Johnson v. State

573 S.W.3d 328

Devlon Deaquel JOHNSON, Appellant

v.The STATE of Texas, Appellee

NO. 14-18-00273-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed February 5, 2019

Rehearing Denied February 28, 2019

Stacey M. Soule, Austin, TX, Bob D. Odom, Henry L. Garza, Belton, TX, Belton, for Appellee.

Justin Bradford Smith, Temple, TX, for Appellant.

Panel consists of Justices Wise, Jewell, and Poissant.

OPINION¹

Kevin Jewell, Justice

Appellant Devlon Deaquel Johnson challenges the facial constitutionality of several court costs assessed following his guilty plea to a charge of drug possession and resulting conviction and sentence. Appellant also asserts that the trial court erred by failing to include a finding in the judgment regarding appellant’s eligibility for diligent participation credit.

We sustain in part appellant’s first issue to the extent he challenges the facial constitutionality of the time payment fee authorized by Texas Local Government Code section 133.103(a), (b), and (d). See Tex. Loc. Gov't Code § 133.103(a), (b), (d). We conclude that, with respect to the collection and allocation of funds under these sections—which are allocated to general revenue without limitation or restriction—the statute is facially unconstitutional in violation of article II, section 1 of the Texas Constitution. We overrule appellant’s first issue in all other respects. Concluding appellant’s second issue is moot, we do not reach it. We modify the trial court’s judgment in part, and affirm the judgment as modified.

Background

Both parties agree the underlying facts are irrelevant to this appeal’s disposition so we do not recount them in any detail. A Bell County grand jury indicted appellant for possession of cocaine in an amount less than one gram. After appellant pleaded guilty to the charge, the trial court sentenced appellant to eighteen months' confinement in state jail. Appellant timely appealed.

Analysis

A. Court Costs

In his first issue, appellant contends that the following court costs assessed against him after conviction are facially unconstitutional because they violate the separation of powers provision of the Texas Constitution:

• a $25 "Sheriff" fee, authorized under article 102.011 of the Texas Code of Criminal Procedure ;

• a $50 "Capias Warrant Fee," authorized under article 102.011 of the Texas Code of Criminal Procedure ;

• a $40 "District Clerk" fee, authorized under article 102.005 of the Texas Code of Criminal Procedure ;

• a $4 "Jury Service Fund SB1704" fee, authorized under article 102.0045 of the Texas Code of Criminal Procedure ;

• 10% of a $2 "Basic Criminal Legal Services" fee, authorized under section 133.107 of the Texas Local Government Code ;

• a $2 "Administrative Transaction Fee," authorized under article 102.072 of the Texas Code of Criminal Procedure ; and

• 90% of a $25 "Time Payment" fee, authorized under section 133.103 of the Texas Local Government Code.

1. Standard of review and applicable law

We review the constitutionality of a criminal statute de novo. Ex parte Lo , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013) ; Johnson v. State , 562 S.W.3d 168, 174 (Tex. App.—Houston [14th Dist.] 2018, no pet. h.) (op. on reh'g). We begin with the presumption 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.) ; Combs v. STP Nuclear Operating Co. , 239 S.W.3d 264, 271 (Tex. App.—Austin 2007, pet. denied) ; 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) ; Johnson , 562 S.W.3d at 175 ; Sheldon v. State , 100 S.W.3d 497, 500 (Tex. App.—Austin 2003, pet. ref'd). The party challenging the statute has the burden to establish its unconstitutionality. Peraza v. State , 467 S.W.3d 508, 514 (Tex. Crim. App. 2015). We make every reasonable presumption in favor of the statute’s constitutionality unless the challenger clearly shows that it is unconstitutional. Id.

To successfully attack a statute as facially unconstitutional, the challenger must establish that "no set of circumstances exists under which that 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"). For a facial-challenge analysis regarding court costs, courts will consider only applications of a statute that the statute actually authorizes or prohibits, not how 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).

The Texas Constitution expressly guarantees separated 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.

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.

If, on the other hand, "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. Peraza , 467 S.W.3d at 517 (footnote omitted). A "criminal justice purpose" 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 518.

As this court recently concluded, two types of court-cost statutes pass constitutional muster: (1) statutes under which a court recoups expenditures necessary or incidental to criminal prosecutions; and (2) statutes providing for an allocation of the costs to be expended for any legitimate criminal justice purpose. See Moliere v. State , ––– S.W.3d ––––, ––––, 2018 WL 6493882, at *5 (Tex. App.—Houston [14th Dist.] 2018, no pet. h.). Whether a statute falls within the first category is a backward-looking exercise, while an analysis under the second category is forward-looking. See id. The Court of Criminal Appeals has explained that whether a future allocation of costs relates to the administration of our criminal justice system depends on what the statute says about the intended use of the funds, not how the funds are actually used. See Salinas , 523 S.W.3d at 107, 109 n.26.

2. Application

a. Sheriff and Capias Warrant Fees

Appellant’s bill of costs assessed a $25 "Sheriff" fee and a $50 "Capias Warrant" fee. In two sub-issues, appellant challenges the entirety of subsections (a) and (b) of article 102.011 of the Texas Code of Criminal Procedure, which state:

(a) A defendant convicted of a felony or a misdemeanor shall pay the following fees for services performed in the case by a peace officer:

(1) $5 for issuing a written notice to appear in court following the defendant’s violation of a traffic law, municipal ordinance, or penal law of this state, or for making an arrest without a warrant;

(2) $50 for executing or processing an issued arrest warrant, capias, or capias pro fine with the fee imposed for the services of:

(A) the law enforcement agency that executed the arrest warrant or capias, if the agency requests of the court, not later than the 15th day after the date of the execution of the arrest warrant or capias, the imposition of the fee on conviction; or

(B) the law enforcement agency that processed the arrest warrant or capias, if:

(i) the arrest warrant or capias was not executed; or

(ii) the executing law enforcement agency failed to request the fee within the period required by Paragraph (A) of this subdivision;

(3) $5 for summoning a witness;

(4) $35 for serving a writ not otherwise listed in this article;

(5) $10 for taking and approving a bond and, if necessary, returning the bond to the courthouse;

(6) $5 for commitment or release;

(7) $5 for summoning a jury, if a jury is summoned; and

(8) $8 for each day’s attendance of a prisoner in a habeas corpus case if the prisoner has been remanded to custody or held to bail.

(b) In addition to fees provided by Subsection (a) of this article, a defendant required to pay fees under this article shall also pay 29 cents per mile for mileage required of an officer to perform a service listed in this subsection and to return from performing that service. If the service provided is the execution of a writ and the writ is directed to two or more persons or the officer executes more than one writ in a

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