                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-16-00436-CR


ARMANDO HURTADO                                                   APPELLANT

                                      V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1451716D

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                       MEMORANDUM OPINION1

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      A jury found Appellant Armando Hurtado guilty of theft of property with a

value of $2,500 or more but less than $30,000, found both of the allegations in

the “State Jail Felony Second-Degree Enhancement Notice” to be true, and

assessed his punishment at twenty years’ confinement.          The trial court

sentenced Hurtado in accordance with the jury’s recommendation and assessed


      1
      See Tex. R. App. P. 47.4.
court costs of $319, which included $133 for consolidated court costs. In a single

point, Hurtado challenges the constitutionality of section 133.102(a)(1) of the

Texas Local Government Code under which the consolidated court cost was

assessed. For the reasons set forth below, we will affirm.2

      Section 133.102(a)(1) states that a person convicted of an offense shall

pay as court costs, in addition to all other costs, $133 on conviction of a felony.

Tex. Loc. Gov’t Code Ann. § 133.102(a)(1) (West Supp. 2016).               Section

133.102(e) further requires the comptroller to allocate the $133 court costs to

fourteen accounts and assigns percentages to each account. Id. § 133.102(e).

      The Texas Court of Criminal Appeals recently examined the fourteen

accounts listed in section 133.102(e) and determined that two accounts were not

related to a legitimate criminal justice purpose but were more accurately

characterized as a tax, thus rendering section 133.102 facially unconstitutional.

See Salinas v. State, No. PD–0170–16, 2017 WL 915525, at *4, *5 (Tex. Crim.

App. Mar. 8, 2017) (holding that subsections (e)(1) and (6), which allocated

portions of the $133 consolidated court costs to comprehensive rehabilitation and

abused children’s counseling, violated the Separation of Powers provision of the

Texas constitution). The remedy was to modify the judgment to change the $133

consolidated court costs to $119.93. Id. at *7. The court of criminal appeals,

however, limited the application of its holding to the following:

      2
       Because Hurtado challenges only the constitutionality of the consolidated
court costs he was assessed, we omit a factual background.


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      We will also apply our constitutional holding in this case to any
      defendant who has raised the appropriate claim in a petition for
      discretionary review before the date of this opinion, if that petition is
      still pending on the date of this opinion and if the claim would
      otherwise be properly before us on discretionary review. Otherwise,
      our holding will apply prospectively to trials that end after the date
      the mandate in the present case issues.

Id. at *6. The court of criminal appeals further stated in a footnote following the

previous paragraph that if the legislature redirected the funds in sections (e)(1)

and (6) to a legitimate criminal justice purpose, then the entire consolidated court

cost “may be collected. If that occurs before mandate issues, the only cases that

will be affected by this opinion will be the few that are now pending in this Court

and are appropriate for relief.” Id. at *6, n.54. The legislature did exactly what

the court of criminal appeals had suggested in its footnote; it deleted former

sections (e)(1) and (6), added their percentages to the fair defense account in

former section (e)(14), and made the new percentage effective June 15, 2017,

which preceded the mandate that issued in Salinas on June 30, 2017. See Tex.

Loc. Gov’t Code Ann. § 133.102(e) (West, Westlaw through 2017 R.S.).

      Here, Hurtado does not argue that he falls within one of the groups

described above that is entitled to relief but instead argues that because he “has

raised the identical argument [as Salinas] in his appellate process,” we should

apply the same remedy to his appeal.          This court has recently addressed

Hurtado’s argument in Horton v. State, No. 02-16-00229-CR, 2017 WL 1953333,

at *5 (Tex. App.—Fort Worth May 11, 2017, pet. filed), and Hawkins v. State, No.

02-16-00104-CR, 2017 WL 1352097, at *3 (Tex. App.—Fort Worth Apr. 13, 2017,


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pet. filed). In both cases, we sustained the appellants’ constitutional challenges

to the extent that they complained of the constitutionality of the allocation of

funds under sections 133.102(e)(1) and (6) but stated that “we heed the directive

of the Texas Court of Criminal Appeals precluding us from applying its Salinas

holding retroactively to modify [the] consolidated fee.” See Hawkins, 2017 WL

1352097, at *3; see also Horton, 2017 WL 1953333, at *5. We are required to

follow that same binding precedent here and therefore sustain Hurtado’s sole

point to the extent that it can be broadly read to challenge the specific

subsections of 133.102(e) that were held unconstitutional in Salinas, but we are

precluded from retroactively modifying Hurtado’s consolidated court costs to

delete the fees associated with those subsections.         See Salinas, 2017 WL

915525, at *6; Horton, 2017 WL 1953333, at *5; Hawkins, 2017 WL 1352097, at

*3.

      Having sustained Hurtado’s sole point to the extent that sections

133.102(e)(1) and (6) are unconstitutional but having recognized the limitation

placed on our ability to reform the judgment to delete the costs related to those

subsections, we affirm the trial court’s judgment.

                                                     /s/ Sue Walker
                                                     SUE WALKER
                                                     JUSTICE

PANEL: WALKER, KERR, and PITTMAN, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)



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DELIVERED: July 27, 2017




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