State’s Motion for Rehearing Granted, Appellant’s Motion for Rehearing
Denied, Affirmed, and Majority Opinion and Concurring and Dissenting
Opinion on Rehearing filed October 11, 2018.
In The
Fourteenth Court of Appeals
NO. 14-16-00658-CR
JERMAINE EARVIN JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 1444554
MAJORITY OPINION ON REHEARING
The court denies appellant’s motion for rehearing. A majority of the court
grants the State’s motion for rehearing. The court’s opinion and judgment issued
March 27, 2018 is withdrawn and the following opinion is issued in its stead.
Appellant Jermaine Earvin Johnson challenges his conviction for aggravated
robbery, asserting that the trial court lacked jurisdiction over his case because a
grand jury impaneled by a district court other than the trial court presented the
indictment to the trial court. Appellant also contends that article 102.004(a) of the
Texas Code of Criminal Procedure, which governs jury fees paid by convicted
defendants, violates the separation-of-powers clause of the Texas Constitution.
Finally, appellant urges that the imposition of a jury fee against those convicted by
a jury violates the constitutional right of trial by jury.
We conclude, unanimously, that the trial court had jurisdiction over the case.
All members of the panel join in section III.A of this opinion on rehearing.
Regarding appellant’s facial constitutional challenge to the jury fee, however, a
majority of the court on rehearing holds that article 102.004(a) is not facially
unconstitutional on the grounds that it violates the separation-of-powers clause. As
to appellant’s third issue, a majority holds that the imposition of this jury fee does
not violate the constitutional right to a trial by jury. Accordingly, the trial court’s
judgment is affirmed.
I. Background
The grand jury for the 209th District Court of Harris County presented an
indictment charging appellant with aggravated robbery. That indictment was filed
in the 263rd District Court of Harris County, the court in which the State’s
complaint had been filed. The judge of the 263rd District Court conducted a jury
trial of the charged offense. The jury found appellant guilty as charged and
assessed punishment at 27 years’ confinement. The trial court ordered appellant to
pay court costs. The bill of costs, which totaled $334, included a $40 “jury fee”
charge.
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II. Issues
Appellant raises three issues in this court:
(1) The 263rd District Court of Harris County did not have jurisdiction over
appellant’s case because the grand jury for the 209th District Court of Harris
County presented the indictment to the 263rd District Court, and that
presentment does not vest jurisdiction in the 263rd District Court.
(2) The jury fee is unconstitutional because having the trial court collect the
fee makes the court a tax gatherer, which violates the Texas Constitution’s
separation-of-powers clause.
(3) The jury fee violates the accused’s right to a jury trial enshrined in the
Texas Bill of Rights.
III. Analysis
A. The Trial Court’s Jurisdiction
In his first issue, appellant argues that the trial court, the 263rd District
Court, lacked jurisdiction over this case because a grand jury impaneled by the
209th District Court presented the underlying indictment to the 263rd District
Court. Appellant contends that the grand jury for the 209th District Court should
present indictments only to the 209th District Court and that this grand jury had no
authority to present an indictment to the 263rd District Court. Appellant argues
that because the grand jury for the 209th District Court did not present the
indictment to the 209th District Court, that court lacked jurisdiction over the
indictment, and because the grand jury had no authority to present the indictment
to the 263rd District Court, that court lacked jurisdiction. According to appellant,
if a grand jury impaneled by one district court presents an indictment to a different
district court, then no district court has jurisdiction over the indictment. Appellant
concedes that if the grand jury had presented the indictment to the 209th District
Court, that court would have had jurisdiction over the indictment and that court
3
would have had authority to transfer the case to the 263rd District Court.
Appellant notes that the record does not reflect any transfer in this case.
The Texas Code of Criminal Procedure sets forth the organization and duties
of a grand jury. See Tex. Code Crim. Proc. arts. 19.01-20.22. A trial court forms,
impanels, and empowers a grand jury to inquire into indictable offenses, including
aggravated robbery. See id. art. 20.09 (“The grand jury shall inquire into all
offenses liable to indictment of which any member may have knowledge, or of
which they shall be informed by the attorney representing the State, or any other
credible person.”); Ex parte Edone, 740 S.W.2d 446, 448 (Tex. Crim. App. 1987)
(“Once formed and impaneled by the district judge, the grand jury shall inquire
into all offenses liable to indictment.” (internal quotations omitted)). Because a
grand jury’s deliberations are secret, it retains a “separate and independent nature
from the court.” Ex parte Edone, 740 S.W.2d at 448.
After hearing testimony, a grand jury votes as to the presentment of an
indictment. See Tex. Code Crim. Proc. art. 20.19 (“After all the testimony which
is accessible to the grand jury shall have been given in respect to any criminal
accusation, the vote shall be taken as to the presentment of an indictment . . . .”);
Ex parte Edone, 740 S.W.2d at 448. An indictment is “a written instrument
presented to a court by a grand jury charging a person with the commission of an
offense.” Tex. Const. art. V, § 12(b); see also Tex. Code Crim. Proc. art. 21.02
(setting out requirements of indictment).
“[I]f nine members concur in finding the bill,” the State prepares the
indictment and the grand jury foreman signs it and delivers it to the judge or the
clerk of the court. See Tex. Code Crim. Proc. arts. 20.19-.21; Bourque v. State,
156 S.W.3d 675, 678 (Tex. App.—Dallas 2005, pet. ref’d). An indictment is
considered “‘presented’ when it has been duly acted upon by the grand jury and
4
received by the court.” Tex. Code Crim. Proc. art. 12.06. Thus, presentment
occurs when an indictment is delivered to either the judge or the clerk of the court.
See Tex. Code Crim. Proc. art. 20.21; State v. Dotson, 224 S.W.3d 199, 204 (Tex.
Crim. App. 2007).
The district clerk for each county “is the clerk of the court for all the district
courts in that county.” Henderson v. State, 526 S.W.3d 818, 820 (Tex. App.—
Houston [1st Dist.] 2017, pet. ref’d) (internal quotations omitted). If a signed
indictment features an original file stamp of the district clerk’s office, this file
stamp is strong evidence that a returned indictment was “presented” to the court
clerk within the meaning of article 20.21. Dotson, 224 S.W.3d at 204 (because
indictment “bears an original file stamp, that fact convincingly shows the
presentment requirement was satisfied”). Once an indictment is presented,
jurisdiction vests with the trial court. Tex. Const. art. V, § 12(b); Dotson, 224
S.W.3d at 204; Cook v. State, 902 S.W.2d 471, 476 (Tex. Crim. App. 1995).
All district courts in Harris County share the same original jurisdiction in
felony criminal cases. See Tex. Code Crim. Proc. art. 4.05; Tex. Gov’t Code
§ 74.094; Saldivar v. State, 542 S.W.3d 43, 45 (Tex. App.—Houston [14th Dist.]
2017, pet. filed). This shared administration allows district judges to “adopt rules
governing the filing and numbering of cases, the assignment of cases for trial, and
the distribution of the work of the courts as in their discretion they consider
necessary or desirable for the orderly dispatch of the business of the courts.” Tex.
Gov’t Code § 24.024; see also Saldivar, 542 S.W.3d at 45.
Thus, in multi-court counties, such as Harris County, although a specific
district court may impanel a grand jury, it does not necessarily follow that all cases
considered by that court’s grand jury are assigned to that court. See Henderson,
526 S.W.3d at 820; Davis v. State, 519 S.W.3d 251, 255 (Tex. App.—Houston [1st
5
Dist.] 2017, pet. ref’d); (“If a grand jury in one district court returns an indictment
in a case, the case nevertheless may be then assigned to any district court within
the same county.”); Bourque, 156 S.W.3d at 678; see also Tamez v. State, 27
S.W.3d 668, 670 n.1 (Tex. App.—Waco 2000, pet. ref’d) (noting “the judges of the
Harris County district courts exercising criminal jurisdiction have adopted a
procedure by which indictments are filed in each court on a rotating basis without
reference to the court which empaneled the grand jury presenting the
indictments”). In other words, one court may impanel a grand jury, and if an
indictment is presented, the case may be filed in another court of competent
jurisdiction within the same county. See Saldivar, 542 S.W.3d at 45-46; Davis,
519 S.W.3d at 255.
The 209th and 263rd District Courts, both district courts in Harris County,
Texas, share the same clerk, i.e., the Harris County District Clerk, and both courts
have original jurisdiction in felony criminal cases. The State filed in the 263rd
District Court a complaint, alleging that “on or about October 9, 2014,” appellant
“did then and there unlawfully[,] while in the course of committing theft of
property owned by [the complainant], and with intent to obtain and maintain
control of the property, intentionally and knowingly threaten and place [the
complainant] in fear of imminent bodily injury and death,” and appellant “did then
and there use and exhibit a deadly weapon, namely, a firearm.” (emphasis
omitted.) The grand jury returned a true bill of indictment concerning the same
conduct. See Tex. Const. art. V, § 12(b); Tex. Code Crim. Proc. art. 21.02 (setting
out requirements of indictment); State v. Smith, 957 S.W.2d 163, 164-65 (Tex.
App.—Austin 1997, no pet.) (“The constitutional requisites for an indictment . . .
are satisfied by a written instrument accusing a person of the commission of a
criminal offense with enough clarity and specificity to identify the penal statute
6
under which the State intends to prosecute . . . .”). That indictment was presented
to the Harris County District Clerk, as demonstrated by the clerk’s original file
stamp, and filed in the 263rd District Court, the trial court in which the State’s
complaint was filed. See Davis, 519 S.W.3d at 254 (noting that after the grand jury
votes concerning presentment of an indictment, the State files in any court that has
jurisdiction over the case).
Appellant asserts that two cases—Ex parte Dobbs, 978 S.W.2d 959 (Tex.
Crim. App. 1997) and Lytle v. Halff, 12 S.W. 610 (Tex. 1889)—support his
contention that the trial court did not acquire jurisdiction over his case. Neither Ex
parte Dobbs nor Lytle involve the issue in today’s case. See Ex parte Dobbs, 978
S.W.2d at 959-60; Lytle, 12 S.W. at 139.
Appellant argues that a grand jury serves a particular court and that a grand
jury impaneled by one district court cannot present an indictment to a different
district court. This court has rejected that argument before, as has the First Court
of Appeals. See Saldivar, 542 S.W.3d at 45-46; Matthews v. State, 530 S.W.3d
744, 746 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d); Henderson, 526
S.W.3d at 819-21. Both courts have held that a trial court is not deprived of
jurisdiction over a criminal defendant in circumstances such as those presented in
today’s case. See Saldivar, 542 S.W.3d at 46; Matthews, 530 S.W.3d at 746;
Henderson, 526 S.W.3d at 819–21. At best, appellant’s arguments present a non-
jurisdictional, procedural issue related to appellant’s indictment. See Matthews,
530 S.W.3d at 746; Henderson, 526 S.W.3d at 819-21. And, although a
jurisdictional defect in an indictment may be challenged for the first time on
appeal, a procedural deficiency to an indictment may not. See Matthews, 530
S.W.3d at 746; Henderson, 526 S.W.3d at 819-21. In today’s case, appellant did
not raise this complaint in the trial court.
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Accordingly, we hold that the trial court had jurisdiction over this case and
that appellant waived any non-jurisdictional issue related to the indictment by
failing to make the complaint in the trial court. See Matthews, 530 S.W.3d at 746;
Henderson, 526 S.W.3d at 819-21. We overrule appellant’s first issue.
B. Constitutionality of Texas Code of Criminal Procedure Article
102.004(a)—Separation of Powers
In his second issue, appellant asserts that the jury-fee statute violates the
Texas Constitution’s separation-of-powers provision because the jury fee
constitutes an impermissible tax collected by the judiciary, rather than a legitimate
court cost. Article 102.004(a) imposes a $40 fee on a defendant convicted by a
jury in a constitutional county court, a county court at law, or a district court. See
Tex. Code Crim. Proc. art. 102.004(a). Appellant’s argument amounts to a facial
challenge to the constitutionality of article 102.004(a). Appellant contends that
article 102.004(a) violates the separation-of-powers provision because the statute
does not direct that the funds collected be expended for something that is a
legitimate criminal-justice purpose. The parties have not cited and research has not
revealed any case addressing this issue.
Before addressing the constitutional issues, we note that appellant did not
raise these complaints in the trial court by objecting to the imposition of court
costs. However, the record shows the court assessed the bill of costs the same date
as the judgment, but the bill of costs was not filed until three days after the
judgment. An appellant may raise complaints about court costs, including
complaints about the constitutionality of the statutes authorizing those costs, for
the first time on appeal when they are not imposed in open court. See Johnson v.
State, 537 S.W.3d 929, 929 (Tex. Crim. App. 2017) (per curiam); London v. State,
490 S.W.3d 503, 507 (Tex. Crim. App. 2016). Accordingly, preservation of these
8
complaints was not required, and we turn to the merits of appellant’s constitutional
challenges.
1. Framework and Standard of Review
We review the constitutionality of a criminal statute de novo as a question of
law. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When reviewing
the constitutionality of a statute, we presume that the statute is valid and that the
legislature was neither unreasonable nor arbitrary in enacting it. See Rodriguez v.
State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002); Eugene v. State, 528 S.W.3d 245,
250-51 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see also Tex. Gov’t Code
§ 311.021 (noting that courts presume “compliance” with Texas and United States
Constitutions). We must uphold the statute if we can apply a reasonable
construction that will render it constitutional. Ely v. State, 582 S.W.2d 416, 419
(Tex. Crim. App. [Panel Op.] 1979). We make every reasonable presumption in
favor of the statute’s constitutionality unless the contrary is clearly shown. Peraza
v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015). The party challenging the
statute has the burden to establish its unconstitutionality. Id.; Rodriguez, 93
S.W.3d at 69.
Challenges to the constitutionality of a statute may be either facial attacks or
as-applied challenges. A facial challenge is an attack on a statute itself as opposed
to a particular application. Peraza, 467 S.W.3d at 514. In such a challenge, the
challenger must establish that “no set of circumstances exists under which the
statute would be valid.” Id.; see also State v. Rosseau, 396 S.W.3d 550, 557 (Tex.
Crim. App. 2013) (the party asserting a facial challenge “must establish that the
statute always operates unconstitutionally in all possible circumstances.”). Under
the proper facial-challenge analysis regarding court costs, courts consider only
applications of a statute which the statute actually authorizes or prohibits, not how
9
or where the collected fees might actually be spent. See Peraza, 467 S.W.3d at
515. Because a facial challenge attacks a statute’s validity in all circumstances, it
is “the most difficult challenge to mount successfully.” Santikos v. State, 836
S.W.2d 631, 633 (Tex. Crim. App. 1992).
In contrast, in an “as applied” challenge to the constitutionality of a statute,
the challenger asserts that a statute, although generally constitutional, operates
unconstitutionally as to the claimant because of his circumstances. Gillenwaters v.
State, 205 S.W.3d 534, 536 n.3 (Tex. Crim. App. 2006). We must evaluate the
statute as it has been applied against the challenger. See State ex rel. Lykos v. Fine,
330 S.W.3d 904, 910 (Tex. Crim. App. 2011); Eugene v. State, 528 S.W.3d 245,
249 (Tex. App.—Houston [14th Dist.] 2017, no pet.). As the scope of such a
challenge is necessarily narrow, we do not entertain hypothetical claims or
consider the potential impact of the statute on anyone other than the challenger.
Eugene, 528 S.W.3d at 249-50 (citing Lykos, 330 S.W.3d at 910).
2. Separation of Powers
The Texas Constitution expressly guarantees the separation of powers
among the three branches of government. Tex. Const. art. II, § 1; Salinas v. State,
523 S.W.3d 103, 106 (Tex. Crim. App. 2017). Article II, section 1 of the Texas
Constitution states:
The powers of the Government of the State of Texas shall be divided
into three distinct departments, each of which shall be confided to a
separate body of magistracy, to wit: Those which are Legislative to
one; those which are Executive to another, and those which are
Judicial to another; and no person, or collection of persons, being of
one of these departments, shall exercise any power properly attached
to either of the others, except in the instances herein expressly
permitted.
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Tex. Const. art. II, § 1. This section ensures that the powers granted to one
governmental branch may be exercised only by that branch, to the exclusion of the
other branches. Ex parte Lo, 424 S.W.3d at 28. When one branch of government
assumes or is delegated a power more properly attached to another branch, that
assumption or delegation of power violates the separation-of-powers provision.
Salinas, 523 S.W.3d at 106-07. If a statute turns the courts into tax gatherers, then
the statute delegates to the courts a power more properly attached to the executive
branch. Id. at 107.
Precedent from the Texas Court of Criminal Appeals controls our analysis of
appellant’s constitutional challenge. In Peraza, the high court analyzed the facial
constitutionality of a $250 “DNA Record Fee” collected under Texas Code of
Criminal Procedure article 102.020(a). Peraza, 467 S.W.3d at 511. Article
102.020(h) directs that 35 percent of the collected funds be allocated to the state
highway fund, and 65 percent be allocated to the “criminal justice planning
account in the general revenue fund.” Id. The court examined whether the
appellant had met his burden of establishing that it is not possible for article
102.020 to operate constitutionally under any circumstance. Id. at 515.
Before analyzing the statute in question, the court revisited the standard for
determining whether a court cost is constitutionally valid. Id. at 516. The then-
existing test held a cost invalid when “neither necessary nor incidental to the trial
of a criminal case.” Id. at 515 (quoting Ex Parte Carson, 159 S.W.2d 126, 130
(Tex. Crim. App. 1942) (op. on reh’g)). The court concluded that costs “necessary
and incidental to criminal trials” was “too limiting” a test for constitutional validity
because it ignored a vast array of other legitimate costs neither “necessary” nor
“incidental” to criminal trials but which are nonetheless “directly related to the
recoupment of costs of judicial resources expended in connection with the
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prosecution of criminal cases within our criminal justice system.” Id. at 517.
Thus, the Peraza court articulated a new, broader standard, holding that, “if the
statute under which court costs are assessed (or an interconnected statute) provides
for an allocation of such court costs to be expended for legitimate criminal justice
purposes, then the statute allows for a constitutional application” and does not
violate the separation-of-powers provision. Id. A “criminal justice purpose,” the
court stated, is one that “relates to the administration of our criminal justice
system” and should be evaluated on a statute-by-statute/case-by-case basis. Id. at
517-18. Under Peraza’s new standard, court-cost statutes under which a court
recoups costs that are necessary and incidental to a criminal trial remain
constitutionally valid. Id. Also passing constitutional muster are those court-cost
statutes providing for an allocation of such costs to be expended for not only
criminal trials but any “legitimate criminal justice purpose.” Id. at 517.
After establishing this new test, the Peraza court proceeded to apply that test
to determine whether the appellant met his burden of establishing that it was not
possible for the statute at issue to operate constitutionally under any circumstance.
Id. at 519-21. As to the portion of the fee allocated to the criminal justice planning
account, the court held that the appellant did not meet his burden because the
statute allowed for constitutional applications. As the court reasoned, “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.” Id. at 519. “The statutory scheme,” the court continued,
“allocating these resources to the criminal justice planning account are required,
via interconnected statutory provisions, to be expended for legitimate criminal
justice purposes. Therefore, they do not constitute a tax and thus do not violate the
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separation of powers clause.” Id. As to the portion of the fee allocated to the state
highway fund, the court concluded that the statutory directives at issue mandated
that the fees be “used to defray the costs associated with collecting, storing, and
testing DNA samples,” which, likewise, is a legitimate criminal justice purpose.
Id. at 520-21. Thus, the appellant failed to meet his burden of showing that the
legislative allocation of the fees allowed no possible constitutional use in all
circumstances. Id. at 521.
In upholding the statute, the Peraza court explained why the court of appeals
erred in holding that the appellant met his burden on a facial challenge. The court
of appeals had reasoned that, even if the fee reimbursed the Department of Public
Safety for DNA-related expenses, the fee was nevertheless unconstitutional
because “the criminal justice planning account funds other projects that are not
related to managing the statewide DNA database.” Id. at 519. The Peraza court
rejected this line of thinking because it would allow a party bringing a facial
challenge to invalidate every application of a court-cost statute by showing one
possible impermissible application. See id. As the Peraza court made clear,
however, an appellant will not prevail on a facial challenge by showing merely that
some applications benefit activities or persons unrelated to legitimate criminal
justice purposes, but rather an appellant must show that the statute in question
operates unconstitutionally in all possible circumstances.
Two years later, in Salinas v. State, 523 S.W.3d 103, 106-10 (Tex. Crim.
App. 2017), the Court of Criminal Appeals addressed the facial constitutionality of
a statute requiring every convicted felon to pay $133 as part of a “Consolidated
Court Cost” fee. See Tex. Loc. Gov’t Code § 133.102. The legislature allocated
portions of the fee to two accounts at issue: the “comprehensive rehabilitation”
account and the “abused children’s counseling” account. Salinas, 523 S.W.3d at
13
107. The question was whether the two accounts “meet the requirement that the
relevant statutes provide for an allocation of funds ‘to be expended for a legitimate
criminal justice purpose.’” Id.
Turning first to the comprehensive rehabilitation account, the court noted
that the account is a general revenue fund dedicated to provide rehabilitation
services—administered within the authority of the Health and Human Services
Commission—to eligible individuals under vocational or other programs
established to provide rehabilitation services. Id. at 107-08. Examining the
relevant statutes, the Salinas court concluded that the “uses to which the money is
directed do not relate to the criminal justice system.” Id. at 109. The court reached
this conclusion because “[n]o criminal justice purpose is even mentioned” in the
statutory text. Id. at 108. “Nothing in the statute that describes the functions of the
HHSC restricts its mission to, or even mentions, anything relating to criminal
justice.” Id. (emphasis added). Because the legislative directives at issue in
Salinas did not constitute any legitimate criminal justice purpose, the court held
that the fee operates unconstitutionally every time the fee is collected and thus was
facially invalid. See id. at 109 & n.26.1 Similarly, with respect to the portion of
the fees directed to the abused children’s counseling account, the court found these
amounts were allocated to the general revenue fund, which does not qualify as a
legitimate criminal justice purpose. Id. at 110. Thus, the import of Salinas’s
holding was that the appellant met his burden of showing that the statute in
question operates unconstitutionally in all possible circumstances. Cf. Peraza, 456
S.W.3d at 515, 516, 519. Viewing the statutes at issue in Salinas, the legislature
1
Since Salinas, the Court of Criminal Appeals has reiterated that the portion of the
“Consolidated Court Cost” fee that allocates funds received from the fee to the “comprehensive
rehabilitation” account is unconstitutional. See Johnson v. State, 537 S.W.3d 929 (Tex. Crim.
App. 2017).
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had not directed that the fees be used for anything constituting a legitimate
criminal justice purpose.
With this framework in mind, we turn to the statute at issue here. Article
102.004 provides:
(a) A defendant convicted by a jury in a trial before a justice or
municipal court shall pay a jury fee of $3. A defendant in a justice or
municipal court who requests a trial by jury and who withdraws the
request not earlier than 24 hours before the time of trial shall pay a
jury fee of $3, if the defendant is convicted of the offense or final
disposition of the defendant’s case is deferred. A defendant convicted
by a jury in a county court, a county court at law, or a district court
shall pay a jury fee of $40.
(b) If two or more defendants are tried jointly in a justice or municipal
court, only one jury fee of $3 may be imposed under this article. If
the defendants sever and are tried separately, each defendant
convicted shall pay a jury fee.
(c) In this article, “conviction” has the meaning assigned by Section
133.101, Local Government Code.
Tex. Code Crim. Proc. art. 102.004. Article 102.004 does not allocate the jury fee
to any specific fund, nor does the statute direct how the funds collected are to be
expended. See id.
On original submission, appellant asserted that the funds collected under this
statute are deposited into the county’s general fund, and the State agreed with
appellant. On rehearing, the State maintains that the funds collected are deposited
into the fund referenced in Local Government Code section 113.004(b)(1). See
Tex. Loc. Gov’t Code § 113.004. Appellant has conceded that the funds collected
are not deposited into the county’s general fund. According to the State, Local
Government Code section 113.004 is an “interconnected” statute, under which the
legislature directs that jury fees collected under article 102.004 be spent for a
15
legitimate criminal justice purpose. Local Government Code section 113.004
provides:
(a) The county treasurer shall divide the funds received by the
treasurer’s office into three classes. The treasurer shall appropriate
the money in each class of funds to the payment of the claims
registered in the corresponding class of claims.
(b) The classes of funds consist of:
(1) jury fees, money received from the sale of estrays, and
occupation taxes;
(2) money received under the provisions of a road and bridge
law, including penalties recovered from railroads for the failure
to repair crossings, and all fines and forfeitures; and
(3) other money received by the treasurer’s office that is not
otherwise appropriated by this section or by the commissioners
court.
(c) The commissioners court, as it considers proper, may require other
accounts to be kept, creating other classes of funds. The court may
require scrip to be issued against those accounts and to be registered
accordingly.
(d) The commissioners court by order may transfer money on hand
from one fund to another as it considers necessary, but amounts that
belong to the first class of funds may not be transferred from the
payment of claims registered in that class unless there is an excess
amount in that class.
Id.
Section 113.004 directs that the county treasurer shall divide the funds
received by the treasurer’s office into three classes. See id. § 113.004(a). The
treasurer must appropriate the money in each fund to the payment of claims
registered in the class of claims corresponding to the fund. See id. The statute
requires the treasurer to put jury fees the treasurer’s office receives into the first
fund. See id. § 113.004(b). The commissioners court may transfer money on hand
from one fund to another as it considers necessary, but amounts in the first fund
16
may not be transferred from the payment of claims registered in that fund unless
there is an excess amount in that class. See id. § 113.004(d).
The critical language in section 113.004 is the directive that “[t]he treasurer
shall appropriate the money in each class of funds to the payment of the claims
registered in the corresponding class of claims.” This directive means that the $40
fee collected from defendants convicted by a jury in district court under article
102.004(a) must be deposited in the first fund under section 113.004(b)(1); in turn,
the monies in the first fund may be spent only on expenses relating to the first
fund, which expressly includes juries.2 These expenses would include those
pertaining to criminal juries, which is unquestionably related “to the administration
of our criminal justice system” and, therefore, a legitimate criminal justice
purpose. Peraza, 467 S.W.3d at 518. Thus, section 113.004 not only allows but
mandates that jury fees collected under article 102.004 be used for some legitimate
criminal justice purposes. We therefore agree with the State that appellant has not
met his burden to show that the jury fees collected under the statute cannot be used
for legitimate criminal justice purposes in all possible circumstances. See id. at
516.
Finally, contrary to appellant’s position, we do not construe Salinas as
changing the test courts apply to determine whether a statute mandating the
collection of fees in a criminal case is facially unconstitutional under the
separation-of-powers clause. Statutes providing for the collection of fees in a
2
The State asserts on rehearing that the jury fees paid under article 102.004 are funds
received by the treasurer’s office and placed in the first fund under Local Government Code
section 113.004. See Tex. Loc. Gov’t Code § 113.004 (a),(b). The State refers to the first fund
as the county “jury fund” and cites Government Code section 61.001(b) for the proposition that
the reimbursement of juror expenses under section 61.001(a) must be paid out of the county’s
jury fund. See Tex. Gov’t Code § 61.001(a), (b). In his responsive briefing on rehearing,
appellant does not dispute these assertions.
17
criminal case do not violate the separation-of-powers clause if they provide for
apportioning the fees to be spent for “legitimate criminal justice purposes.”
Peraza, 467 S.W.3d at 518. A criminal justice purpose pertains “to the
administration of our criminal justice system.” Id. Moreover, Salinas did not alter
or lessen the burden imposed on an appellant mounting a facial challenge, nor did
Salinas suggest that one could meet the burden by showing the possibility of some
unconstitutional applications of the collected funds. See Hawkins v. State, 551
S.W.3d 764, 767 (Tex. App.—Fort Worth 2017, pet. ref’d) (“The Salinas court did
not change the test we use to determine whether a statute requiring the collection
of fees in a criminal case violates the Separation of Powers clause.”). For purposes
of the present matter, the principal difference between Peraza and Salinas is that
the challenger failed to meet his burden in the former case, but met it in the latter
case. The present matter is like Peraza and not Salinas because appellant failed to
establish no possible constitutional applications of the jury fee. This interpretation
of Peraza and Salinas favors a constitutional reading of the relevant statutes over
an unconstitutional one. See Peraza, 467 S.W.3d at 518.3
3
On rehearing, the State argues that whether the relevant statutes specifically direct that
the funds be spent for criminal justice purposes is not dispositive because the jury fees at issue
here clearly reimburse costs incurred in the past related to criminal jury trials. According to the
State, under Peraza, the fees are “directly related to the recoupment of costs of judicial resources
expended in connection with the prosecution of criminal cases.” Peraza, 467 S.W.3d at 517.
The State posits that we may draw a distinction between certain types of court costs depending
upon their intended uses. Some court costs reimburse expenses already incurred in a criminal
prosecution; other court costs are to be expended to offset certain future criminal-justice costs.
As the State suggests, we may reasonably read Salinas’s requirements as inapplicable to those
costs that reimburse past expenses. If that is so, the State argues, then the jury fee is
constitutional regardless whether the legislature has directed how the funds collected are to be
spent. We need not address this point because we conclude that appellant has failed to meet his
burden on a facial challenge even assuming Salinas applies.
18
For these reasons, we overrule appellant’s challenge to the constitutionality
of Texas Code of Criminal Procedure article 102.004 under the separation-of-
powers clause.
C. Constitutionality of Texas Code of Criminal Procedure Article
102.004(a)—Right to Trial by Jury
In his third issue, appellant asserts that this statutory jury fee also violates
the Texas constitutional right to a trial by jury. Article I, section 15 of the Texas
Constitution provides, “The right of trial by jury shall remain inviolate.” Tex.
Const. art. I, § 15. Appellant first asserts that the imposition of the jury fee on
convicted defendants violates the constitutional right to trial by jury because
defendants who exercise their right to a jury trial are “charged for that exercise” if
found guilty. He contends the statute is both facially unconstitutional and
unconstitutional as applied to indigent defendants. Appellant acknowledges that
no Texas authority supports his position.
Appellant asserts that the jury fee is unconstitutional on its face because
“such a fee effectively serves to dissuade defendants from exercising their
constitutional right to a jury trial.” Appellant, however, fails to explain how the
imposition of a fee after conviction prevents defendants from exercising their right
to trial by jury. See, e.g., Peraza, 467 S.W.3d at 514 (prevailing on a facial
challenge requires party to establish that statute always operates
unconstitutionally). Appellant was not dissuaded from exercising his right to a
jury trial in today’s case by the potential imposition of this fee, and he does not
argue otherwise. Cf. Fuller v. Oregon, 417 U.S. 40, 51-53 (1974) (concluding that
Oregon’s recoupment statute requiring defendants convicted of criminal offense to
repay legal defense costs if person subsequently acquires means to bear these costs
does not “chill” constitutional right to counsel); Eugene, 528 S.W.3d at 250-51
19
(explaining that imposing fees for summoning witnesses against indigent defendant
did not violate his constitutional rights to compulsory process or confrontation; fee
was imposed only after conviction and in no way prevented defendant from
exercising rights in the first instance). Further, none of the cases from other
jurisdictions cited by appellant hold similar fee-based statutes to be facially
unconstitutional.4
Contrary to appellant’s position, numerous rights guaranteed by the Texas
constitution may come at a cost to the person exercising them. For example, as the
State notes, the right to keep and bear arms5 is not the right to free weaponry, nor is
the right of a citizen to publish his opinions on any subject 6 the right to have
something printed for free. And the United States Supreme Court has concluded
that a convicted defendant may be held liable for the reasonable court costs of his
or her prosecution. See Fuller, 417 U.S. at 51-53. We conclude that imposition of
4
Appellant relies on cases in which courts imposed the actual expenses incurred in
providing a jury trial for the defendant, as opposed to the imposition of a statutory jury fee as we
have here. See State v. Hanson, 92 Idaho 665, 669, 448 P.2d 758, 761-62 (1968) (remanding for
determination of what portion of costs associated with “attendance of jurors” were included in
costs assessed against defendant; “fees and expenses of jurors must be excluded” from costs
imposed); Arnold v. State, 76 Wyo. 445, 465, 468, 306 P.2d 368, 376-78 (1957) (concluding that
“taxing, as costs of prosecution, the mileage and per diem paid to all jurors on the jury panel and
the amounts paid for the services of the court bailiffs, was erroneous”); People v. Kennedy, 58
Mich. 372, 377, 25 N.W. 318, 320 (1885) (concluding that “no authority” existed to add per
diem of jurors to fine and costs assessed against defendant for misdemeanor conviction); People
v. Hope, 297 Mich. 115, 118, 297 N.W. 206, 208 (1941) (actual cost of paying jurors for jury
service were not taxable against defendant). Appellant also relies on a case from the New
Hampshire Supreme Court invalidating, on equal protection grounds, a superior court rule
requiring payment of a jury fee before misdemeanor cases could be transferred from a district or
municipal court to the superior court. State v. Cushing, 119 N.H. 147, 148, 399 A.2d 297, 298
(1979) (deciding that statute requiring payment of up-front jury fee only in certain criminal
prosecutions violated equal protection principles). Cushing does not apply to the present
circumstances, as appellant has not challenged the jury fee on equal protection grounds.
5
See Tex. Const. art. I, § 23.
6
See Tex. Const. art. I § 8.
20
a jury fee on convicted defendants under article 102.004(a) does not violate the
right to trial by jury under Texas Constitution article I, section 15.
Nor did the imposition of a jury fee on appellant in today’s case violate his
right to a jury trial. In fact, as explained above, appellant was not denied a jury
trial because he was unable to afford one, nor does appellant make this claim.7 Cf.
Eugene, 528 S.W.3d at 250-51. Thus, appellant’s as-applied challenge to this
statute also fails.
For these reasons, appellant has not met his burden of establishing that
imposition of the jury fee violates Texas Constitution article I, section 15, either
facially or as applied to him. We therefore overrule appellant’s third issue.
Conclusion
Having overruled each of appellant’s issues, we affirm the trial court’s
judgment.
/s/ Kevin Jewell
Justice
Panel consists of Chief Justice Frost and Justices Boyce and Jewell (Frost, C.J.,
concurring and dissenting).
Publish — Tex. R. App. P. 47.2(b).
7
This fact may explain why appellant attempts to bring an “as-applied” challenge to the
imposition of the jury fee on behalf of “all indigent defendants.” As explained above, the scope
of an as-applied challenge is necessarily narrow; thus, we do not consider the potential impact of
the statute on anyone other than the challenger. Eugene, 528 S.W.3d at 249-50.
21