IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0170-16
ORLANDO SALINAS, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
HARRIS COUNTY
N EWELL, J. filed a dissenting opinion, in which R ICHARDSON,
J., joined.
Of late, this Court has gotten fairly adept at striking down statutes
as facially unconstitutional. Though there are some exceptions, these
cases have generally applied a different standard of review than the one
at work in this case. Those cases dealt with First Amendment,
“overbreadth” challenges rather than the type of pure facial challenge we
consider here that attacks a statute in its every application. See e.g. Ex
Salinas Dissent – 2
parte Perry, 483 S.W.3d 884 (Tex. Crim. App. 2016); State v. Johnson,
475 S.W.3d 860 (Tex. Crim. App. 2015); Ex parte Thompson, 442 S.W.3d
325 (Tex. Crim. App. 2014); Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App.
2013). The legislature even passed a law requiring courts to provide
notice to the Attorney General before holding a statute unconstitutional,
which this Court promptly held unconstitutional. See Ex parte Lo, 424
S.W.3d 10, 27 (Tex. Crim. App. 2013) (opinion on reh’g.) (holding that
section 402.010 of the Texas Government Code unconstitutional because
it violates the separation-of-powers provision of the Texas Constitution).
Nevertheless, the Court’s analysis in this regard has always been
appropriately rigorous given the drastic nature of holding a statute
unconstitutional.
That is not the case here. As Judge Yeary’s dissent explains, a true
facial challenge to a statute requires this Court to look for ways to uphold
the statute, not ways to strike the statute down. United States v.
Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative
Act, is, of course, the most difficult challenge to mount successfully, since
the challenger must establish that no set of circumstances exists under
which the Act would be valid.”). If the statute can result in the collection
of funds for a legitimate criminal justice purpose, then it is not
Salinas Dissent – 3
unconstitutional in every application. Peraza v. State, 467 S.W.3d 508,
516 (Tex. Crim. App. 2015) (“To determine whether a statute always
operates unconstitutionally in all possible circumstances, we must look to
see if there are potential applications of the statute that are
constitutionally valid.”). There is no question that funds limited at
collection to pay for comprehensive rehabilitation and abused children’s
counseling could be used for legitimate criminal justice purposes. The
Court concedes as much. Maj. op. at 7.
That is why I do not agree with the Court that the failure of a
statute to further specifically direct that the funds deposited in general
revenue be used for a criminal justice purpose–aside from the limitations
provided by the description of the fee itself and other interrelated
statutes–means the legislature drafted a facially unconstitutional court-
cost statute. Peraza, 467 S.W.3d at 519 (rejecting argument that DNA
Record Fee was facially unconstitutional simply because it was deposited
into the criminal justice planning account which funded other projects
unrelated to managing the statewide criminal DNA database). The
statutory provisions at issue are not simply general revenue collection;
they direct funds collected go to particular purposes, and there are
circumstances under which those funds would serve a legitimate criminal
Salinas Dissent – 4
justice purpose. Yet, the Court relies upon the possibility that the funds
could be used for some other, illegitimate purpose to suggest that the
statute is facially unconstitutional. On the one hand, the Court rejects
the possible use of the funds for a legitimate criminal justice purpose as
irrelevant to the analysis. But on the other, the Court links the facial
constitutional flaw to the possibility that the funds could be used for an
illegitimate purpose.
The Court compounds this problem by reading the limitations in the
statutory provisions at issue in Peraza to be a necessary condition for
constitutionality rather than merely a sufficient one. Unquestionably, the
statutes at issue in Peraza provided more express limitations on the use
of the court costs collected than are present in this case. See Peraza,
467 S.W.3d at 519. (“Because a portion of the DNA record fee collected
is deposited into the criminal justice planning account, and the criminal
justice planning account is statutorily required to reimburse monies spent
collecting DNA specimens from offenders charged with certain offenses
(including aggravated sexual assault of a child under 14), we hold that
the statute allows for constitutionally permitted applications.”). And we
rejected Peraza’s claims that the statutes providing for deposits in the
criminal justice planning account and the state highway fund were facially
Salinas Dissent – 5
unconstitutional because specific statutes limited the use of the funds for
a criminal justice purpose. Id. at 520-21. We held that Peraza, and the
First Court of Appeals, were simply wrong that some of the money
collected could be used for a purpose other than managing the statewide
criminal DNA database or defraying the cost of administering it.
Yet, we never held that those limitations were required; we simply
held that the interconnected statutory provisions “allow” for such funds
to be expended for legitimate criminal justice purposes. Id. at 521.
When we focused upon the remoteness of potential unconstitutional
“applications”, we still focused on how the money could have been spent,
not on how it had been collected. Id. at 521. (“The statutory scheme
allocating these resources to the state highway fund are required, via
interconnected statutory provisions, to be expended for legitimate
criminal justice purposes.”). And at all times we maintained that it was
the defendant’s burden to show that it was not possible for the statute to
operate constitutionally under any circumstance. Id.
If we are truly looking at whether the interconnected statutes are
facially unconstitutional without regard to how the money is spent, then
we should only be looking at whether the terms of the statutes
specifically prevent, at the time of collection, the use of the funds for any
Salinas Dissent – 6
legitimate criminal justice purpose. Peraza, 467 S.W.3d at 516 (“[W]e
cannot hold a statute requiring the assessment of court costs facially
unconstitutional simply because there might be a potential and/or remote
circumstance in which it may be applied unconstitutionally.”). If such a
statute were passed, it would, by its own terms rather than its possible
effects, be unconstitutional in all of its applications. Admittedly, such a
statute would seem unlikely to pass because it would be notoriously
unconstitutional. But that accurately reflects how difficult it should be for
the legislature to draft a statute that is unconstitutional in every
application and how easy and obvious it should be to spot such
constitutional infirmities.
The court’s requirement of an express limitation of the statutes in
question to only constitutional applications obviates the need for any
presumption of constitutionality. State v. Rosseau, 396 S.W.3d 550, 557
(Tex. Crim. App. 2013) (“[A]nalysis of a statute’s constitutionality must
begin with the presumption that the statute is valid and that the
Legislature did not act arbitrarily or unreasonably in enacting it.”).
Moreover, it turns that well-established presumption on its head and
Salinas Dissent – 7
removes any need for as-applied constitutional challenges.1 This Court’s
holding could have far-reaching consequences for facial constitutional
challenges to other statutes. That is why I whole-heartedly agree with
Judge Yeary, and why I join his dissent.
But I write separately to clarify that arguing that the statutes at
issue are constitutional is not the same thing as endorsing the
legislature’s drafting or the legislation’s effect. As the Court thoroughly
sets out, the statutes governing the collection of fees in criminal cases
are written very broadly and with no express limitations on how fees
deposited in the general revenue fund are ultimately spent, except that
they must go to comprehensive rehabilitation and abused children’s
counseling. They could be used for legitimate criminal justice purposes,
but they could also be used as a tax to fund any number of governmental
initiatives unrelated to the proper functioning of the criminal justice
system. Without the inclusions of more definite limitations, a “user-pay
system” creates a devilishly tempting incentive for a “tax-free”
governmental revenue stream. Unchecked, these types of fee statutes
1
Indeed, the Court fails to m ention any duty to em ploy a reasonable narrowing
construction of the statutes at issue to avoid a constitutional violation. See e.g. State v.
Johnson, 475 S.W .3d 860, 872 (Tex. Crim . App. 2015) (noting the duty of Texas courts to
em ploy, if possible, a reasonable narrowing construction to avoid a constitutional violation);
Ex parte Thom pson, 442 S.W .3d 325, 339 (Tex. Crim . App. 2014) (sam e).
Salinas Dissent – 8
could threaten to grow the criminal justice system atop the court-cost
equivalent of a sub-prime mortgage bubble.
That is why the recent public momentum for addressing the
collection and administration of court costs in the legislature is not at all
surprising. Many have noted that incarcerating the indigent for the failure
to pay fines and court costs threatens to turn our jails into debtors
prisons. See e.g. Cain v. City of New Orleans, 184 F. Supp. 3d. 349 (E.D.
La. 2016); Joseph Shapiro, As Court Fees Rise, The Poor are Paying the
Price, http://www.npr.org/2014/05/19/312158516/increasing-court-fees-
punish-the-poor; Shaila Dewan and Andrew W. Lehren, After a Crime, the
Price of a Second Chance, N.Y. T IMES, Dec. 12, 2016. The Chief Justice
of the Texas Supreme Court, in his recent State of the Judiciary Address,
remarked, “Jailing criminal defendants who cannot pay their fines and
court costs – commonly called debtors’ prison– keeps them from jobs,
hurts their families, makes them dependent on society and costs the
taxpayers money.” Jonathan Silver, Legislature Should Prioritize Judicial
Security, Texas Supreme Court Justice Says, Texas Tribune,
https://w w w.texastribune.org/2017/02/01/state-judiciary. The
legislature has heard these concerns and is moving to respond.
Legislation is currently pending that begins to address the serious
Salinas Dissent – 9
problems attendant to funding the criminal justice system through fees
paid by indigent criminal defendants. See Tex. H.B. 1465, 85th Leg., R.S.
(2017).
But by stepping in to address a political issue as a constitutional
one, we risk stealing that momentum away from the branch of
government best able to treat the issue as a systemic one after input
from all the relevant stakeholders. See Washington State Grange v.
Washington State Republican Party, 552 U.S. 442, 451 (2008) (noting
that, “facial challenges threaten to short circuit the democratic process
by preventing laws embodying the will of the people from being
implemented in a manner consistent with the Constitution.”); see also
Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 329
(2006) (noting that courts must keep in mind that “‘[a] ruling of
unconstitutionality frustrates the intent of the elected representatives of
the people.’”). As a Court, we can only look at the issue through an
analytical keyhole–made all the more tiny by a harshly deferential
standard of review–as each statute winds its way through the court
system. Peraza, 467 S.W.3d at 518 (“Whether a criminal justice purpose
is “legitimate” is a question to be answered on a statute-by-statute/case-
Salinas Dissent – 10
by-case basis.”).2 It is ironic that we have intruded upon the province of
another branch of government in the name of preserving the separation
of powers.
The late Supreme Court Justice Antonin Scalia famously quipped
that “a lot of stuff that’s stupid is not unconstitutional.” Jennifer Senior,
In Conversation: Antonin Scalia, N EW Y ORK M AGAZINE, Oct. 6, 2013. He
was, of course, expressing the view that not everything that is
undesirable, annoying, or even harmful rises to the level of a
constitutional crisis. Brown v. Chicago Board of Education, 824 F.3d 713,
2
The Court attem pts to am eliorate this concern by adding the issue of retroactivity to
our holding in this case and deciding it in favor of the State. I would not address an issue
the court of appeals has not had the opportunity to consider. See e.g. Arm strong v. State,
805 S.W .2d 791, 794 (Tex. Crim . App. 1991) (“This Court and the Court of Appeals are
without authority to render advisory opinions.”). Assum ing we should address it, there are
also significant problem s with the Court’s analysis, which borrows retroactivity jurisprudence
for “court-m ade” rules and applies it to a holding striking down a duly-passed statute as
facially unconstitutional. See Griffith v. Kentucky, 479 U.S. 314 (1987) (considering
retroactivity of court-m ade rule announced in Batson v. Kentucky); Stovall v. Denno, 388
U.S. 293, 296-97 (1967) (considering retroactivity of court-m ade rule regarding
adm issibility of tainted eyewitness identification testim ony). The Court fails to account for
our jurisprudence holding a statute void ab initio when it has been declared facially
unconstitutional. Sm ith v. State, 463 S.W .3d 890, 895 (Tex. Crim . App. 2015); Reyes v.
State, 753 S.W .2d 382, 383 (Tex. Crim . App. 1988); Ex parte Bockhorn, 62 Tex. Crim . App.
651, 138 S.W . 706, 707 (1911). Declaring a statute facially unconstitutional is not finding
constitutional court error or announcing a new court-m ade rule of crim inal procedure; it is
holding that the legislature passed a statute so blatantly unconstitutional it should have
never been passed. Reyes, 753 S.W .2d at 384 (holding that the determ ination that Article
32A.02 was void due to a violation of the separation of powers rendered the statute void
from inception). If we are going to address “retroactivity” at all, Reyes v. State would seem
to control. At the very least, I would not decide the issue without first ordering the parties
to brief it, assum ing it is even appropriate to address it in this case at all. Cf. Teague v.
Lane, 489 U.S. 288, 300 (1989) (deciding the issue of retroactivity of a court-m ade rule of
crim inal procedure at tim e the new rule was announced where retroactivity was raised in an
am icus brief and addressed in reference to a related claim by the parties).
Salinas Dissent – 11
714 (7th Cir. 2016). He even went so far as to suggest that judges
should be given a stamp that says, “stupid but constitutional.” Id. These
statutory provisions illustrate the need for such a stamp. If only the
Court would use it.
With these thoughts, I dissent.
Filed: March 8, 2017
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