providing “training for collection of DNA samples,” none of which
are responsibilities that are “necessary [or] incidental to the trial of a criminal case.” See TEX. GOV’T CODE ANN. §§
411.142(e), 411.144(c), 411.146(b) (Vernon 2012); Ex Parte Carson, 143 Tex.Crim. 498, 159 S.W.2d 126, 127, 130 (1942)
(discounting notion funds for training constitute legitimate court costs).
8 We again note that our dissenting colleague calls into question the reliance on information available through the website of the
Office of the Governor. However, as stated previously, this Court and others have repeatedly taken judicial notice of information
available on various websites, including governmental websites. See TEX. R. EVID. 201; see, e.g., Payan, 199 S.W.3d at 383 & n.
4; see also Chen, 2012 WL 3793294, at *14; Hayden, 155 S.W.3d at 647.
9 In his fourth issue, appellant argues that the trial court erred in not granting him a hearing on his motions for new trial and in arrest
of judgment because “[t]o properly challenge the constitutionality of the DNA fees and the faulty Sheriff’s fee, a hearing was
necessary.” Appellant filed his motions in the trial court asserting that “[t]he fees from the Sheriff reflected on the bill[s] of costs
are wholly unsupported and erroneous” and “[t]he DNA court costs are unconstitutional.” Given our disposition of appellant’s
second and third issues, we do not reach the issue of whether the trial court erred in not granting appellant a hearing on his motions
for new trial and in arrest of judgment. See TEX. R. APP. P. 47.1.
1 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”).
22