Opinion issued February 27, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00030-CR
———————————
ALBERT FORISTER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 424th District Court
Burnet County, Texas1
Trial Court Case No. 46497
MEMORANDUM OPINION
1
The Texas Supreme Court transferred this appeal from the Court of Appeals for the
Third District of Texas. See TEX. GOV’T CODE § 73.001 (authorizing transfer of
cases between courts of appeals).
The State charged Albert Forister with first-degree-felony possession with
intent to deliver methamphetamine2 in an amount of four grams or more but less than
200 grams. See TEX. HEALTH & SAFETY CODE § 481.112(d). Forister pleaded not
guilty to the charge but pleaded “true” to both enhancement paragraphs. The jury
found Forister guilty of the lesser-included offense of possession of
methamphetamine in an amount of four grams or more but less than 200 grams, a
second-degree felony. See id. § 481.115(a), (d). The trial court sentenced Forister to
50 years’ confinement and assessed court costs totaling $399, including a $25 time
payment fee.
In his first issue, Forister contends that the $25 time payment fee3 assessed
against him should be reduced by $22.50 because 90 percent of the fee is facially
2
Methamphetamine is categorized as a “Penalty Group 1” drug in the Health and
Safety Code. See TEX. HEALTH & SAFETY CODE § 481.102(6).
3
Section 133.103 of the Local Government Code governs time payment fees. See
TEX. LOC. GOV’T CODE § 133.103. The Texas Legislature has passed legislation,
effective January 1, 2020, that deletes Subsections (c) and (d) from Section 133.103
and revises Subsection (b) to provide that all the fees collected under the section are
“to be used for the purpose of improving the collection of outstanding court costs,
fines, reimbursement fees, or restitution or improving the efficiency of the
administration of justice in the county or municipality.” See Act of May 23, 2019,
86th Leg., R.S., S.B. 346, § 2.54 (to be codified at TEX. CODE CRIM. PROC. art.
102.030). The changes apply only to a cost, fee, or fine assessed on a conviction for
an offense committed on or after the effective date of the Act. Id. § 5.01. Because
the offense in this case was committed before January 1, 2020, the former law
applies. Id.
2
unconstitutional. In his second issue, Forister contends that the judgment contains
several errors.
Constitutionality of Time Payment Fees
A. Standard of Review
There are two types of challenges to the constitutionality of a statute: (1) the
statute is unconstitutional as applied to the defendant; or (2) the statute is
unconstitutional on its face. Briggs v. State, 789 S.W.2d 918, 923 (Tex. Crim. App.
1990) (en banc). “Statutes are presumed to be constitutional until it is determined
otherwise.” Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009); see Ex
parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978) (en banc) (requiring
the appellate court to “commence with the presumption that such statute is valid and
that the Legislature has not acted unreasonably or arbitrarily in enacting the
statute.”). A person challenging the constitutionality of a statute has the burden of
establishing its unconstitutionality. Peraza v. State, 467 S.W.3d 508, 514 (Tex.
Crim. App. 2015). We should consider “the statute only as it is written, rather than
how it [may operate] in practice.” State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908
(Tex. Crim. App. 2011). To establish that a statute is facially unconstitutional the
appellant must show that “no set of circumstances exists under which that statute
would be valid.” Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992) (en
banc) (citing United States v. Salerno, 481 U.S. 739, 745 (1987)). “If a statute can
3
be construed in two different ways, one of which sustains its validity, we apply the
interpretation that sustains its validity.” Kfouri v. State, 312 S.W.3d 89, 92 (Tex.
App.—Houston [14th Dist.] 2010, no pet.). We uphold the statute if we can apply a
reasonable construction rendering the statute constitutional. Id. (citing Ely v. State,
582 S.W.2d 416, 419 (Tex. Crim. App. 1979)). Whether a criminal statute is
constitutional is a question of law that we review de novo. Ex parte Lo, 424 S.W.3d
10, 14 (Tex. Crim. App. 2013).
B. Applicable Law
A defendant may challenge the court costs assessed, including time payment
fees, for the first time on appeal. See Casas v. State, 524 S.W.3d 921, 925 (Tex.
App.—Fort Worth 2017, no pet.). The Local Government Code mandates time
payment fees. See TEX. LOC. GOV’T CODE § 133.103. Section 133.103 of the Texas
Local Government Code requires a person convicted of a criminal offense to pay a
time payment fee of $25 if the person: (1) has been convicted of a felony or
misdemeanor; and (2) pays any part of a fine, court costs, or restitution on or after
the 31st day after a judgment is entered assessing the fine, court costs, or restitution.
Id. § 133.103(a). Subsection (b) of the statute instructs the treasurer to send 50
percent of the time payment fees collected to the comptroller to be deposited to the
credit of the general revenue fund. Id. § 133.103(b). Subsection (c) instructs the
treasurer to deposit 10 percent of the fees in the general fund of the county or
4
municipality “for the purpose of improving the efficiency of the administration of
justice in the county or municipality.” Id. § 133.103(c). Subsection (d) instructs the
treasurer to deposit the remaining 40 percent of the fees in the general revenue
account of the county or municipality. Id. § 133.103(d).
The Texas Constitution expressly guarantees that powers among the three
branches of government be separated. TEX. CONST. art. II, sec. 1; Salinas v. State,
523 S.W.3d 103, 106 (Tex. Crim. App. 2017). This section ensures that the powers
granted to one governmental branch may be exclusively exercised only by that
branch. Johnson v. State, 573 S.W.3d 328, 333 (Tex. App.—Houston [14th Dist.]
2019, pet. filed) (citing Ex parte Lo, 424 S.W.3d at 28). A branch of the government
violates the separation-of-powers provision “[w]hen one branch of government
assumes or is delegated a power more properly attached to another branch.” Johnson,
573 S.W.3d at 333 (citing Salinas, 523 S.W.3d at 106–07). “The courts are delegated
a power more properly attached to the executive branch if a statute turns the courts
into ‘tax gatherers,’” but there are instances when the collection of fees in criminal
cases will be considered a part of the judicial function. For example, court costs
allocated to be expended for legitimate criminal justice purposes are permitted.
Salinas, 523 S.W.3d at 107.
A legitimate criminal justice purpose is determined on a statute-by-statute and
case-by-case basis by reviewing what the governing statute dictates as the intended
5
use of the funds. Salinas, 523 S.W.3d at 107. Whether the funds are actually used
for a legitimate criminal justice purpose is not a relevant inquiry. Id.
C. Analysis
Although Forister does not challenge the constitutionality of subsection (c) of
the Local Government Code, he argues that subsections (b) and (d) violate the
separation of powers in the Texas Constitution. TEX. CONST. art. II, sec. 1 (providing
that no branch of government “shall exercise any power properly attached to either
of the others, except in the instances herein expressly permitted”). Forister relies on
Johnson v. State, 573 S.W.3d 328 (Tex. App.—Houston [14th Dist.] 2019, pet.
filed). In Johnson, our sister court addressed whether a time payment fee violates
the separation-of-powers provision of the Texas Constitution. Id. at 340. Johnson
examined “whether [portions of] section 133.103 direct[] that the funds be used for
something that is a legitimate criminal justice purpose.” Id. Relying on Salinas, the
Johnson court held that the time payment fee authorized by subsections (b) and (d)
are directed to general revenue and do not relate to the criminal justice system
because there is no “statutory directive that the funds be used for a legitimate
criminal justice purpose.” Id. Therefore, Johnson held that portions of Section
133.103 were facially unconstitutional and reduced the appellant’s time payment fee
from $25 to $2.50. Id.
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After the Johnson decision, other Texas courts have held that Subsections (b)
and (d) are facially unconstitutional. See, e.g., Jackson v. State, No. 10-17-00333-
CR, 2020 WL 830822, at *4 (Tex. App.—Waco Feb. 19, 2020, no pet. h.) (mem.
op., not designated for publication); Ovalle v. State, --- S.W.3d ---, No. 05-19-00136-
CR, 2020 WL 364140, at *3 (Tex. App.—Dallas Jan. 22, 2020, no pet. h.); Simmons
v. State, 590 S.W.3d 702, 711 (Tex. App.—Waco 2019, pet. filed); Townsend v.
State, No. 13-18-00049-CR, 2019 WL 6205470, at *8 (Tex. App.—Corpus Christi
Nov. 21, 2019, pet. filed) (mem. op., not designated for publication); Dulin v. State,
583 S.W.3d 351, 353 (Tex. App.—Austin 2019, pet. granted); Kremplewski v. State,
--- S.W.3d ---, No. 01-19-00033-CR, 2019 WL 3720627, at *3 (Tex. App.—Houston
[1st Dist.] Aug. 8, 2019, pet. filed); King v. State, No. 11-17-00179-CR, 2019 WL
3023513, at *5 (Tex. App.—Eastland July 11, 2019, pet. filed) (mem. op., not
designated for publication).
We likewise adopt the reasoning in Johnson and conclude Subsections (b) and
(d) of Section 133.103 are facially unconstitutional. In contrast, Subsection (c),
which allocates 10 percent of the time payment fee to the general fund of the county
or municipality to improve the efficiency of the administration of justice in the
county or municipality, is facially constitutional because it allocates the funds for a
legitimate criminal justice purpose. See Peraza, 467 S.W.3d at 517. We therefore
sustain Forister’s first issue in part, deleting $22.50 from the time payment fee
7
assessed because the statute that authorizes this portion of the time payment fee is
facially unconstitutional. We overrule the remainder of Forister’s first issue.
Erroneous Judgment
In his second issue, Forister asserts that the judgment of conviction contains
an error and requests that we modify the judgment accordingly. The State concedes
that the judgment does not reflect the Health and Safety Code provision under which
Forister was convicted. The State also concedes that the judgment incorrectly recites
the degree of offense and statute for the offense. The jury convicted Forister of
second-degree-felony possession of methamphetamine in an amount of four grams
or more but less than 200 grams in violation of Texas Health and Safety Code section
481.115(a) and (d). The judgment, however, inaccurately reflects that Forister was
convicted of first-degree-felony possession with intent to deliver methamphetamine
in an amount of four grams or more but less than 200 grams in violation of Texas
Health and Safety Code Section 481.112(d).
We have the authority to correct a trial court’s judgment when we have the
necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865
S.W.2d 26, 27–28 (Tex. Crim. App. 1993) (en banc); Parlin v. State, 591 S.W.3d
214, 225 (Tex. App.—Houston [1st Dist.] 2019, no pet.). The jury’s verdict form
shows that Forister was convicted of possession, and not possession with the intent
to deliver, because it states:
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We, the jury find defendant, [Forister], GUILTY of the lesser included
offense of Possession of a Controlled Substance, to-wit:
Methamphetamine, 4 grams or more but less than 200 grams.4
We will therefore exercise our authority to amend the erroneous judgment.
Accordingly, we modify the judgment to reflect that Forister was convicted under
Texas Health and Safety Code Section 481.115(a) and (d) in trial court cause number
46497.
Conclusion
We sustain in part Forister’s first issue as to the facial constitutionality of the
time payment fee under Texas Local Government Code Section 133.103(b) and (d).
We overrule Forister’s first issue in all other respects. We sustain Forister’s second
issue as to the accuracy of the degree of offense, statute for offense, and offense of
conviction. We modify the trial court’s judgment to reduce the time payment fee
from $25 to $2.50. We also modify the trial court’s judgment of conviction to reflect
that Forister was convicted under Texas Health and Safety Code section 481.115(a)
and (d).
4
The trial court also referenced the lesser-included offense when the court announced
the judgment of conviction: “So at this point, based on the jury’s finding of guilt,
I’m going to find you guilty of possession of a controlled substance between four
and 200 grams.”
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As modified, we affirm the trial court’s judgment.
Sarah Beth Landau
Justice
Panel consists of Justices Lloyd, Landau, and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
10