COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00436-CR
ARMANDO HURTADO APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1451716D
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MEMORANDUM OPINION1
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A jury found Appellant Armando Hurtado guilty of theft of property with a
value of $2,500 or more but less than $30,000, found both of the allegations in
the “State Jail Felony Second-Degree Enhancement Notice” to be true, and
assessed his punishment at twenty years’ confinement. The trial court
sentenced Hurtado in accordance with the jury’s recommendation and assessed
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See Tex. R. App. P. 47.4.
court costs of $319, which included $133 for consolidated court costs. In a single
point, Hurtado challenges the constitutionality of section 133.102(a)(1) of the
Texas Local Government Code under which the consolidated court cost was
assessed. For the reasons set forth below, we will affirm.2
Section 133.102(a)(1) states that a person convicted of an offense shall
pay as court costs, in addition to all other costs, $133 on conviction of a felony.
Tex. Loc. Gov’t Code Ann. § 133.102(a)(1) (West Supp. 2016). Section
133.102(e) further requires the comptroller to allocate the $133 court costs to
fourteen accounts and assigns percentages to each account. Id. § 133.102(e).
The Texas Court of Criminal Appeals recently examined the fourteen
accounts listed in section 133.102(e) and determined that two accounts were not
related to a legitimate criminal justice purpose but were more accurately
characterized as a tax, thus rendering section 133.102 facially unconstitutional.
See Salinas v. State, No. PD–0170–16, 2017 WL 915525, at *4, *5 (Tex. Crim.
App. Mar. 8, 2017) (holding that subsections (e)(1) and (6), which allocated
portions of the $133 consolidated court costs to comprehensive rehabilitation and
abused children’s counseling, violated the Separation of Powers provision of the
Texas constitution). The remedy was to modify the judgment to change the $133
consolidated court costs to $119.93. Id. at *7. The court of criminal appeals,
however, limited the application of its holding to the following:
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Because Hurtado challenges only the constitutionality of the consolidated
court costs he was assessed, we omit a factual background.
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We will also apply our constitutional holding in this case to any
defendant who has raised the appropriate claim in a petition for
discretionary review before the date of this opinion, if that petition is
still pending on the date of this opinion and if the claim would
otherwise be properly before us on discretionary review. Otherwise,
our holding will apply prospectively to trials that end after the date
the mandate in the present case issues.
Id. at *6. The court of criminal appeals further stated in a footnote following the
previous paragraph that if the legislature redirected the funds in sections (e)(1)
and (6) to a legitimate criminal justice purpose, then the entire consolidated court
cost “may be collected. If that occurs before mandate issues, the only cases that
will be affected by this opinion will be the few that are now pending in this Court
and are appropriate for relief.” Id. at *6, n.54. The legislature did exactly what
the court of criminal appeals had suggested in its footnote; it deleted former
sections (e)(1) and (6), added their percentages to the fair defense account in
former section (e)(14), and made the new percentage effective June 15, 2017,
which preceded the mandate that issued in Salinas on June 30, 2017. See Tex.
Loc. Gov’t Code Ann. § 133.102(e) (West, Westlaw through 2017 R.S.).
Here, Hurtado does not argue that he falls within one of the groups
described above that is entitled to relief but instead argues that because he “has
raised the identical argument [as Salinas] in his appellate process,” we should
apply the same remedy to his appeal. This court has recently addressed
Hurtado’s argument in Horton v. State, No. 02-16-00229-CR, 2017 WL 1953333,
at *5 (Tex. App.—Fort Worth May 11, 2017, pet. filed), and Hawkins v. State, No.
02-16-00104-CR, 2017 WL 1352097, at *3 (Tex. App.—Fort Worth Apr. 13, 2017,
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pet. filed). In both cases, we sustained the appellants’ constitutional challenges
to the extent that they complained of the constitutionality of the allocation of
funds under sections 133.102(e)(1) and (6) but stated that “we heed the directive
of the Texas Court of Criminal Appeals precluding us from applying its Salinas
holding retroactively to modify [the] consolidated fee.” See Hawkins, 2017 WL
1352097, at *3; see also Horton, 2017 WL 1953333, at *5. We are required to
follow that same binding precedent here and therefore sustain Hurtado’s sole
point to the extent that it can be broadly read to challenge the specific
subsections of 133.102(e) that were held unconstitutional in Salinas, but we are
precluded from retroactively modifying Hurtado’s consolidated court costs to
delete the fees associated with those subsections. See Salinas, 2017 WL
915525, at *6; Horton, 2017 WL 1953333, at *5; Hawkins, 2017 WL 1352097, at
*3.
Having sustained Hurtado’s sole point to the extent that sections
133.102(e)(1) and (6) are unconstitutional but having recognized the limitation
placed on our ability to reform the judgment to delete the costs related to those
subsections, we affirm the trial court’s judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: WALKER, KERR, and PITTMAN, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
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DELIVERED: July 27, 2017
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