                                                                                 PD-1671-15
                                                               COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                               Transmitted 6/10/2016 8:39:36 AM
                                                                Accepted 6/10/2016 11:30:27 AM
                                                                                 ABEL ACOSTA
                                                                                         CLERK
                             NO. PD 1671-15
                  IN THE COURT OF CRIMINAL APPEALS
                       OF THE STATE OF TEXAS


                      CARLTON CHARLES PENRIGHT,
                               Appellant

                                    v.

                          THE STATE OF TEXAS
                                Appellee


                  On Petition for Discretionary Review
         from the First Court of Appeals in No 01-12-00647-CR,
Cause Number 1247950 from the 174th District Court of Harris County, Texas


                         BRIEF FOR APPELLANT



  Oral Argument Not Requested                 ALEXANDER BUNIN
                                              Chief Public Defender
                                              Harris County, Texas
                                              JANI MASELLI WOOD
                                              Assistant Public Defender
                                              Harris County, Texas
                                              TBN. 00791195
                                              1201 Franklin Street, 13th Floor
                                              Houston, Texas 77002
                                              Phone: (713) 368-0016
                                              Fax: (713) 368-9278

         June 10, 2016
                                              Counsel for Appellant
                                              Carlton Charles Penright
                       IDENTITY OF PARTIES AND COUNSEL


Appellant:                         Carlton Charles Penright
                                   TDCJ-ID# 01811722
                                   Gurney Unit
                                   1385 FM 3328
                                   Tennessee Colony, TX 75803

Trial Prosecutor:                  Mr. Ed McClees
Appellate Prosecutor               Ms. Jessica Akins
                                   Assistant District Attorneys
                                   Harris County, Texas
                                   1201 Franklin, 6th Floor
                                   Houston, Texas 77002

Defense Counsel at Trial:          Steven Greenlee
                                   4303 Whippoorwill Circle
                                   Missouri City, Texas 77459-2977

Presiding Judge:                   Hon. Ruben Guerrero
                                   174th District Court
                                   Harris County, Texas
                                   1201 Franklin, 19th floor
                                   Houston, Texas 77002

Defense Counsel on Appeal:         Jani Maselli Wood
                                   Assistant Public Defender
                                   Harris County, Texas
                                   1201 Franklin, 13th Floor
                                   Houston, Texas 77002




                                     -2-
                                             TABLE OF CONTENTS

Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Statement of the Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Issue Granted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

          Ground One: The Court of Appeals’ decision that the consolidated
          court cost was constitutional failed to explain how the comprehensive
          rehabilitation fee is a legitimate criminal justice purpose
Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Summary of the Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
          The Comprehensive Rehabilitation Fee statute is invalid on its face.. . . . . . . . 11

          There is no authority or reasoning for why the Comprehensive
          Rehabilitation Fee is a legitimate court cost.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

          Unlike the DNA record fee, the Comprehensive Rehabilitation Fee does
          not involve legitimate criminal justice purposes.. . . . . . . . . . . . . . . . . . . . . . . . . 13

          Class C tickets to Capital Murder convictions pay this fee.. . . . . . . . . . . . . . . . 14

          Each individual cost under the consolidated court cost statute must be
          analyzed.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

          The former family protection fee - partly constitutional and partly not.. . . . . . 16

          A statute that is unconstitutional in part is an unconstitutional statute.. . . . . . 17

                                                                -3-
          Changes in Texas with court costs and poor people. . . . . . . . . . . . . . . . . . . . . . 19

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Certificate of Compliance.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22




                                                                  -4-
                                    INDEX OF AUTHORITIES

Cases:

Penright v. State, 01-12-00647-CR, 2015 WL 5770006
       (Tex. App.—Houston [1st Dist.] Sept. 29, 2015, no. pet. h.). . . . . . . . . . . . . . . . 7

Peraza v. State, 467 S.W.3d 508 (Tex. Crim. App. 2015).. . . . . . . . . . . . . . . . . . . . passim

Salas v. State, 365 S.W.2d 174 (Tex. Crim. App. 1963).. . . . . . . . . . . . . . . . . . . . . . . . 16

Salinas v. State, 426 S.W.3d 318, 333 (Tex. App.—Houston [14th Dist.] 2014),
       rev’d, 464 S.W.3d 363 (Tex. Crim. App. 2015).. . . . . . . . . . . . . . . . . . . . . . 15, 16

Tussey v. State, 494 S.W.2d 866, 870 (Tex. Crim. App. 1973). . . . . . . . . . . . . . . . . . . . . 15




                                                  -5-
Statutes, Rules, Opinions, and Miscellaneous

TEX. GOV'T CODE ANN. § 51.961 (West 2013). . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 18
TEX. GOV'T CODE ANN. § 311.032© (West 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
TEX. GOV'T CODE ANN. § 501.014 (e)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
TEX. HUM. RES. CODE ANN.§ 111.052.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
TEX. HUM. RES. CODE ANN. § 111.060 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
TEX. HUM. RES. CODE ANN. § 115.001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
TEX. LOC. GOV'T CODE ANN. § 133.102. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 14, 16
TEX. PENAL CODE ANN. § 22.011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
TEX. ATT'Y GEN. OP. NO. GA-0387 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Testimony of Vikrant P. Reddy, Senior Research Fellow,
      Charles Koch Institute.
      Before the United States Commission on Civil Rights Briefing: Municipal
      Policing and Courts: A Search for Justice or a Quest for Revenue. . . . . . . . . . 10

George Mason,
     Fairfax County Freeholders’ Address and Instructions to Their General
     Assembly Delegates (May 30, 1783), in Jeff Broadwater, GEORGE
     MASON: FORGOTTEN FOUNDER 153 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Kendall Taggart & Alex Campbell,
     Their Crime: Being Poor. Their Sentence: Jail.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16




                                                       -6-
                              STATEMENT OF THE CASE

      This is an appeal from the felony offense of sexual assault. (C.R. at 170). See
TEX. PENAL CODE ANN. § 22.011. After a trial by jury, Mr. Penright was convicted

and the jury assessed punishment at 15 years confinement in the Texas Department of

Criminal Justice - Institutional Division. (C.R. at 170). The judgment was dated June
28, 2012. (C.R. at 170). Timely notice of appeal was filed. (C.R. at 177).

      A motion in arrest of judgment and a motion for new trial were filed on July
25, 2012. (II C.R. at 201, 273). The motions were set for a hearing to be held on
August 31, 2012. (II C.R. at 356). Four subpoenas for witnesses were issued for that
date. (II C.R. at 311-28). The court notified counsel they were “closed” that day and
reset the hearing to September 7, 2012. (II C.R. at 371). The same witnesses were
again placed under subpoena. (II C.R. at 331-49). The court had a capital jury to pick

on September 7, 2012 and chose to reset the hearing to September 21, 2012, outside

of the 75th day. (II C.R. at 371). The 75th day after the judgment was September 11,
2012, so no hearing was able to be held.
                     STATEMENT OF THE PROCEDURAL HISTORY
      On October 21, 2013, the Court of Appeals abated this cause and remanded it

for a hearing on the motion for new trial. The hearing was held and the case
reinstated on March 7, 2014. In an unpublished opinion, the First Court of Appeals

affirmed Mr. Penright’s conviction.        Penright v. State, 01-12-00647-CR, 2015 WL

5770006 (Tex. App.—Houston [1st Dist.] Sept. 29, 2015, no pet.). A timely motion

for reconsideration en banc was filed on October 19, 2015. The State was ordered to


                                            -7-
respond and did so on November 10, 2015. The motion was denied on December 8,

2015, with Justice Jennings dissenting. The petition for discretionary review was filed

on February 8, 2016. After an extension of time, this brief is timely if filed on or
before June 10, 2016.


                            APPELLANT’S GRANTED ISSUE:

      Ground One: The Court of Appeals’ decision that the consolidated
      court cost was constitutional failed to explain how the comprehensive
      rehabilitation fee is a legitimate criminal justice purpose.

                                 STATEMENT OF FACTS

      Mr. Penright was ordered to pay court costs originally totaling $534 including
the $133 consolidated court cost. (C.R. at 170). Only after the cost bill was requested
and the JIMS pages filed, was an error in the amount of court costs discovered and
surreptitiously corrected. (II C.R. at 221, 257). The later version deleted one of the
Sheriff’s fees and had a new page one subtotal of $60.00.
      Both costs bills charged Mr. Penright for the $133 consolidated court cost. (II
C.R. at 222, 258).
      Mr. Penright filed a motion in arrest of judgment and a motion for new trial
challenging the constitutionality of the consolidated court cost.




                                           -8-
                            SUMMARY OF THE ARGUMENT

      The Comprehensive Rehabilitation fee is an unconstitutional tax. It has no

legitimate criminal justice purpose and should be struck. A broader question becomes
what to do with the Consolidated Court Cost.               This Court can strike the

unconstitutional portion - which undermines the entirety of the consolidated court
cost statute. This Court could try and excise the unconstitutional portion and leave

the other constitutional portions in place - but this option is most likely unworkable.




                                           -9-
                                        ARGUMENT

          Ground One: The Court of Appeals’ decision that the consolidated
          court cost was constitutional failed to explain how the comprehensive
          rehabilitation fee is a legitimate criminal justice purpose.

          “The times they are a-changin’.”1

                       – Bob Dylan

          ...a conflict of interest exists among the police officers, judges,
          community supervision officers, etc. who are responsible for executing
          the functions of the criminal justice system. As the founding father
          George Mason observed, “When the same man, or set of men, holds
          both the sword and the purse, there is an end of liberty.”2

          ... the reliance on criminal justice fees and fines to fund a government’s
          basic services is counter-productive. Such practices are unaccountable
          and opaque, and they introduce dreadful incentives for abuse.3
          Raising revenue ... has never been considered a legitimate purpose of the
          criminal justice system, and yet, over the last few decades, criminal
          justice fees and fines have in fact become a major mechanism for raising
          state and local revenue.4
                       – Charles Koch Institute Senior Fellow Vikrant P. Reddy


1
          https://www.youtube.com/watch?v=e7qQ6_RV4VQ
2

       Testimony of Vikrant P. Reddy, Senior Research Fellow, Charles Koch Institute.
Before the United States Commission on Civil Rights for the March 18, 2016 Briefing:
Municipal Policing and Courts: A Search for Justice or a Quest for Revenue, citing George
Mason, Fairfax County Freeholders’ Address and Instructions to Their General Assembly
Delegates (May 30, 1783), in Jeff Broadwater, GEORGE MASON: FORGOTTEN FOUNDER
153 (2006).
https://securisync.intermedia.net/Web/#/s?public_share=kYWfwhhUK2KP_ip3l6z
Aab&id=LzIwMTYgUGFzdCBCcmllZmluZ3MvMy0xOC0xNiBNdW5jaXBhbCBQ
b2xpY2luZyBhbmQgQ291cnRzL1BhbmVsIDEvVmlrcmFudCBSZWRkeQ%3D%3D
3
    Id.
4
    Id.
                                              -10-
The Comprehensive Rehabilitation Fee statute is invalid on its face.

          When challenging a statute as facially unconstitutional, this Court explained in

Peraza v. State,
          “A facial challenge is an attack on a statute itself as opposed to a
          particular application.” City of Los Angeles v. Patel,–––U.S. ––––, ––––,
          135 S.Ct. 2443, 192 L.Ed.2d 435 (2015). In order to successfully mount a
          facial challenge to Article 102.020, Peraza must establish that no set of
          circumstances exists under which that statute would be valid.

Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1188

(2016). This Court directed that the evaluation of a statute should review whether a
defendant “has met his burden to show that there are no possible constitutional
applications of the statute.” Peraza, 467 S.W.3d at 515. In deciding the DNA record

fee was constitutional, this Court explained:

          The statutory scheme allocating these resources to the state highway
          fund 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 separation of powers clause.

Peraza, 467 S.W.3d at 521. Conversely, a court cost that is not expended for a

legitimate criminal justice purpose is a tax and does violate the separation of powers
clause.

There is no authority or reasoning for why the Comprehensive Rehabilitation
Fee is a legitimate court cost.

          Court costs must be “expended for legitimate criminal justice purposes.”
Peraza, 467 S.W.3d at 517. “A criminal justice purpose is one that relates to the
administration of our criminal justice system.” Id.
          The Comprehensive Rehabilitation fee is 9.8218 percent of the consolidated
court cost.        TEX. LOC. GOV'T CODE ANN. § 133.102 (e)(6).(West).                 The

                                            -11-
Comprehensive Rehabilitation Fee funds are spent at the direction of the Department
of Assistive and Rehabilitative Services - an executive branch agency. See TEX. HUM.
RES. CODE ANN. § 115.001. A cursory review of the statute for this agency
establishes:
       (a) The comprehensive rehabilitation fund is created in the state
       treasury. Money in the fund is derived from court costs collected
       under Subchapter D, Chapter 102, Code of Criminal Procedure.
       Money in the fund may be appropriated only to the commission for
       the purposes provided by Section 111.052.
TEX. HUM. RES. CODE ANN. § 111.060. A review of the “purposes” of this money
under current Texas law is:
       (a) The commission shall, to the extent of resources available and
       priorities established by the board, provide rehabilitation services
       directly or through public or private resources to individuals
       determined by the commission to be eligible for the services under a
       vocational rehabilitation program or other program established to
       provide rehabilitative services.
       b) In carrying out the purposes of this chapter, the commission may:
               (1) cooperate with other departments, agencies, political
               subdivisions, and institutions, both public and private,
               in providing the services authorized by this chapter to
               eligible individuals, in studying the problems involved,
               and in planning, establishing, developing, and providing
               necessary or desirable programs, facilities, and services,
               including those jointly administered with state agencies;
               (2) enter into reciprocal agreements with other states;
               (3) establish or construct rehabilitation facilities and
               workshops, contract with or provide grants to agencies,
               organizations, or individuals as necessary to implement
               this chapter, make contracts or other arrangements with
               public and other nonprofit agencies, organizations, or
               institutions for the establishment of workshops and
               rehabilitation facilities, and operate facilities for carrying
               out the purposes of this chapter;
               (4) conduct research and compile statistics relating to
               the provision of services to or the need for services by
               disabled individuals;

                                             -12-
                 (5) provide for the establishment, supervision,
                 management, and control of small business enterprises
                 to be operated by individuals with significant disabilities
                 where their operation will be improved through the
                 management and supervision of the commission;
                 (6) contract with schools, hospitals, private industrial
                 firms, and other agencies and with doctors, nurses,
                 technicians, and other persons for training, physical
                 restoration, transportation, and other rehabilitation
                 services; and
                 (7) assess the statewide need for services necessary to
                 prepare students with disabilities for a successful
                 transition to employment, establish collaborative
                 relationships with each school district with education
                 service centers to the maximum extent possible within
                 available resources, and develop strategies to assist
                 vocational rehabilitation counselors in identifying and
                 reaching students in need of transition planning.
TEX.HUM.RES. CODE ANN.§ 111.052.
Unlike the DNA record fee, the Comprehensive Rehabilitation Fee does not
involve legitimate criminal justice purposes.
       Unlike the DNA record fee, which this Court held to be constitutional in
Peraza, this fee destination under the consolidated court cost (CCC) has no
relationship at all to courts or criminal justice. The program’s goal is to “provide

rehabilitation     services directly   or   through     public   or   private   resources to

individuals determined by the commission to be eligible for the services under a
vocational   rehabilitation      program or     other    program established     to provide

rehabilitative services.” TEX.HUM.RES. CODE ANN.§ 111.052. While laudable and

certainly something government should care for - under the new standard created by
this Court, it is wholly unrelated to criminal justice. Every single time the CCC is

assessed, 9.8218% of the fee goes to Comprehensive Rehabilitation - a purpose

unrelated to criminal justice. Therefore, directing a court cost to comprehensive
                                              -13-
rehabilitation is facially unconstitutional because every single CCC goes partially for

this purpose.

Class C tickets to Capital Murder convictions pay this fee.

      This Comprehensive Rehabilitation Fee is paid by not just people who are

convicted of first degree felonies. It is paid by people who get a ticket for jaywalking:

      (a) A person convicted of an offense shall pay as a court cost, in addition
      to all other costs:
                (1) $133 on conviction of a felony;
                (2) $83 on conviction of a Class A or Class B misdemeanor; or
                (3) $40 on conviction of a nonjailable misdemeanor offense, including a
                criminal violation of a municipal ordinance, other than a conviction of
                an offense relating to a pedestrian or the parking of a motor vehicle.
TEX. LOC. GOV'T CODE ANN. § 133.102 (West). This is exactly the type of fee that is

wholly unrelated to the charge or the court and can result in people being jailed for
failure to pay. While there are laws that prohibit the incarceration of the indigent - it
is routinely done:

      But in many courts across the Lone Star State, it is as if the law and the
      Supreme Court rulings never happened. A BuzzFeed News investigation
      into Texas judicial practice found that with no public defenders present,
      traffic court judges routinely flout the law, locking up people for days,
      weeks, and sometimes even months because they did not pay fines they
      could not afford. The result is a modern-day version of debtors prison,
      an institution that was common two centuries ago but has been outlawed
      since the early ’70s.




                                            -14-
Kendall Taggart & Alex Campbell, Their Crime: Being Poor. Their Sentence: Jail.5 As a

policy matter, this Court decided in Peraza that a defendant must shoulder the burden

of costs that are legitimately related to criminal justice.6 This cost is not related. This
cost is a cog in the criminalization of poverty and the jailing of the poor. It is not a

cost that should be borne as a court cost.

Each individual cost under the consolidated court cost statute must be
analyzed.
       As to the constitutionality of the entire statute:
       It has been consistently held that where a portion of a statute has
       been declared unconstitutional, and there is an absence of a saving or
       severability clause, the remainder of the statute must be sustained if it
       is complete in itself and capable of being executed in accordance with
       the legislative intent wholly independent of that which has been
       rejected.
Tussey v. State, 494 S.W.2d 866, 870 (Tex. Crim. App. 1973). There is no savings clause
or severability clause in the consolidated court cost statute. Additionally, were one
section to be found unconstitutional, it would undermine the entirety of the statute.
As Justice Jamison explained in her dissent in Salinas:
       Under the circumstances presented in this case, the statute requires
       $133 be gathered and distributed according to specified percentages.
       Period. Because the statute cannot be salvaged by severing
       constitutionally-funded programs from those not properly funded,
       the statute is facially unconstitutional even if certain of the listed
       programs could be constitutionally funded through court costs
       assessed against criminal defendants.


5
     https://www.buzzfeed.com/kendalltaggart/in-texas-its-a-crime-to-be-poor?ut
m_term=.rpd00QoZr#.kpdWWJ9lv (last visited site 6/4/2016).
6

       All inmates pay court costs from their inmate trust fund. TEX. GOV'T CODE ANN.
§ 501.014 (e)(4) (West). Any money sent to indigent inmates is subject to garnishment.
                                             -15-
Salinas v. State, 426 S.W.3d 318, 333 (Tex. App.—Houston [14th Dist.] 2014), rev’d,
464 S.W.3d 363 (Tex. Crim. App. 2015)(Jamison, J., dissenting). The severability
issue can really only be resolved in one way. The statute should be declared entirely
unconstitutional as Justice Jamison explained in her dissent.       That determination
would make sense because the statute reads that:
      A person convicted of an offense shall pay as a court cost, in addition to
      all other costs:(1) $133 on conviction of a felony;

TEX. LOC. GOV'T CODE ANN. § 133.102 (Vernon).
      If this Court were to determine certain portions of the statute unconstitutional,

it would not be the intent of the legislature that the constitutional portions
reapportion the $133 court cost.

      An alternative way to handle the problem might be that the statute’s percentage
could be reapportioned. It could be calculated to fit the percentage dictated by the

statute. However, this would make (b)(1)’s $133 stated amount inaccurate. The
constitutional portions of the statute funding valid court costs could be excised if this
Court concluded they are wholly independent to the entirety of the statue. See Salas
v. State, 365 S.W.2d 174, 175 (Tex. Crim. App. 1963)(explaining that “if the
unconstitutional or void portion of any statute be stricken out and that which

remains is complete in itself and capable of being executed in accordance with the

apparent legislative intent, wholly independent of that which is rejected, the statute

must be sustained”). However, this possibility is unworkable.

The former family protection fee - partly constitutional and partly not.
      Ten years ago, the Attorney General considered the constitutionality of

Section 51.961 of the Government Code. See TEX. ATT’Y GEN. OP. NO. GA-0387
                                          -16-
(2005). This statute authorized county commissioners courts to adopt a “family

protection fee” in an amount not to exceed $30. See Act of June 2, 2003, 78th Leg., ch.

198, 2003 Tex. Gen. Laws 711 (amended 2005 and 2007) (current version at TEX.
GOV'T CODE ANN. § 51.961 (West 2013)). The fee was to be collected upon the filing

of a suit for the dissolution of marriage. Id. Revenue from the fee was to be directed
to two different destinations. Id. Subsection (d) commanded that one-half of the fee

be deposited in the county’s family protection account. Id. Subsection (g) mandated

that the other half of the fee go to the State's child abuse and neglect prevention trust
fund account. Id.
      The AG opined that Subsection (g)’s allocation of revenue to the State's child

abuse and neglect prevention trust fund account was unconstitutional. TEX. ATT'Y

GEN. OP. NO. GA-0387 (2005) at 5. According to the AG, directing revenue to
the trust fund violated the open courts provision of the Texas Constitution. Id.
But the AG reiterated a previous opinion that Subsection (d)’s allocation of revenue
to the county's family protection account was constitutional. Id. at 6-7. The salient

message here is not the reasoning for the AG’s opinion that one fee destination was

constitutional while the other fee destination was not. Rather, the reason for
citing this AG opinion is to show that certain statutes can have both constitutional

and unconstitutional aspects.

A statute that is unconstitutional in part is an unconstitutional statute.
      A statute can have both constitutional and unconstitutional aspects - every time

the statute is applied. When is a fee statute applied? Every time the fee is assessed.


                                          -17-
       When     a   statute     has unconstitutional       aspects, the statute    itself    is

unconstitutional.    The      statute   cannot       continue to   exist   unchanged. The

unconstitutional portion of the statute must be excised from the rest of the statute. In
some circumstances, the remaining portion of the statute can continue in effect. In

other situations, the excision of the invalid portion of the statute makes this
impossible. See TEX. GOV'T CODE ANN. § 311.032(C) (West                    2005) (“[I]f     any

provision of the statute or its application to any person is held invalid, the

invalidity does not affect other provisions or applications of the statute that can be
given effect without the invalid provision or application, and to this end the
provisions of the statute are severable.”).

       In the case of Section 51.961, the statute could not continue to stand - even

with the offending provision severed out. In order to keep the constitutional
portion of the statute in effect, the Legislature had to amend the statute. The
Legislature did so in the very next legislative session. See Act of May 22, 2007, 80th
Leg. R.S., ch. 637, 2007 Tex. Gen. Laws 1212, 1215. The amendment reduced the fee

from $30 to $15.      The amendment directed the $15 fee to the county’s family

protection account which the AG had found to be constitutional. Additionally, the
amendment repealed Subsection (g) which had directed part of the prior $30 fee to

the State’s child abuse and neglect prevention trust fund.

       As noted in the foregoing paragraph, when a portion of a statute is
unconstitutional, the statute itself is unconstitutional.




                                              -18-
Changes in Texas with court costs and poor people.

      The Judicial Council of Texas considered changes to the Collection

Improvement Program this month, with the Administrative Director explaining:
       The primary goal of the proposed amendments is to provide procedures
      that will help defendant’s [sic] comply with court ordered costs, fines and
      fees without imposing undue hardship on defendants and defendant’s
      dependents. The amendments also clarify that the CIP is not intended to
      encourage the incarceration of defendants who are unable to pay.7

      The Judicial Council also received a letter from a “coalition of organizations”

working together regarding court costs:
      Finally, these amendments will improve public confidence in the
      judiciary. Local courts around the country are the subject of an ongoing
      national conversation concerning administration of justice for
      defendants who are too poor to pay fines and fees. By clarifying that
      courts should not direct their most intensive collective efforts at people
      who struggle to support themselves and their families, these
      amendments promote the public perception that Texas courts do not
      view themselves as revenue centers, but rather as institutions striving
      toward the impartial administration of justice.8
      In Chief Justice Hecht’s 2015 State of the Judiciary, he concluded
      All people yearn for justice. The prophet Amos cried, “Let justice roll
      down like waters, and righteousness like an ever-flowing stream.” The
      Texas Judiciary is committed to this sacred cause.

http://www.txcourts.gov/media/857636/state-of-the-judiciary-2015.pdf
      The CCC is unconstitutional because of the percentage of the court cost

directed to comprehensive rehabilitation. It is a tax on the people of this state. It
7
       http://www.txcourts.gov/media/1380461/Memo-re-proposed-CIP-amendme
nts-5-27-16.pdf (last visited Junr 9, 2016).
8

http://www.txcourts.gov/media/1382785/Comment-on-CIP-Changes.pdf
Letter was from representatives of the Texas Fair Defense Project, Texas Appleseed,
Civil Rights Clinic, University Texas School of Law, and the ACLU of Texas.
                                          -19-
results in indigent people being unfairly incarcerated. This Court should find the cost

unconstitutional.

                                       PRAYER
      Mr. Penright prays this Court reverse the Court of Appeals and find the

Comprehensive Rehabilitation Fee unconstitutional.


                                        Respectfully submitted,
                                        ALEXANDER BUNIN
                                        Chief Public Defender
                                        Harris County Texas

                                        /s/ Jani J. Maselli Wood
                                        ______________________
                                        JANI J. MASELLI WOOD
                                        Assistant Public Defender
                                        Harris County Texas
                                        1201 Franklin, 13th Floor
                                        Houston Texas 77002
                                        Jani.Maselli@pdo.hctx.net
                                        (713) 368-0016
                                        (713) 368-4322
                                        TBA No. 00791195




                                         -20-
                              CERTIFICATE OF SERVICE

 Pursuant to Tex. R. App. Proc. 9.5, this certifies that on June 10, 2016, a copy of the

foregoing was served electronically to counsel for the state (through texfile.com) at the
following addresses:

      Lisa McMinn
      State Prosecuting Attorney
      P.O. Box 13046,
      Austin, TX 78711,
      information@spa.texas.gov

      Jessica Akins
      Assistant District Attorney
      1201 Franklin Street, 6th Floor
      Houston, TX 77002
      Akins_Jessica@dao.hctx.net

                                                       Jani Maselli Wood
                                                 ______________________________
                                                 JANI J. MASELLI WOOD




                                          -21-
                         CERTIFICATE OF COMPLIANCE

      Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this

petition complies with the type-volume limitations of Tex. R. App. Proc. 9.4(i)(2)(D).
      1.     Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this

petition contains 4,244 words printed in a proportionally spaced typeface.
      2.     This petition is printed in a proportionally spaced, serif typeface using

Garamond 14 point font in text and Garamond 14 point font in footnotes produced

by Corel WordPerfect software.
      3.     Undersigned counsel understands that a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in Tex. R. App.

Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against

the person who signed it.

                                                       Jani Maselli Wood
                                                 ____________________________
                                                 JANI J. MASELLI WOOD




                                          -22-
