                                                                                     PD-0419-14
                                                                    COURT OF CRIMINAL APPEALS
                                                                                     AUSTIN, TEXAS
January 14, 2015                                                 Transmitted 1/14/2015 11:22:28 AM
                                                                   Accepted 1/14/2015 11:57:27 AM
                                                                                      ABEL ACOSTA
                                    No. PD-0419-14                                            CLERK

                               IN THE COURT OF
                          CRIMINAL APPEALS OF TEXAS


                           ORLANDO SALINAS, Appellant

                                           v.

                          THE STATE OF TEXAS, Appellee



     Petition for discretionary review from Cause No. 14-12-00378-CR from the Court
                  of Appeals for the Fourteenth District of Texas at Houston


          BRIEF OF AMICUS CURIAE TEXAS FAIR DEFENSE PROJECT
                   IN SUPPORT OF APPELLANT ORLANDO SALINAS



    Emily Gerrick
    Texas Bar No. 24092417
    egerrick@fairdefense.org
    TEXAS FAIR DEFENSE PROJECT
    510 South Congress Avenue, Suite 208
    Austin, Texas 78704
    Tel. 512-879-1189
    Fax 512-637-5224



    Attorney for Amicus Curiae
    Texas Fair Defense Project
                                         TABLE OF CONTENTS

INDEX OF AUTHORITIES ................................................................................... iii

IDENTITY AND INTEREST OF AMICUS CURIAE ............................................ v

SUMMARY OF ARGUMENT ................................................................................. 1

ARGUMENT ............................................................................................................ 2

   I.    Valid Court Costs Recoup the Judicial Resources Expended in the Trial of
         the Defendant’s Case....................................................................................... 2

   II. With Respect to all Twelve Challenged Accounts, Money from the
       Consolidated Court Cost Funds Expenditures Unrelated to the Judicial
       Resources Expended in the Trial of the Defendant’s Case ............................. 3

         A.       Money Formerly Deposited into Account 5011, Abused Children’s
                  Counseling, Now Deposited into Account 1, Unappropriated General
                  Revenue ................................................................................................ 3

         B.       Money Deposited into Account 5012, Crime Stoppers Assistance .... 4

         C.       Money Deposited into Account 5013, Breath Alcohol Testing ........... 5

         D.       Money Deposited into Account 581, Bill Blackwood Law
                  Enforcement Management Institute ..................................................... 6

         E.       Money Deposited into Account 116, Law Enforcement Officers
                  Standards and Education ...................................................................... 8

         F.       Money Deposited into Account 107, Comprehensive Rehabilitation .. 9



                                                            i
         G.       Money Formerly Deposited into Account 99, Operator's and
                  Chauffeur's Licenses, Now Deposited into Account 977, Law
                  Enforcement and Custodial Officer Supplemental Retirement
                  Fund ................................................................................................... 10

         H.       Money Deposited into Account 421, Criminal Justice Planning ....... 12

         I.       Money Deposited into Account 5029, Juvenile Crime and
                  Delinquency ....................................................................................... 14

         J.       Money Deposited into Account 469, Compensation to Victims of
                  Crime .................................................................................................. 16

         K.       Money Deposited into Account 5153, Emergency Radio
                  Infrastructure ...................................................................................... 17

         L.       Money Deposited into Account 5083, Correctional Management
                  Institute and Criminal Justice Center ................................................. 18

   III. By Practice and by Statute, Every Consolidated Court Cost Assessed Funds
        Expenditures that are Unrelated to the Courts or Even to the Criminal Justice
        System in General ......................................................................................... 19

PRAYER ................................................................................................................. 21

CERTIFICATE OF COMPLIANCE ...................................................................... 22

CERTIFICATE OF SERVICE ................................................................................ 22




                                                            ii
                                      INDEX OF AUTHORITIES
Cases

Armstrong v. State, 340 S.W.3d 759 (Tex. Crim. App. 2011) ..................................4

Ex Parte Carson, 159 S.W.2d 126 (Tex. Crim. App. 1942) (on motion for

  rehearing) ...............................................................................................................3

Gipson v. State, 428 S.W.3d 107 (Tex. Crim. App. 2014) ........................................4

Weir v. State, 278 S.W.3d 364 (Tex. Crim. App. 2009)........................................3, 4

Constitution, Statutes, and Rules

TEX. CONST. ART. II, SEC. 1 ................................................................................5

TEX. CRIM. PROC. CODE ANN. ART. 102.016 .............................................................8

Acts 1997, 75th Leg., ch. 1100, § 6(1) ......................................................................6

TEX. CRIM. PROC. CODE ANN. ART. 37.073 ...............................................................7

TEX. EDUC. CODE. ANN. § 96.64(1) ...........................................................................9

TEX. GOV'T CODE ANN. § 414.005 ............................................................................7

TEX. GOV'T CODE ANN. § 772.0071 ........................................................................13

TEX. GOV'T CODE ANN. § 811.001 ..........................................................................14

TEX. HUM. RES. CODE ANN. § 111.052 ...................................................................11

TEX. LOC. GOV'T CODE ANN. § 133.102 ....................................................................3

Other Authorities

Crime Victim Services 2013 Annual Report, Office of the Attorney General .......18



                                                            iii
Gov. Perry Awards $3.8 Million More for Border Security, Press Release (Feb. 2,

  2006) ....................................................................................................................14

Interoperable Communications 2014 Annual Report, Office of the Governor .......19

Lawrence F. Alwin, CPA, A Financial Review of the Law Enforcement Officer

  Standards and ......................................................................................................10

Lawrence F. Alwin, CPA, A Financial Review of the Law Enforcement Officer

  Standards and Education Fund............................................................................10

Laxley W. Rodney, Betty Crafter, H. Elaine Rodney & Robert M. Mupier,

  Variables Contributing to Grade Retention Among African American Adolescent

  Males, The Journal of Educational Research, volume 92, Issue 3, page 185, 1999

  ..............................................................................................................................16

Robert Mupier, H. Elaine Rodney, & Lorraine A. Samuels, Difference in Parenting

  Style Between African American Alcoholic and Nonalcoholic Parents, Journal of

  Contemporary Human Services, Volume 83, number 5, 2002 ............................16

Texas Comptroller Manual of Accounts ......................................................... passim




                                                               iv
             IDENTITY AND INTEREST OF AMICUS CURIAE

      The Texas Fair Defense Project (“TFDP”) is a nonprofit organization based

in Austin, Texas. TFDP works to improve fairness in the criminal justice system

and reduce the burdens of court costs, fines, and fees on low-income Texans.

      This case raises an important question about the constitutionality of the

consolidated court cost. The outcome of this case will affect any person convicted

of any offense in Texas, other than offenses relating to pedestrians or the parking

of motor vehicles. The proper resolution of this case is, therefore, a matter of

substantial interest to TFDP and indigent defendants in Texas.

      No fee was paid for the preparation or submission of this brief. No party or

counsel for a party made a monetary contribution to fund the preparation or

submission of this brief.




                                          v
                       SUMMARY OF THE ARGUMENT

      Under TEX. LOC. GOV'T CODE ANN. § 133.102, the consolidated court cost is

divided between 14 different accounts that are administered by various agencies.

At issue is whether the consolidated court cost, as applied to 12 of those 14

accounts, is an unconstitutional tax that does not properly recoup the costs of

judicial resources expended in the trial of the case.

      The Fourteenth Court of Appeals stated that it would not make “inferences

from the titles” of the accounts and indicated that more information about “the uses

to which fees are put” would be needed to find the consolidated court cost

unconstitutional. Salinas v. State, 426.W.3d 318 (Tex. App. —Houston [14th Dist.]

pet. granted Sep. 17, 2014). TFDP agrees with Appellant that, because Appellant is

bringing a facial challenge against § 133.102, the constitutionality of the statute

should be analyzed by its text alone. However, to help this Court put this issue into

context and reach a conclusion, this brief presents information on how money from

the consolidated court cost is spent once it is deposited into the 12 challenged

accounts.




                                           1
                                       ARGUMENT

I.        Valid Court Costs Recoup the Judicial Resources Expended in the Trial
          of the Defendant’s Case

          In Ex Parte Carson, this Court struck down a $1.00 court cost to fund law

libraries because it was too attenuated from the costs of trying the defendant’s case.

159 S.W.2d 126 (Tex. Crim. App. 1942) (on motion for rehearing). This Court

explained that a court cost that is not truly an “item of cost” of the court is invalid.

Id. The State argues that Carson was wrongly decided and that the test of

constitutionality should be whether the cost is “reasonably related to the

improvement of the criminal justice system.”1 This is inconsistent with several

recent cases in which this Court held that court costs are “nonpunitive

recoupment[s] of the costs of judicial resources expended in connection with the

trial of the case.” Weir v. State, 278 S.W.3d 364, 366 (Tex. Crim. App. 2009)

(citation omitted); Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App.

2011) (quoting Weir); Gipson v. State, 428 S.W.3d 107, 110 (Tex. Crim. App.

2014) (quoting Weir).

          In this sense, court costs are “characteristically different” from fines, which

courts may collect in order to punish the defendant. Gipson, 428 S.W.3d, at 110

(Acala, J., concurring). In Weir, this Court held that because court costs are “purely

compensatory” means of reimbursing judicial resources, courts do not need to
1
    Appellee’s Brief at 14.

                                              2
include court costs in the trial court’s oral pronouncement of the sentence. Weir,

278 S.W.3d, at 366 (citation omitted).

       Because the consolidated court cost is neither punitive nor compensatory, it

cannot be valid as a fine or a court cost. Money from the consolidated court cost

funds general State expenditures and is therefore properly characterized as a tax.

The collection of taxes is an executive function. Thus, courts that collect money

from defendants in order to fund general State expenditures violate the separation

of powers under Article II, Section 1 of the Texas Constitution.

II.    With Respect to all Twelve Challenged Accounts, Money from the
       Consolidated Court Cost Funds Expenditures Unrelated to the Judicial
       Resources Expended in the Trial of the Defendant’s Case

       A. Money Formerly Deposited into Account 5011, Abused Children’s
       Counseling, Now Deposited into Account 1, Unappropriated General
       Revenue

       Previously, 0.0088 percent of the consolidated court cost was deposited into

Account 5011, which was administered by the Texas Education Agency.2 The

Legislature repealed Account 5011 in 19973 and it was subsequently deactivated in

2000.4 Since then, the money has been allocated to the General Revenue Fund.5


2
  Texas Comptroller Manual of Accounts, Revenue object 3704,
https://fmcpa.cpa.state.tx.us/fiscalmoa/rev.jsp?num=3704&id=8840
3
  Acts 1997, 75th Leg., ch. 1100, § 6(1).
4
  Id., Email from Financial Reporting Analyst, Tom Zapata, CPA, Financial Reporting Analyst,
Texas Comptroller of Public Accounts, Oct. 29, 2014, screenshot available at
http://www.texasfairdefenseproject.org/684-2/.


                                              3
There is no designated purpose or administering agency for the money, and once it

is deposited into the General Revenue Fund expenditures cannot be traced.6

       Even if Account 5011 were to fund services for abused children, most

defendants, including Mr. Salinas, have not been convicted of an offense related to

child abuse. To the extent that costs of services for abused children should be

recouped from people convicted of abusing children, a compensatory mechanism

already exists. Under Texas law, defendants convicted of abusing children must

pay a $100 court cost to the county child abuse prevention fund. See TEX. CRIM.

PROC. CODE ANN. ART. 102.0186.

       B. Money Deposited into Account 5012, Crime Stoppers Assistance

       Account 5012, Crime Stoppers Assistance, is administrated by the Criminal

Justice Division of the Governor’s Office and receives 0.2581 percent of the

consolidated court cost.7 The Crime Stoppers Council (“Council”) distributes all or

nearly all of the money to local crime stopper organizations that meet its

certification criteria.8 Crime stopper organizations partner with local law

enforcement agencies, operate ‘tip lines’ that civilians can call to report suspected

5
  Lawrence F. Alwin, CPA, An Audit Report on Funds Collected as Court Costs in Fiscal Year
2001, State Auditor’s Office, 60 (May 2002), http://www.sao.state.tx.us/reports/main/02-049.pdf;
See also Zapata Email, supra note 4 (“I don’t see any program specific expenditures since it goes
to unappropriated general revenue and there is no such program set up in our agency.”).
6
  Id.
7
  Texas Crime Stoppers Council, http://thetexascrimestoppers.org/wp-
content/uploads/Council.pdf.
8
  Id.; 2001 Audit, supra note 5, at 40-41.

                                               4
criminal activity, and encourage civilians to report crimes by offering awards for

information that leads to arrest.9

       As stated in the appellant’s brief, the money from the consolidated court cost

in Account 5012 serves an executive ‘police power’ function and does not recoup

the costs of judicial resources expended in the trial of the case.10 The money also

does not recoup executive resources that were expended in the case, since many

defendants are apprehended without the aid of a crime stoppers tip. In felony cases

in which a reward was given for a crime stoppers tip, a mechanism to reimburse

the crime stoppers organization already exists. Under Texas law, a judge may order

a defendant convicted of a felony offense to “repay all or part of a reward paid by a

crime stoppers organization.” TEX. CRIM. PROC. CODE ANN. ART. 37.073(a).

       C. Money Deposited into Account 5013, Breath Alcohol Testing

       Account 5013, Breath Alcohol Testing, is administered by the Texas

Department of Public Safety (“DPS”) and receives 0.5507 percent of the

consolidated court cost.11 The money is designated for the “implementation,

administration, and maintenance of the statewide breath alcohol testing program.”

TEX. CRIM. PROC. CODE ANN. ART. 102.016(c). This money is not used to recoup

9
  TEX. GOV'T CODE ANN. § 414.005; Crime Stoppers Council Application for Certification,
http://thetexascrimestoppers.org/wp-content/uploads/Application-Initial-Certification-2014.pdf.
10
   Texas Comptroller Manual of Accounts, Account 5012,
https://fmcpa.cpa.state.tx.us/fiscalmoa/fund.jsp?num=5012
11
   Texas Comptroller Manual of Accounts, Account 5013,
https://fmcpa.cpa.state.tx.us/fiscalmoa/fund.jsp?num=5013


                                               5
judicial resources and is not compensatory in nature, since many defendants,

including Mr. Salinas, are convicted of crimes that have no connection to breath

alcohol testing.

       In fiscal years 1997-1999, there were no expenditures from Account 5013.12

DPS began making expenditures from the account in fiscal year 2000, and in fiscal

year 2001, 80 percent of the expenditures went to fund DPS employee salaries and

benefits.13 There were again no expenditures from the account during fiscal years

2011-2013.14

       D. Money Deposited into Account 581, Bill Blackwood Law
       Enforcement Management Institute

       Account 581, Bill Blackwood Law Enforcement Management Institute, is

administered by Sam Houston State University and receives 2.1683 percent of the

consolidated court cost.15 The Bill Blackwood Law Enforcement Management

Institute was “created for the purpose of training of police management personnel.”

TEX. EDUC. CODE. ANN. § 96.64(1).

       Expenditures from Account 581 are unrelated to judicial resources. Funds

from Account 581 are being spent on food, instructor fees, and travel expenses for

various law enforcement trainings. For example, the Leadership Inventory for
12
   2001 Audit, supra note 5, at 44.
13
   Id.
14
   Email attachments from Michele Freeland, Legal Assistant, Department of Public Safety, Nov.
14, 2014, available at http://www.texasfairdefenseproject.org/684-2/.
15
   Texas Comptroller Manual of Accounts, Account 581,
https://fmcpa.cpa.state.tx.us/fiscalmoa/fund.jsp?num=0581

                                              6
Female Executives course (“LIFE”) “is designed to bridge the existing gap of

female representation at executive levels of law enforcement in Texas and

nationwide.”16 In fiscal year 2012, $5,991.54 from Account 581 was spent on food,

snacks, and catered dinners for LIFE participants.17 Another example is the

International Police Program, which includes an officer exchange program. The

program is “led by Magdalena Denham, an experienced international traveler”18

who received $6,103.73 from Account 581 for travel expenses in fiscal year 2012

alone.19

       Other types of expenditures from Account 581 in fiscal year 2014 include:

       1. $139: A plaque for the Constable’s Leadership College Speaker20

       2. $2,500: A sponsorship donation to the undergraduate honors program at

           Sam Houston State University21

       3. $892: A wireless iPad Air22

16
   LEMIT Programs, http://www.lemitonline.org/programs/prodev/
17
   2012 LEMIT Invoices, invoice numbers I0043132, I0043297, I0043298, I0056253, I0056761,
I0058675, I0068902, I0069191, I0069866, available at
http://www.texasfairdefenseproject.org/684-2/.
18
   http://www.lemitonline.org/ipp/
19
   2012 LEMIT Invoices, supra note 17, invoice numbers I0047987, I0050699, I0057756,
I0058005, I0062229, I0065158, I0066779, I0069617.
20
   2014 LEMIT Invoices, invoice number I0111341, available at
http://www.texasfairdefenseproject.org/684-2/.
21
   The donation went “to provide funding for scholarships, instructional support, programs, and
operating expenses for its honors students and faculty.” About the Evening, Sam Houston State
University, http://www.shsu.edu/academics/honors/letstalk/AbouttheEvening.html. The Bill
Blackwood Institute has been a sponsor of the honors program for five years. See Let’s Talk
Honors Event Sponsors, Sam Houston State University,
http://www.shsu.edu/academics/honors/letstalk/eventsponsors.html.

                                               7
       4. $337: Candy23

       5. Over 100 orders for dry cleaning services24

       E. Money Deposited into Account 116, Law Enforcement Officers
       Standards and Education

       Account 116, Law Enforcement Officers Standards and Education, is

administered by the Texas Commission on Law Enforcement (“TCOLE”) and

receives 5.0034 percent of the consolidated court cost.25 Since fiscal year 2001,

much of the money in Account 116 has gone to fund law enforcement continuing

education grants.26 Grants are awarded to many types of agencies. In 2004, for

example, grantees included 32 city marshals, 29 community colleges, 559

constable offices, 254 sheriff offices, 145 county and district attorney offices, 181

fire departments, 755 police departments, and 72 school districts.27



22
   2014 LEMIT Invoices, supra note 20, invoice number I0116104.
23
   Id., invoice number I0112411 (2014).
24
   Searching within the 2014 LEMIT Invoices for “dry cleaning services” yielded 107 results. Id.
25
   Texas Comptroller Manual of Accounts, Account 116,
https://fmcpa.cpa.state.tx.us/fiscalmoa/fund.jsp?num=0116.
26
   Kim Vickers, TCOLE Budget Summary and Summary of Recommendations,
http://www.lbb.state.tx.us/Documents/SFC_Summary_Recs/83R/Agency%20407.pdf.
It seems that the amount of grant money distributed is about $6 million a year. See, e.g., Id.
(“Recommendations for the Comptroller’s Fiscal Programs provide $6.0 million to fund these
grants in each year of the 2014–15 biennium.”); TCOLE email attachment from Laura Le Blanc,
Custodian of Records, TCOLE, Oct. 23, 2014, (showing exactly $6.0 million on grants in 2014)
available at http://www.texasfairdefenseproject.org/684-2/; Lawrence F. Alwin, CPA, A
Financial Review of the Law Enforcement Officer Standards and
Education Fund, State Auditor’s Office, http://www.sao.state.tx.us/reports/main/04-047.pdf
(showing approximately $6.0 million on grants in 2004).
27
   Alwin, Financial Review, supra note 26, at 10.

                                               8
       Account 116 is also used to fund various TCOLE initiatives. In fiscal year

2014, TCOLE spent $2,694,985 from Account 116 on licensing and standards

development, regulation of law enforcement officers, technical assistance to law

enforcement agencies, utilities, supplies, travel, capital expenditures, and personnel

costs (salary, benefits, etc.).28

       F. Money Deposited into Account 107, Comprehensive Rehabilitation

       Account 107, Comprehensive Rehabilitation, is administered by the

Department of Assistive and Rehabilitative Services and receives 9.8218 percent of

the consolidated court cost.29 Under TEX. HUM. RES. CODE ANN. § 111.052, funds

may only be used to provide rehabilitative services to Texans with disabilities.

       Since at least 2011, Account 107 has gone to fund the Comprehensive

Rehabilitation Services (“CRS”) program. The CRS program is not a judicial

program and is not related to the criminal justice system. It is a medical and human

services program that serves Texans over age 16 who have suffered a traumatic

brain injury or spinal cord injury. The goal of the program is to help its target

population “gain and maintain independence in their homes and communities.”30

The CRS program provides services such as “inpatient comprehensive

rehabilitation services, outpatient rehabilitation services, and/or post-acute brain

28
   TCOLE email attachment, supra note 26.
29
   Texas Comptroller Manual of Accounts, Account 107,
https://fmcpa.cpa.state.tx.us/fiscalmoa/fund.jsp?num=0107
30
   Comprehensive Rehabilitative Services, DARS, http://www.dars.state.tx.us/drs/crs.shtml

                                              9
injury services.”31 The Department of Assistive and Rehabilitative Services

estimates that around 7,400 people in Texas will potentially need the CRS

program’s services by 2017.32

       G. Money Formerly Deposited into Account 99, Operator's and
       Chauffeur's Licenses, Now Deposited into Account 977, Law
       Enforcement and Custodial Officer Supplemental Retirement Fund

       Account 99, Operator’s and Chauffeur’s Licenses, was administered by the

Department of Public Safety and received 11.1426 percent of the consolidated

court cost.33 Since 2011, incoming money from the consolidated court cost has

been redirected to Account 977, Law Enforcement and Custodial Officer

Supplemental Retirement, which is administered by the Employees Retirement

System of Texas. 34

       Though it no longer receives incoming money, funds from Account 99 are

still being expended by the Department of Public Safety. In fiscal year 2011, the

account was worth over $122 million and expenditures for the year totaled under

$50 million.35 Nearly $3 million was transferred out of the account that year36 and

into the Border Crime Grant Program of the Criminal Justice Division of the
31
   http://www.dars.state.tx.us/drs/crs.shtml
32
   3A Strategy Request, Page 2, Goal 2, Objective 3, Strategy 4, available at
http://www.texasfairdefenseproject.org/684-2/.
33
   Texas Comptroller Manual of Accounts, Account 99,
https://fmcpa.cpa.state.tx.us/fiscalmoa/fund.jsp?num=0099
34
   Texas Comptroller Manual of Accounts, Account 977,
https://fmcpa.cpa.state.tx.us/fiscalmoa/fund.jsp?num=0977
35
   2011 DPS Financial Report, available at http://www.texasfairdefenseproject.org/684-2/.
36
   2011-2013 DPS Financial Reports, available at http://www.texasfairdefenseproject.org/684-2/.


                                              10
Governor’s Office under TEX. GOV'T CODE ANN. § 772.0071(d).37 Every year since

at least 2011, over $1 million from the fund has gone to reducing the threat of

terrorism,38 over $2 million to emergency and disaster response coordination and

mitigation,39 over $14 million to regulatory services,40 and over $19 million to

local border security efforts.41 Some of these subject areas, such as disaster

response, have nothing to do with the courts or even necessarily with crime.

       Account 977 began receiving money from the consolidated court cost in

2013. This account funds supplemental retirement and death benefits for

government employees who have completed 20 or more years of service as a law

enforcement or custodial officer.42 Qualifying employees include executive-branch

officers employed by the Board of Pardons and Paroles, the correctional

institutions division of the Texas Department of Criminal Justice, the Texas

Alcoholic Beverage Commission, and the Parks and Wildlife Department.43




37
   “Undedicated and unobligated funds in the operators and chauffeurs license account may be
appropriated only to the criminal justice division for the purpose of awarding grants under this
section.”
38
   2014 DPS Legislative Appropriations Request, at 20, available at
http://www.dps.texas.gov/LBB/lar2014-15.pdf
39
   Id. at 43, 48, 52.
40
   Id. at 81, 84, 88.
41
   Id. at 14.
42
   Texas Comptroller Manual of Accounts, Account 977,
https://fmcpa.cpa.state.tx.us/fiscalmoa/fund.jsp?num=0977
43
   TEX. GOV'T CODE ANN. § 811.001.


                                                11
       H. Money Deposited into Account 421, Criminal Justice Planning

       Account 421, Criminal Justice Planning, is administered by the Criminal

Justice Division of the Governor’s Office and receives 12.5537 percent of the

consolidated court cost as well as matching federal funds.44 Account 421 provides

grants to state and local projects “designed to reduce crime and improve the

criminal and juvenile justice systems.”45

       Much of the money from Account 421 funds border security efforts. In 2006,

for example, Governor Perry awarded $3.4 million to Operation Linebacker, an

initiative “to increase law enforcement presence along the Texas-Mexico border,

particularly between legal points of entry.”46 The award provided “additional patrol

hours, new technology tools, and rapid deployment teams of state troopers.”47

Likewise, in 2011, Governor Perry awarded nearly $2 million to the Department of

Public Safety’s Drawbridge Expansion Project to “increase the number of




44
   Texas Comptroller Manual of Accounts, Account 421,
https://fmcpa.cpa.state.tx.us/fiscalmoa/fund.jsp?num=0421
45
   Id.
46
   Gov. Perry Awards $3.8 Million More for Border Security, Press Release (Feb. 2, 2006),
http://governor.state.tx.us/news/press-release/2500/.
47
   Id.

                                              12
surveillance cameras located along the Texas‐Mexico border.”48 Smaller grants are

frequently awarded to fund border-area prosecutor positions.49

       Many Account 421 grants also go towards educational and counseling

services for children. For example, last year a $38,163 grant funded a school

resource officer to “conduct patrols, participate in mentoring students, [and] teach

classes on bullying, cyberbullying, and drug awareness”50 and a $43,631 grant

funded an initiative “to combat truancy, discipline problems, and poor academic

performance.”51 Truancy-related grants have also gone towards GPS devices that

monitor students’ activities.52 Grants benefiting children also include those

awarded to Big Brother and Big Sister mentoring programs,53!Court Appointed

Special Advocate (“CASA”) programs,54!Drug Abuse Resistance

Education (“DARE”) programs,55 and after school art programs.56

       Other grants fund law enforcement training academies,57 outpatient drug

treatment programs,58 undercover sting operations to catch vendors selling

48
   2011-2013 Criminal Justice Planning Grants, email attachment from Chis Sterner, Assistant
General Counsel, Office of the Governor, grant number 2535401, available at
http://www.texasfairdefenseproject.org/684-2/.
49
   See, e.g., Id., grant numbers 2283704, 2537803, 2749401, 2537203, 2537903, 2537603, and
2536503.
50
   Id., grant number 2666601.
51
   Id., grant number 2725501.
52
   Id., grant number 2482401.
53
   Id., grant numbers 1903305 and 2403802.
54
   Id., grant numbers 1464613 and 1464614.
55
   Id., grant numbers 1431013, 1598311, 1431014, 1598312, 1431015, and 1598313.
56
   Id., grant number 2592101.
57
   Id., grant numbers 1485913, 1426412, 1465913, and 1427613.

                                              13
alcoholic beverages to minors,59 and tactical marine unit boats.60 The Department

of Public Safety has also used at least $200,000 from Account 421 to fund its

Voter ID project, the goal of which is to “promote the integrity of the voting

process and to divert the potential for voter fraud.”61

       I. Money Deposited into Account 5029, Juvenile Crime and Delinquency

       Account 5029, Center for Study and Prevention of Juvenile Crime and

Delinquency, is administered by Prairie View A&M University and receives

1.2090 percent of the consolidated court cost.62 Prairie View A&M University uses

Account 5029 to fund the Texas Juvenile Crime Prevention Center, which is

housed in the College of Juvenile Justice and Psychology. The Center conducts

research relating to psychology and juvenile crime, offers undergraduate and

graduate degrees, and “improve[s] dissemination of knowledge pertaining to

human behavior.”63 The juvenile justice system is separate from the Texas criminal

system and funds spent on the juvenile justice system do not recoup the costs of

criminal court resources.




58
   Id., grant numbers 2056406, 2067604, and 2196505.
59
   Id., grant number 1996204.
60
   Id., grant number 2698501.
61
   Id., grant number 2750401.
62
   Texas Comptroller Manual of Accounts, Account 5029,
https://fmcpa.cpa.state.tx.us/fiscalmoa/fund.jsp?num=5029.
63
   Mission and Purpose, http://www.pvamu.edu/cojjp/texas-juvenile-crime-prevention-
center/mission-purpose/.

                                             14
       Over half of expenditures from Account 5029 fund staff salaries and

benefits.64 Staff research projects include studies on grade retention among African

American adolescent males65 and on differences in parenting styles between

African American alcoholic and nonalcoholic parents in the Midwest.66 Staff also

provide trainings for the general public. For example, the Center’s webpage

advertises parent engagement trainings, which emphasize communication,

effective parenting, effective advocacy, and parental involvement.67

       Another of the Center’s projects is the Gavel Series, which offers classes in

legal topics, most of which are unrelated to juvenile justice. Unrelated topics

include real estate,68 bankruptcy,69 student financial aid abuse,70 landlord/tenant


64
   2012 Expenditure Report, email attachment from Paula Sandles, Prairie View A&M
University, Nov. 13, 2014, available at http://www.texasfairdefenseproject.org/684-2/; see also
2001 Audit, supra note 5, at 54, (showing that 88% of funding went to salaries and benefits in
2001).
65
   Laxley W. Rodney, Betty Crafter, H. Elaine Rodney & Robert M. Mupier, Variables
Contributing to Grade Retention Among African American Adolescent Males, The Journal of
Educational Research, volume 92, Issue 3, page 185, 1999.
66
   Robert Mupier, H. Elaine Rodney, & Lorraine A. Samuels, Difference in Parenting Style
Between African American Alcoholic and Nonalcoholic Parents, Journal of Contemporary
Human Services, Volume 83, number 5, 2002, available at
http://www.tandfonline.com/doi/abs/10.1080/00220679909597594#.VGo5wfTF_R4 (studying a
sample of 1,000 African American adolescents in a Midwestern city)
67
   Parent Engagement Training Program, http://www.pvamu.edu/cojjp/texas-juvenile-crime-
prevention-center/training/
68
   Gavel Series, Aug. 3 2013 http://www.pvamu.edu/cojjp/texas-juvenile-crime-prevention-
center/the-gavel-series/the-gavel-series-aug-3rd-2013/
69
   Gavel Series to Address Community Issues, (Jan. 18, 2013),
http://www.pvamu.edu/news/2013/01/18/gavel-series-to-address-community-issues/
70
   Gavel Series Sign Up Page, http://www.pvamu.edu/cojjp/texas-juvenile-crime-prevention-
center/the-gavel-series/

                                              15
rights,71 and entertainment law.72 The next event in the series features classes titled

“Holiday Blues: Your Mental Health” and “Tax Law Basics: Filing Your Taxes.”73

      J. Money Deposited into Account 469, Compensation to Victims of
      Crime

      Account 469, Compensation to Victims of Crime, is administered by the

Attorney General and receives 37.6338 percent of the consolidated court cost, as

well as money from other funding sources.74 Account 469 directly compensates

victims for crime-related expenses, awards grants to state agencies and nonprofit

corporations that serve victims of crime, and reimburses law enforcement agencies

for sexual assault medical forensic exams.75

      In fiscal year 2013, Account 469 awarded compensations to 11,967 victims.

That same year, over $4 million went towards sexual assault examination

reimbursements76 and over $43 million was awarded in victim services grants.77

There are eight victim assistance grant programs, which include victim notification


71
   Gavel Series, May 4 2013, http://www.pvamu.edu/cojjp/texas-juvenile-crime-prevention-
center/the-gavel-series/the-gavel-series-may-4-2013/
72
   Gavel Series, Nov. 2, 2013, http://www.pvamu.edu/cojjp/texas-juvenile-crime-prevention-
center/the-gavel-series/november-2-2013/
73
   Gavel Series Flyer,
http://www.pvamu.edu/include/College%20of%20Juvenile%20Justice%20and%20Psychology/E
vents/flyers/gavel-flyer.pdf
74
   Texas Comptroller Manual of Accounts, Account 469,
https://fmcpa.cpa.state.tx.us/fiscalmoa/fund.jsp?num=0469
75
   Crime Victim Services 2013 Annual Report, Office of the Attorney General, 1,
https://www.texasattorneygeneral.gov/AG_Publications/pdfs/cvs_annual2013.pdf.
76
   Id. at 12.
77
   Id. at 1.

                                           16
system grants, Court Appointed Special Advocate (CASA) grants, and Children’s

Advocacy Center grants.78

      As Appellant points out, a mechanism for reimbursing crime victims already

exists in the form of restitution.79 In addition, under Texas law a judge can order a

defendant to compensate any expenditures from the Account 469 that are directly

related to that defendant’s case.80 It is important to compensate victims of crime.

However, someone convicted of a victimless crime should not be forced to pay the

victim of another defendant’s crime under the guise of a court cost.

      K. Money Deposited into Account 5153, Emergency Radio
      Infrastructure

      Account 5153, Emergency Radio Infrastructure, is administered by the

Department of Public Safety and receives 5.5904 percent of the consolidated court

cost. Account 5153 was established in September 2011. Though the account is

collecting money, there have not yet been any expenditures.81

      Once the money from Account 5153 is appropriated, it will be used to

develop and maintain an interoperable statewide emergency radio infrastructure.

The goal of this project is to improve communications during emergencies and

78
   Id. at 24.
79
   Appellant brief, at 22.
80
   Texas Comptroller Manual of Accounts, Account 469,
https://fmcpa.cpa.state.tx.us/fiscalmoa/fund.jsp?num=0469.
81
   Interoperable Communications 2014 Annual Report, Office of the Governor, 19,
http://www.txdps.state.tx.us/LawEnforcementSupport/communications/interop/documents/intero
pRpt.pdf.


                                            17
mitigate the threat of both natural and manmade disasters.82 Many of the disasters

that the emergency radio infrastructure is anticipated to address are unrelated to

criminal activity or even human agency. As one report on the need for such

infrastructure states, “Texas still experiences record numbers of natural disasters

requiring rapid, coordinated response from the emergency response community. . . .

The expanse of natural disasters experienced in Texas highlights the importance

and need of coordinated response during these emergencies.”83

       L. Money Deposited into Account 5083, Correctional Management
       Institute and Criminal Justice Center

       Account 5083, Correctional Management Institute and Criminal Justice

Center, is administered by Sam Houston State University and receives 1.209% of

the consolidated court cost.84 A sample of the programs they offer include

“Wardens Peer Interaction Program,” “Women in Criminal Justice Conference,”

“National Jail Leadership Command Academy,” and “Senior Level Corrections

Leadership Development Program.”85

       Account 5083 is similar to Account 581, Bill Blackwood Law Enforcement

Management Institute, which is also administered by Sam Houston State




82
   Id. at 22.
83
   Id. at 3-4.
84
   Texas Comptroller Manual of Accounts, Account 5083,
https://fmcpa.cpa.state.tx.us/fiscalmoa/fund.jsp?num=5083
85
   About CMIT, http://www.cmitonline.org/about.html.

                                             18
University.86 Like Account 581, Account 5083 provides funds for food and travel

expenses. For example, overall expenditures for food totaled over $2,000 in July

2013 alone,87 and in 2014 the Account paid more than $12,000 for an

undergraduate alumna to travel to Salt Lake City. 88 Also like Account 581, 89 Sam

Houston State University has used Account 5083 to donate $2,500 to the

University’s undergraduate honors program every year for the past five years.90 In

fiscal year 2012, $2,432 from Account 5083 was used to buy wireless iPads.91 Last

year, the Account provided $250 for the University’s annual Mardi Gras festival.92

III.   By Practice and by Statute, Every Consolidated Court Cost Assessed

       Funds Expenditures that are Unrelated to the Courts or Even to the

       Criminal Justice System in General

       The State claims that all of the accounts improve the criminal justice system,

even if they do not recoup judicial resources. In practice, all 12 of the challenged

86
   Supra note 15.
87
   2013 CMIT Invoices, invoice numbers I0098751, I0098752, available at
http://www.texasfairdefenseproject.org/684-2/.
88
   2014 CMIT Invoices, invoice number I0139718, available at
http://www.texasfairdefenseproject.org/684-2/; Fall 2011 Commencement Program, Sam
Houston State University, http://www.shsu.edu/dept/registrar/documents/commencement-
programs/Fall%202011%20Commencement%20Program.pdf (listing Kalyn Rochelle Cavazos
among the 2011 graduating class).
89
   Account 581, Bill Blackwood Law Enforcement Management Institute, supra note 21.
90
   2012 CMIT Invoices, invoice number I0051744, available at
http://www.texasfairdefenseproject.org/684-2/; 2013 CMIT Invoices, supra note 87, invoice
number I0085411; Let’s Talk Honors Event Sponsors, Sam Houston State University,
http://www.shsu.edu/academics/honors/letstalk/eventsponsors.html (listing the Correctional
Management Institute of Texas as a sponsor for five years).
91
   2012 CMIT Invoices, supra note 90, invoice numbers I0053227, I0068657.
92
   2013 CMIT Invoices, supra note 87, invoice number I0084175.

                                             19
accounts use the consolidated court cost for expenditures that are unrelated to the

courts or even to the criminal justice system in general. For example, the

consolidated court cost forces criminal defendants to subsidize anti-bullying

programs, 93 voter ID projects,94 undergraduate honors departments,95 and studies

on grade retention among African American students.96

      Furthermore, two of the accounts are legislatively mandated to fund

programs unrelated to either the courts or the criminal justice system more broadly.

When Account 5011, Abused Children’s Counseling, was repealed by the

legislature, the money was automatically re-categorized as unappropriated general

revenue. The second account, Account 107, Comprehensive Rehabilitation, is

required by statute to provide assistance to people with disabilities.

      The State also argues that to prevail on his facial challenge, Appellant “must

establish that the statute always operates unconstitutionally in all possible

circumstances.”97 Because the percentages allotted to each account are set by

statute, money from the consolidated court cost always goes to impermissible

functions. There is no circumstance in which the consolidated court cost only funds



93
   See Money Deposited into Account 421, Criminal Justice Planning, supra.
94
   Id.
95
   See Money Deposited into Account 581, Bill Blackwood Law Enforcement Management
Institute, supra.
96
   See Money Deposited into Account 5029, Juvenile Crime and Delinquency, supra.
97
   Appellee’s Brief at 7.

                                           20
expenditures reasonably related to the courts or even to the criminal justice system

in general.

                                     PRAYER

      For the reasons stated above, the Amicus Curiae prays the Court vacate the

holding of the Fourteenth Court of Appeals and order the consolidated court cost

deleted from the judgment and bill of costs, or grant all relief the Court may deem

appropriate.

                                       Respectfully Submitted,

                                       ___________________
                                       Emily Gerrick
                                       Texas Bar No. 24092417
                                       egerrick@fairdefense.org
                                       TEXAS FAIR DEFENSE PROJECT
                                       510 South Congress Avenue, Suite 208
                                       Austin, Texas 78704
                                       Tel. 512-879-1189
                                       Fax 512-637-5224




                                         21
                      CERTIFICATE OF COMPLIANCE

      This document complies with the typeface requirements of Tex. R. App. P.

9.4(e) because it has been prepared using Microsoft Word in a conventional

typeface no smaller than 14-point text and 12-point for footnotes. This document

also complies with the word-count limitations of Tex. R. App. P. 9.4(i) because it

contains 4,395 words, as calculated by the word processing software, excluding

any parts exempted by Tex. R. App. P. 9.4(i)(1).


                                       _________________________
                                       Emily Gerrick
                                       Attorney for Amicus

                         CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the above and foregoing

Amicus Curiae’s Brief has been served on each of the following by prepaid first-

class United States Mail: Alan Curry, Assistant District Attorney, 1201 Franklin

Street, 6th Floor Houston, TX 77002, and Jani Maselli, Assistant Public Defender,

1201 Franklin, 13th Floor, Houston, TX 77002 on January 14, 2015.


                                       __________________________
                                       Emily Gerrick
                                       Attorney for Amicus




                                         22
