Affirmed as modified; Opinion Filed January 22, 2020




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-19-00136-CR

                               GEORGE OVALLE, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the 265th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F1858862-R

                                           OPINION
                        Before Justices Pedersen, III, Reichek, and Carlyle
                                    Opinion by Justice Reichek
       George Ovalle appeals from the trial court’s judgment convicting him of aggravated assault

with a deadly weapon. Bringing two issues, appellant contends the judgment should be reformed

to reflect there was no plea bargain agreement and a portion of the time payment fee assessed

against him as court costs should be deleted as unconstitutional. With respect to the first issue, we

agree, and the State does not dispute, that the judgment should be reformed to show appellant did

not plead guilty with the benefit of a plea bargain agreement. As to the second issue, we conclude

the portion of the time payment fee challenged by appellant is facially unconstitutional.

Accordingly, we modify the trial court’s judgment to reflect that appellant entered an open plea of

guilty and to delete a portion of the court costs. We affirm the judgment as modified.
       Appellant was indicted for aggravated assault with a deadly weapon after he stabbed his

neighbor multiple times with a knife. Appellant signed a judicial confession, waived his right to

a jury trial, and entered an open plea of guilty to the offense. At the beginning of the plea hearing,

the trial judge confirmed with appellant that he was pleading guilty without a plea bargain

agreement and admonished him that punishment could be set anywhere within the range provided

by law. Appellant acknowledged he understood. After further admonishing appellant, and hearing

testimony from both appellant and the victim’s aunt, the trial court accepted appellant’s plea, made

an affirmative deadly weapon finding, and sentenced appellant to eight years in prison.

       The judgment signed by the trial court indicates that appellant was sentenced pursuant to a

plea bargain agreement. In the space provided for “Terms of Plea Bargain,” the judgment states

“8 YEARS TDCJ.” In his first issue, appellant contends the judgment should be corrected to show

he pleaded guilty without a plea bargain agreement. The State agrees. We have the power to

modify a judgment to speak the truth 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); Asberry v. State,

813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d) (en banc).

       In this case, although appellant signed a document entitled “Plea Agreement,” the

substance of that document shows appellant intended to enter an open plea of guilty. This was

confirmed by the trial court at the beginning of the plea hearing. Because the record affirmatively

shows that appellant did not have a plea bargain agreement when he pleaded guilty, we reform the

judgment to delete the phrase “8 YEARS TDCJ” in the space provided for “Terms of Plea Bargain”

and modify it to state “OPEN PLEA.”

       In his second issue, appellant contends that part of a fee assessed against him as court costs

should be deleted as facially unconstitutional. A facial challenge is an attack on the statute itself

as opposed to a particular application. Salinas v. State, 523 S.W.3d 103, 106 (Tex. Crim. App.

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2017). “Except when First Amendment freedoms are involved, a facial challenge to a statute is a

challenge to the statute in all of its applications.” Id. Whether a statute is facially unconstitutional

is a question of law that we review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App.

2013).

         Although the trial court pronounced appellant’s sentence at the conclusion of the plea

hearing, it did not impose court costs at that time. The written final judgment assessed only a total

amount of court costs. An itemized list of costs was not generated until several days later. One

month after the first itemized bill was generated, a second itemized bill of costs was created

showing a $25 fee labeled “IP PLN . . . BATCH 31 DAY FEES.” It is undisputed that this $25

fee is for an “installment plan” or time payment fee pursuant to section 133.103 of the Texas Local

Government Code. See Velasquez v. State, No. 05-17-01214-CR, 2018 WL 6065257, at *4 (Tex.

App.—Dallas Nov. 20, 2018, no pet.) (mem. op., not designated for publication).

         Section 133.103 imposes a $25 fee if a person convicted of a felony or misdemeanor pays

any part of a fine, court costs, or restitution on or after the thirty-first day after the date on which

the judgment assessing the fine, costs, or restitution is entered. TEX. LOC. GOV’T CODE ANN.

§ 133.103. The statute directs the treasurer to allocate the $25 collected fee in three ways:

subsection (b) directs that 50% is to be sent to the comptroller for deposit in the general revenue

fund; subsection (c) states that 10% is to be deposited in the general fund of the county or

municipality “for the purpose of improving the efficiency of the administration of justice in the

county or municipality”; and subsection (d) states the remaining fees (40%) are to be deposited in

the general revenue account of the county or municipality. See id. § (b)–(d).

         Appellant does not challenge the 10% of the time payment fee that is directed to the general

fund of the county or municipality “for the purpose of improving the efficiency of the

administration of justice in the county or municipality.” Rather, he challenges the remaining 90%

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of the fee directed to general funds by subsections (b) and (d) arguing that this portion of the fee

is not being collected for a legitimate criminal purpose and violates the separation of powers

provision of the Texas Constitution.1

         The State first responds that we should not reach appellant’s constitutional challenge

because he waived the issue by failing to object in the trial court below. We disagree. The court

cost being challenged was not imposed in open court or itemized in the initial judgment. An

itemized bill of costs did not show the fee until one month after the judgment was signed.

Accordingly, appellant did not have the opportunity to challenge the fee in the trial court and may

raise the issue for the first time on appeal. See Johnson v. State, 423 S.W.3d 385, 390–91 (Tex.

Crim. App. 2014); Dulin v. State, 583 S.W.3d 351, 352 n.1 (Tex. App.—Austin 2019, pet. filed).

         With respect to the constitutionality of subsections (b) and (d) of section 133.103, this same

issue has been addressed by several of our sister courts. In Johnson v. State, the 14th district court

of appeals applied the distinction set out by the Texas Supreme Court in Salinas v. State between

a permissible court cost, which is “used for a legitimate criminal justice purpose,” and an

unconstitutional tax, which is not. Johnson v. State, 573 S.W.3d 328, 340 (Tex. App.—Houston

[14th Dist.] 2019, pet. filed). As stated in Salinas, if a statute turns the courts into tax gatherers,

then the statute impermissibly delegates to the courts a power more properly attached to the

executive branch. See Salinas, 523 S.W.3d at 107. The Johnson court concluded that, because

the portions of the time payment fee authorized by subsections (b) and (d) were deposited in




1
  The Texas Legislature passed legislation, effective January 1, 2020, that transfers Texas Local Government Code
section 133.103 to Texas Code of Criminal Procedure article 102.030 and revises the statute to provide that all of 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, 2019 Tex. Sess. Law Serv. Ch. 1352. 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.

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general revenue and were not sufficiently allocated to administration of our criminal justice

system, those subsections were facially unconstitutional as violating the separation-of-powers

provision of the Texas Constitution. Johnson, 573 S.W.3d at 340. Consequently, the court reduced

the appellant’s time payment fee from $25 to $2.50. Id.

       Several of our sister courts have since followed Johnson’s reasoning and also concluded

subsections (b) and (d) are unconstitutional. See Simmons v. State, No. 10-18-00269-CR, 2019

WL 6464999, at *7 (Tex. App.—Waco Nov. 27, 2019, pet. filed); Townsend v. State, No. 13-18-

00049-CR, 2019 WL 6205470, at *8 (Tex. App.—Corpus Christi–Edinburg Nov. 21, 2019,

pet.filed) (mem. op. not designated for publication); Dulin, 583 S.W.3d at 353; Kremplewski v.

State, No. 01-19-00033-CR, 2019 WL 3720627, at *2 (Tex. App.—Houston [1st Dist.] Aug. 8,

2019, pet. filed); King v. State, No. 11-17-00179-CR, 2019 WL 3023513, at *5–6 (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. We therefore sustain appellant’s second issue.

       Based on the foregoing, we reform the trial court’s judgment to delete the phrase “8

YEARS TDCJ” in the space provided for “Terms of Plea Bargain,” and modify it to state “OPEN

PLEA.” We further modify the judgment to reduce the total amount of court costs by $22.50 to

reflect the reduction in the time payment fee. As modified, we affirm the trial court’s judgment.




                                                  /Amanda L. Reichek/
                                                  AMANDA L. REICHEK
                                                  JUSTICE
Publish
TEX. R. APP. P. 47.2(b)
190136F.P05



                                               –5–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 GEORGE OVALLE, Appellant                          On Appeal from the 265th Judicial District
                                                   Court, Dallas County, Texas
 No. 05-19-00136-CR         V.                     Trial Court Cause No. F-1858862-R.
                                                   Opinion delivered by Justice Reichek.
 THE STATE OF TEXAS, Appellee                      Justices Pedersen, III and Carlyle
                                                   participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows: The phrase “8 YEARS TDJC” in the space provided for “Terms of Plea Bargain” is
DELETED and REPLACED with the words “OPEN PLEA.” The judgment is further
MODIFIED to reduce the total amount of court costs by $22.50 to reflect the reduction in the
time payment fee from $25 to $2.50.

As REFORMED, the judgment is AFFIRMED.


Judgment entered this 22nd day of January, 2020.




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