                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-17-00147-CR

FRANCISCO MARTINEZ SANCHEZ, JR.,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                         From the 272nd District Court
                              Brazos County, Texas
                        Trial Court No. 16-01118-CRF-272


                             DISSENTING OPINION

      The Constitution has not been changed. Sanchez briefed the issue. The State

concedes the fees are unconstitutional. In holding that the fees are unconstitutional in

Salinas v. State, 523 S.W.3d 103 (Tex. Crim. App. 2017), the Court of Criminal Appeals

addressed the retroactive application of the holding. Id. at 113. The discussion about

retroactive application is dicta because it was not necessary to the disposition of the

proceeding before it. See Tong v. State, 25 S.W.3d 707, 711 (Tex. Crim. App. 2000) (noting

that a conclusion not necessary to the holding of a case is dicta); State v. Brabson, 976
S.W.2d 182, 186 (Tex. Crim. App. 1998) (referring to dicta as "unnecessary to [the Court's]

ultimate disposition of" the case). See also Ford v. State, 334 S.W.3d 230, 235 (Tex. Crim.

App. 2011) (holding “[t]he court of appeals erred to rely on dicta in …” when reversing

a Waco court opinion). Moreover, as written, it seems to have been contemplated as being

applicable to judgments that were otherwise final and whether this was the type error

that could be attacked collaterally, not to those judgments that were subject to direct

appeal.

        Regardless, Sanchez is entitled to relief in this proceeding. The cost are a violation

of the separation of powers, and Sanchez has properly placed that issue before us in this

proceeding. See Salinas v. State, 523 S.W.3d 103, 110 (Tex. Crim. App. 2017).

        Because the Court affirms the assessment of unconstitutional court cost against

Sanchez, I respectfully dissent.



                                           TOM GRAY
                                           Chief Justice

Dissenting opinion issued and filed August 28, 2019




Sanchez v. State                                                                        Page 2
