King v. State

JAMES ELWOOD KING JR., Appellant v. THE STATE OF TEXAS, Appellee

No. 11-17-00179-CR

State of Texas in the Eleventh Court of Appeals

July 8, 2021

On Appeal from the 220th District Court Comanche County, Texas

Trial Court Cause No. CR-04105

MEMORANDUM OPINION ON REMAND

James Elwood King Jr. was convicted of the offense of assault family violence. In one issue on appeal, Appellant challenges the constitutionality of certain court costs assessed against him. On original submission of the appeal to this court, we sustained Appellant's challenge to the constitutionality of the time payment fee, which at that time was authorized by Section 133.103(a), (b), and (d) of the Texas Local Government Code. See King v. State, No. 11-17-00179-CR, 2019 WL 3023513, at *1 (Tex. App.—Eastland July 11, 2019), vacated, No. PD-0779- 19, 2021 WL 1939561 (Tex. Crim. App. May 12, 2021). However, the Court of Criminal Appeals vacated this court's July 11, 2019 judgment and remanded the cause to this court for further proceedings in light of its recent opinion in Dulin v. State, 620 S.W.3d 129 (Tex. Crim. App. 2021). In light of Dulin, we conclude that we need not address Appellant's challenge to the constitutionality of the time payment fee but that we must strike the time payment as prematurely assessed. We overrule Appellant's other challenges in all respects. Therefore, we modify the trial court's judgment, and as modified, we affirm.

The facts of this case are undisputed. Appellant was charged by indictment with assault family violence by choking his wife, Alma King. After the jury heard the evidence, it found Appellant guilty and found an enhancement allegation to be true, which elevated the offense to a second-degree felony. The jury assessed Appellant's punishment at confinement for ten years and a $5,000 fine. The trial court sentenced Appellant in accordance with the jury's verdict and assessed court costs of $369.

Subsequently, the Comanche County District Clerk prepared a certified bill of costs, which reflected that Appellant owed, among other amounts: $40.00 for a "CRIMINAL CLERK[']S FEE"; $4.00 for a "JUROR REIMBURSEMENT FEE"; $2.00 for the "CRIMINAL INDIGENT DEFENSE FUND"; and $25.00 for a "TIME PAYMENT FEE/STATE."

In a single issue on appeal, Appellant contends that the statutes under which the costs were imposed are facially unconstitutional because they violate the separation-of-powers clause in the Texas Constitution. As such, Appellant challenges the constitutionality of: the "CRIMINAL CLERK[']S FEE," which was authorized by former Article 102.005 of the Texas Code of Criminal Procedure; the "JUROR REIMBURSEMENT FEE," which was authorized by former Article 102.0045 of the Texas Code of Criminal Procedure; 10% of the"CRIMINAL INDIGENT DEFENSE FUND" fee, which was authorized by former Section 133.107 of the Texas Local Government Code; and 90% of the "TIME PAYMENT FEE/STATE," which was authorized by former Section 133.103 of the Texas Local Government Code.

Even though Appellant did not make these challenges in the trial court, he was not required to. The record does not reflect that the challenged court costs were imposed in open court, nor were they itemized in the judgment. Accordingly, Appellant may raise his constitutional complaints for the first time on appeal because he did not have an opportunity to timely raise them in the trial court. See London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016); Ingram v. State, 503 S.W.3d 745, 748 (Tex. App.—Fort Worth 2016, pet. ref'd).

Whether a statute is constitutional is a question of law we review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When we review issues as to the constitutionality of a statute, we "presume that the statute is valid and that the legislature was neither unreasonable nor arbitrary in enacting it." Curry v. State, 186 S.W.3d 39, 42 (Tex. App.—Houston [1st Dist.] 2005, no pet.); see TEX. GOV'T CODE ANN. § 311.021 (West 2013); Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). 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); see Maloney v. State, 294 S.W.3d 613, 626 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd) (if statute can be interpreted in two ways, one of which sustains its validity, we apply interpretation sustaining its validity). The party that challenges the statute has the burden to establish unconstitutionality. Rodriguez, 93 S.W.3d at 69; Maloney, 294 S.W.3d at 626

"A facial challenge is an attack on a statute itself as opposed to a particular application." City of Los Angeles v. Patel, 135 S.Ct. 2443, 2449 (2015). "[T]o prevail on a facial challenge, a party must establish that the statute always operatesunconstitutionally in all possible circumstances." State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). Courts are to "consider the statute only as it is written, rather than how it operates in practice." State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011); Karenev v. State, 281 S.W.3d 428, 441 (Tex. Crim. App. 2009) (Cochran, J., concurring) (facial attack "can and must be made without reference to evidence. . . . Once it does or must refer to specific evidence it has passed out of the 'facial attack' arena and has become something else.").

Appellant's facial constitutional challenges are grounded in separation-of-powers concepts. The Texas Constitution contains the separation-of-powers provision, which prohibits one branch of government from assuming or delegating a power more properly attached to another branch. See TEX. CONST. art. II, § 1; Ex parte Lo, 424 S.W.3d at 28. A court's assessment of court costs in a criminal case violates the separation-of-powers clause when a court is delegated the executive branch's power to collect taxes. Salinas v. State, 523 S.W.3d 103, 106-07 (Tex. Crim. App. 2017); Peraza v. State, 467 S.W.3d 508, 517 (Tex. Crim. App. 2015). If, for example, a statute contains a provision by which courts are turned into "tax gatherers," then the effect of the statute is to delegate to courts a power more properly attached to the executive branch. Salinas, 523 S.W.3d at 107.

However, a court's assessment of costs is a proper judicial function when "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." Id. at 107 (quoting Peraza, 467 S.W.3d at 517). In other words, a reviewing court must determine whether the fee is a disguised tax on a criminal defendant, which is unconstitutional, or a fee for a legitimate criminal justice purpose, which is constitutional. See Casas v. State, 524 S.W.3d 921, 925-27 (Tex. App.—Fort Worth 2017, no pet.). "What constitutes a legitimate criminal justice purpose is a question to be answered on a statute-by-statute/case-by-case basis."Salinas, 523 S.W.3d at 107. "And the answer to that question is determined by what the governing statute says about the intended use of the funds, not whether funds are actually used for a criminal justice purpose." Id.

Again, Appellant was assessed a $40 "CRIMINAL CLERK[']S FEE," a $4.00 "JUROR REIBURSEMENT FEE," and a $2.00 "CRIMINAL INDIGENT DEFENSE FUND" fee, which he contends are unconstitutional because the fees are not directed by statute to a legitimate criminal purpose; rather, the fees go into a general fund without limitation or restriction. We hold that these challenged fees are not facially unconstitutional. See Johnson v. State, 573 S.W.3d 328, 336-40 (Tex. App.—Houston [14th Dist.] 2019, pet. filed).

Former Article 102.005 of the Texas Code of Criminal Procedure authorized the district clerk's fee. Article 102.005(a) stated that "[a] defendant convicted of an offense in a county court, a county court at law, or a district court shall pay for the services of the clerk of the court a fee of $40." Former TEX. CODE CRIM. PROC. ANN. art. 102.005(a). The basis of the fee, according to Article 102.005(c), "is for all clerical duties performed by the clerk." Id. art. 102.005(c).

Three other Texas Courts of Appeals have addressed facial constitutional challenges to the district clerk's fee, and all three upheld the fee as constitutional. See Johnson, 573 S.W.3d at 336-37; Moliere v. State, 574 S.W.3d 21, 31-32 (Tex. App.—Houston [14th Dist.] 2018, pet. filed); Thornton v. State, No. 05-17-00220-CR, 2018 WL 2773390, at *3 (Tex. App.—Dallas June 11, 2018, no pet.) (mem. op., not designated for publication); Davis v. State, 519 S.W.3d 251, 257 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd). We agree with those holdings, and we conclude that the statute that authorizes the district's clerk's fee is not facially unconstitutional. Rather, as the court held in Peraza, the district clerk's fee is a recoupment of costs expended in the trial of the case. Peraza, 467 S.W.3d at 517. Further, the fee serves a legitimate criminal justice purpose. Thornton, 2018 WL2773390, at *3 (fee is "intended to be spent reimbursing the clerk for services listed in the statute attendant to a criminal court proceeding" (citing Salinas, 523 S.W.3d at 109 n.26, 110 n.36)).

The jury service fee was authorized by former Article 102.0045 of the Texas Code of Criminal Procedure. Former Article 102.0045(a) provided: "A person convicted of any offense, other than an offense relating to a pedestrian or the parking of a motor vehicle, shall pay as a court cost, in addition to all other costs, a fee of $4 to be used to reimburse counties for the cost of juror services . . . ." Former CRIM. PROC. art. 102.0045(a). The statute provided that the fee is to be deposited into the "jury service fund"; Section 102.0045(b) provided that the treasurer is to remit the collected fees to the comptroller, who then "shall deposit the fees in the jury service fund." Id. art. 102.0045...