                                                                       pd-0100-15
                                                     COURT OF CRIMINAL APPEALS
                                                                      AUSTIN, TEXAS
April 9, 2015                                      Transmitted 4/9/2015 10:44:45 AM
                                                     Accepted 4/9/2015 11:00:32 AM
                                                                       ABEL ACOSTA
                     Nos. PD-0100-15 & 0101-15                                 CLERK

                IN THE COURT OF CRIMINAL APPEALS

                     OF THE STATE OF TEXAS




                     OSMIN PERAZA, Appellant

                                  v.

                   THE STATE OF TEXAS, Appellee


                      Appeal from Harris County




                            * * * * *

                  STATE’S BRIEF ON THE MERITS

                            * * * * *



                          LISA C. McMINN
                      State Prosecuting Attorney
                        Bar I.D. No.13803300

                            P.O. Box 13046
                         Austin, Texas 78711
                      information@spa.texas.gov
                      512/463-1660 (Telephone)
                          512/463-5724 (Fax)
   NAMES OF ALL PARTIES TO THE TRIAL COURT’S JUDGMENT

Trial Judge: Hon. Jan Krocker.

Appellant: Osmin Peraza.

Appellee: The State of Texas.

Trial Counsel for Appellant: Emily DeToto, 3000 Smith, Suite 4, Houston, Texas
77006.

Appellate Counsel for Appellant: Jani Maselli Wood, Assistant Public Defender,
1201 Franklin St, 13th Floor, Houston, Texas 77002.

Trial Counsel for the State: Sarah Bruchmiller, Assistant District Attorney,1201
Franklin, 6th Floor, Houston, Texas 77002.

Appellate Counsel for the State: Jessica Akins, Assistant District Attorney,1201
Franklin, 13th Floor, Houston, Texas 77002, and Lisa C. McMinn, State Prosecuting
Attorney, P.O. Box 13046, Capitol Station, Austin, Texas 78711.
                                       TABLE OF CONTENTS

INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii-iv

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUE PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

        The First Court of Appeals erred by finding the DNA record fee is an
        unconstitutional tax that violates the separation of powers clause.

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-15

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17




                                                         i
                                        INDEX OF AUTHORITIES

Crocker v. Finley, 459 N.E.2d 1346 (Ill. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Ex parte Carson, 159 S.W.2d 126 (Tex. Crim. App. 1942) . . . . . . . . . . . . 3, 10-12

LeCroy v. Hanlon, 713 S.W.2d 335 (Tex. 1986). . . . . . . . . . . . . . . . . 12-13, 13 n.8

O’Bannon v. State, 435 S.W.3d 378 (Tex. App.– Houston [14th Dist.] 2014) . . . 12

Peraza v. State, No. 01-12-00069-CR and No. 01-12-00691-CR, 2014 Tex. App.
13915 (Tex. App. –Houston [1st Dist. ] 2014). . .. . . . . . . . . . . . . . . . . . . . . passim

Salinas v. State, 426 S.W.3d 318 (Tex. App.—Houston [14th Dist.] 2014, pet.
granted). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

State v. Claborn, 870 P.2d 169 (Okla. Crim. App. 1994).. . . . . . . . . . . . . 11, 13, 15

State v. Rhine, 297 S.W.3d 301 (Tex. Crim. App. 2009)... . . . . . . . . . . . . . . . . . . 14

State v. Rosseau, 396 S.W.3d 550 (Tex. Crim. App. 2013).. . . . . . . . . . . . . . . . . 12

State v. Vasilas, 253 S.W.3d 268 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . . 7

State v. Young, 238 So.2d 589 (Fla. 1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15

Tussey v. State, 494 S.W.2d 866 (Tex. Crim. App. 1973). . . . . . . . . . . . . . . . 14 n.9

Weir v. State, 278 S.W.3d 364 (Tex. Crim. App. 2009).. . . . . . . . . . . . . . . . . . . . 11

Constitution

TEX. CONST. Art. III, § 56. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Statutes

TEX. CODE CRIM. PROC. art. 102.004. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

TEX. CODE CRIM. PROC. art. 102.011(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . 15 n.11

                                                              ii
TEX. CODE CRIM. PROC. art. 102.011(a)(6). . . . . . . . . . . . . . . . . . . . . . . . . . 15 n.12

TEX. CODE CRIM. PROC. art. 102.020. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

TEX. CODE CRIM. PROC. art. 102.020(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

TEX. CODE CRIM. PROC. art. 102.020(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. CODE CRIM. PROC. art. 102.020(j) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

TEX. CODE CRIM. PROC. art. 102.056. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-7

TEX. CODE CRIM. PROC. art. 102.056(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

TEX. CODE CRIM. PROC. art. 102.056(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10 n.7

TEX. GOV’T CODE § 102.021(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

TEX. GOV’T CODE § 2309.001.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 n.5

TEX. GOV’T CODE § 311.032.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 n.9

TEX. GOV’T CODE § 411.0205.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 n.3

TEX. GOV’T CODE § 411.142. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 n.2

TEX. GOV’T CODE § 411.143(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. GOV'T CODE § 411.143(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

TEX. GOV’T CODE § 411.145(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7

TEX. GOV’T CODE § 411.1471. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 n.3

TEX. GOV’T CODE § 411.1471(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

TEX. GOV’T CODE § 772.006 (a)(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5


                                                     iii
TEX. LOC. GOV’T CODE. § 133.102.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 n.13

TEX. TRANSP. CODE § 222.003(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 7 n.6

Websites

http://gov.texas.gov/financial-services/grants/. . . . . . . . . . . . . . . . . . . . . . . . . . 5 n.4

http://gov.texas.gov/files/cjd/AppendixB_CJD_Guide_to_Grants_v6.pdf . . . 5 n.4




                                                   iv
                           Nos. PD-0100-15 & 0101-15

                  IN THE COURT OF CRIMINAL APPEALS

                           OF THE STATE OF TEXAS

OSMIN PERAZA,                                                             Appellant

v.

THE STATE OF TEXAS,                                                        Appellee

                                    * * * * *

                      STATE’S BRIEF ON THE MERITS

                                    * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      The State Prosecuting Attorney respectfully presents to this Court its brief on

the merits.

              STATEMENT REGARDING ORAL ARGUMENT

      The Court granted argument, and the State Prosecuting Attorney requests it.

                         STATEMENT OF THE CASE

      Appellant was convicted of two counts of aggravated sexual assault of a

child. The Court of Appeals affirmed the convictions but modified the judgments

to delete a $250 fee from the court costs. Peraza v. State,__S.W.3d__, Nos. 01-

12-000690-CR, 01-12-00691-CR, 2014 Tex. App. LEXIS 13915 (Tex. App.

                                         1
–Houston [1st Dist.] 2014). This Court granted the Harris County District

Attorney’s petition for discretionary review on March 25, 2015, and ordered the

State’s brief to be filed on or before April 9, 2015. The State Prosecuting

Attorney’s motion to substitute counsel was granted on April 8, 2015.

                                ISSUE PRESENTED

       The First Court of Appeals erred by finding the DNA record fee is an
        unconstitutional tax that violates the separation of powers clause.

                            STATEMENT OF FACTS

      Appellant was indicted for two counts of aggravated sexual assault of a child.

CR: 2. He pled guilty without an agreed recommendation, and the trial court

sentenced him to 25 years in each case. CR: 75. The court costs assessed against him

included a $250 “DNA record fee.” CR: 78. Appellant challenged this fee in his

motion for new trial and motion in arrest of judgment. CR: 94, 120. These motions

were denied without a hearing. CR: 117, 119, 143, 145.

                       SUMMARY OF THE ARGUMENT

      TEX. CODE CRIM. PROC. art. 102.020, a presumptively constitutional statute,

imposes a fee for those defendants who are required to submit a DNA specimen. It

pays, in part, for the costs associated with collecting, analyzing, and storing DNA

samples, as well as other costs reasonably related to the administration of the criminal

justice system. A fee need not be “necessary or incidental to a criminal trial” to be
                                           2
constitutional. The DNA fee is not a “tax,” but even if it could be properly

categorized as such, the statute requiring its imposition does not violate the separation

of powers doctrine and should be upheld.

                                    ARGUMENT

      The First Court of Appeals held that TEX. CODE CRIM. PROC. art. 102.020,

“Costs related to DNA testing,” authorizes an unconstitutional tax because the costs

it imposes are not “necessary or incidental to a criminal trial.” Peraza, 2014 Tex.

App. LEXIS 13915, at *33-34, citing Ex parte Carson, 159 S.W.2d 126 (Tex. Crim.

App. 1942). The court did not explain what part of the Constitution it believes the

statute violates or how it imposes a “tax.”1

The Statutes

      Article 102.020(a)(1) authorizes a $250 court cost for persons convicted of an

offense listed in TEX. GOV’T CODE § 411.1471(a)(1), which includes aggravated

sexual assault. Of the total funds collected by the comptroller, 35% is deposited in

the state treasury to the credit of the state highway fund and 65% is deposited in the

general revenue fund to the credit of the criminal justice planning account. TEX.



      1
       Appellant’s brief in the court of appeals argued that a court cost that is not
necessary or incidental to a criminal trial is a “tax” and, because “tax collection” is
an executive function, it violates the separation of powers clause to have courts
perform that function. Appellant’s brief at 14-17.
                                           3
CODE CRIM. PROC. art. 102.020(h).

      State Highway Fund

      TEX. GOV’T CODE § 411.145(c) provides: “[M]oney deposited to the state

highway fund under this section and under Articles 42.12 and 102.020(h), Code of

Criminal Procedure, may be used only to defray the cost of administering this

subchapter2 and Section 411.0205.”3

          “The principal purpose of the DNA database is to assist a federal, state, or

local criminal justice agency in the investigation or prosecution of sex-related

offenses or other offenses in which biological evidence is recovered.” TEX. GOV’T

CODE § 411.143(a). “In criminal cases, the purposes of the DNA database are only

for use in the investigation of an offense, the exclusion or identification of suspects

or offenders, and the prosecution or defense of the case.” TEX. GOV’T CODE §


      2
        “This subchapter” is subchapter G of section 411, entitled “DNA database
system.” The DNA database is “a computerized database that serves as the central
depository in the state for DNA records.” TEX. GOV’T CODE § 411.142. A
defendant who is indicted or waives indictment for, inter alia, aggravated sexual
assault is required to “provide to a law enforcement agency one or more specimens
for the purpose of creating a DNA record.” TEX. GOV’T CODE § 411.1471. Law
enforcement agencies taking a specimen must preserve it, make a record of its
collection, and either test it or send it to DPS for testing. Id. Pursuant to this
provision, the trial court ordered Appellant to provide a specimen of his DNA.
CR:11.

      See TEX. GOV’T CODE § 411.0205, Crime Laboratory Accreditation
      3


Process.
                                           4
411.143(b).

      Criminal Justice Planning Account

      The criminal justice planning fund is administered by the criminal justice

division of the governor’s office. TEX. GOV’T CODE § 772.006(a)(2).4 Its funds are

to be distributed in accordance with TEX. CODE CRIM. PROC. art. 102.056, which

provides:

      (a) The legislature shall determine and appropriate the necessary amount
      from the criminal justice planning fund to the criminal justice division
      of the governor’s office for expenditure for state and local criminal
      justice projects and for costs of administering the funds for the projects.
      The criminal justice division shall allocate not less than 20 percent of
      these funds to juvenile justice programs. The distribution of the funds
      to local units of government shall be in an amount equal at least to the
      same percentage as local expenditures for criminal justice activities are
      to total state and local expenditures for criminal justice activities for the
      preceding state fiscal year. Funds shall be allocated among combinations
      of local units of government taking into consideration the population of
      the combination of local units of government as compared to the
      population of the state and the incidence of crime in the jurisdiction of
      the combination of local units of government as compared to the
      incidence of crime in the state. All funds collected are subject to audit
      by the comptroller of public accounts. All funds expended are subject to

      4
        According to the governor’s office website, grants awarded from the
criminal justice planning fund “support a wide range of projects designed to
reduce crime and improve the criminal juvenile justice systems.
http://gov.texas.gov/financial-services/grants/. See also
http://gov.texas.gov/files/cjd/AppendixB_CJD_Guide_to_Grants_v6.pdf (p. B-11.
Listing “eligible activities” for grant recipients of the criminal justice planning
fund in three categories: juvenile justice, victim services, and criminal justice).


                                           5
audit by the State Auditor. All funds collected or expended are subject
to audit by the governor’s division of planning coordination.

(b) The legislature may appropriate any unobligated balance of the
criminal justice planning fund for any court-related purpose.

(c) Notwithstanding any other provision of this article, the criminal
justice division shall allocate to a local unit of government or
combination of local units of government located in an impacted region
occurring as the result of the establishment of a significant new naval
military facility an amount that exceeds by 10 percent the amount it
would otherwise receive under this article.

(d) In this article, “significant new naval military facility” and “impacted
region” have the meanings assigned by Section 4, Article 1, National
Defense Impacted Region Assistance Act of 1985.5

(e) The legislature shall determine and appropriate the necessary amount
from the criminal justice planning account to the criminal justice
division of the governor’s office for reimbursement in the form of grants
to the Department of Public Safety of the State of Texas and other law
enforcement agencies for expenses incurred in performing duties
imposed on those agencies under Section 411.1471 or Subchapter B-1,
Chapter 420, Government Code, as applicable. On the first day after the
end of a calendar quarter, a law enforcement agency incurring expenses
described by this subsection in the previous calendar quarter shall send
a certified statement of the costs incurred to the criminal justice division.
The criminal justice division through a grant shall reimburse the law
enforcement agency for the costs not later than the 30th day after the
date the certified statement is received. If the criminal justice division
does not reimburse the law enforcement agency before the 90th day after
the date the certified statement is received, the agency is not required to
perform duties imposed under Section 411.1471 or Subchapter B-1,
Chapter 420, Government Code, as applicable, until the agency has been
compensated for all costs for which the agency has submitted a certified


5
    See TEX. GOV’T CODE § 2309.001.
                                     6
      statement under this subsection.

Analysis of the Statutes

      The court of appeals first noted that the state highway fund can be used by the

Texas Department of Transportation for roads or other non-criminal-law purposes.

Peraza, 2014 Tex. App. LEXIS 13915, at *13-18, citing TEX. TRANSP. CODE §

222.003(a).6 Therefore, it held that the portion of Article 102.020 costs that are

credited to the State highway fund are not incidental or necessary to a criminal trial.

Id.

      TEX. GOV’T CODE § 411.145(c) provides: “[M]oney deposited to the state

highway fund under this section and under Articles 42.12 and 102.020(h), Code of

Criminal Procedure, may be used only to defray the cost of administering [the DNA

database and Crime Laboratory Accreditation].” Although the Transportation Code

provision is inconsistent with section 411.145, in the event of an irrevocable conflict

between statutes, the specific controls over the general. See State v. Vasilas, 253

S.W.3d 268, 271-72 (Tex. Crim. App. 2008) (discussing doctrine of in pari materia).

The two provisions at issue here can be reconciled to mean:




      “Money in the state highway fund that is not required to be spent for public
      6


roadways by the Texas Constitution or federal law may be used for any function
performed by the [D]epartment [of Transportation].” TEX. TRANSP. CODE §
222.003(a).
                                           7
      Money in the state highway fund may be used for any function
      performed by the Department of Transportation if it:
      1) is not required to be spent for public roadways by the Texas
      Constitution or federal law, or
      2) has not been deposited under TEX. GOV’T CODE § 411.145, TEX.
      CODE CRIM. PROC. art. 42.12, or TEX. CODE CRIM. PROC. art.
      102.020(h).

      If these provisions cannot be reconciled in this manner, the language in the

Government Code limiting spending to a particular use controls over the more general

language in the Transportation Code that permits spending for any use.

       The court of appeals acknowledged that section 411.145(c) permits funds

collected under article 102.020(h) to be used only to defray the cost of administering

the DNA database system. However, it observed that the DNA database is not limited

to criminal law uses and has a wide variety of non-criminal-law purposes, such as

“assisting in the recovery or identification of human remains from a disaster or for

humanitarian purposes.” Peraza, 2014 Tex. App. LEXIS 13915, at *20. This

assumes, however, that state highway funds are expended when a police department

uses the DNA database to assist in the recovery of human remains. The court of

appeals’ determination that article 102.020 funds are used for non-criminal law

purposes is speculative.

       The court of appeals also suggested that costs associated with the DNA

database, such as auditing, improving reporting and accuracy, and providing training


                                          8
for collection of DNA samples, are not “necessary [or] incidental to the trial of a

criminal case.” Id. at *20-21 n7. The legislature has deemed it necessary for

defendants charged with certain offenses to provide samples of their DNA for

analysis, storage, and inclusion in the DNA database. Unfortunately, administrative

costs are a fact of life. Maintaining the DNA database is a necessary expenditure in

the prosecution of a person convicted of an offense for which a DNA specimen is

required.

      Next, the court of appeals held that the criminal justice fund, which receives

65% of article 102.020 funding, is not required to pay only for services necessarily

or incidentally related to criminal trials. Id. at *29. TEX. CODE CRIM. PROC. art.

102.056(a) requires that funds be distributed in accordance with “local expenditures

for criminal justice activities...for the preceding state fiscal year” based on population

and incidence of crime. This demonstrates an intention by the legislature that the

money that flows out of a county via court costs and into the criminal justice planning

fund go back to counties in an amount that is proportional to the incidence of crime

in that county.7 Similarly, subsection (e) reimburses the Department of Public Safety



      7
       The exception to that provision is jurisdictions in which a “significant new
naval military facility” is located. Those counties receive a 10% higher
appropriation than the prescribed formula. TEX. CODE CRIM. PROC. art.
102.056(c).
                                            9
for its actual expenditures for DNA storage and testing. Appellant did not argue, and

the court of appeals did not hold, that the statutes providing for the distribution of

article 102.020 funds are invalid. Those provisions mandate uses for expenses

incurred by the criminal justice system.

      The court of appeals did point to past grant recipients of the criminal justice

planning fund that it believed were unworthy of court cost financing. Id. at *29. The

court of appeals’ complaint is directed, not at the statute, but at the grant award

practices of the criminal justice division of the Governor’s Office. If Appellant

believes the funds are being misspent for non-criminal law purposes, he may wish to

request an audit from the state auditor or the governor’s division of planning

coordination, in accordance with TEX. CODE CRIM. PROC. art. 102.056(a).

Ex parte Carson

   Ex parte Carson, on which Appellant and the court of appeals rely heavily, stated

that a $1 county law library fee was “improper,” not a “legitimate charge on the

litigants,” and too “remote.” 159 S.W.2d at 127. It hypothesized that if the library

fee was proper, fees for courthouses, police cars, roads “education of such attorneys

and judges and even the endowments of the schools which they attend” would be

proper. Id. The Court’s disdain for this fee, however, does not appear to be an actual

holding. The Court did not point to any statutory or constitutional provision that


                                           10
requires costs to be necessary or incidental. Furthermore, that language is dicta. Ex

parte Carson found the statute unconstitutional on two bases. Because the fee was

imposed only on litigants in certain counties, it was a “local or special law,” in

violation of TEX. CONST. Art. III, § 56, and it violated equal protection and due

course of law. 159 S.W.2d at 127-30. The necessary or incidental language from Ex

parte Carson is baseless. This Court should disavow it.

      The Court need not replace the language of Ex parte Carson with some other

test to evaluate the propriety of costs or fees. TEX. GOV’T CODE § 102.021(1), which

references several court costs, including the one in article 102.020, “was intended by

the Legislature as a non-punitive recoupment 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). But costs need not be limited to compensating the

judiciary. In State v. Claborn, 870 P.2d 169 (Okla. Crim. App. 1994), the Oklahoma

Court of Criminal Appeals reasoned that a court cost need only be “reasonably related

to the costs of administering the criminal justice system.” Id. at 171. If the Court

imposes a test on court costs, it should adopt the language from Claborn.

      Ex parte Carson is essential to Appellant’s argument, because without its

“incidental or necessary to a criminal trial” test, the cost in this case is not a “tax,”

courts do not become “tax collectors,” and the statute creating this scheme does not


                                           11
violate the separation of powers clause. See O’Bannon v. State, 435 S.W.3d 378, 381

(Tex. App.– Houston [14th Dist.] 2014), and Salinas v. State, 426 S.W.3d 318 (Tex.

App.—Houston [14th Dist.] 2014, pet. granted) (PD-0419-14) (speculating on

whether Ex parte Carson could “bear the weight” of Appellant’s separation of powers

argument).

Separation of Powers

       “[A]nalysis of a statute’s constitutionality must begin with the presumption that

the statute is valid and that the Legislature did not act arbitrarily or unreasonably in

enacting it.” State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013).

       Appellant’s argument is highly tenuous and mostly semantic. Although Ex

parte Carson used the word “tax” when it held, “[T]he tax imposed by the bill is not

and cannot be logically considered a proper item of cost in litigation, particularly in

criminal cases,” 159 S.W.3d at 127, it did hold that an “improper” cost becomes a

tax.

       In LeCroy v. Hanlon, 713 S.W.2d 335, 342-43 (Tex. 1986), the Texas Supreme

Court used the term ‘tax” to describe a filing fee that violated the open courts

provision of the Texas Constitution. It called the filing fee “a general revenue tax on

the right to litigate” because the fees paid for statewide programs other than the




                                           12
judiciary. Id. at 342.8 LeCroy’s analysis did not address separation of powers. It was

based on the principle that a fee that did not go to the courts denied access to the

courts. So whether it was a cost, a fee, or a tax was irrelevant.

           Courts in other jurisdictions have also held that fees unrelated to the court

system are taxes. See, e.g., Crocker v. Finley, 459 N.E.2d 1346, 1350 (Ill. 1984)

(filing fee was unrelated to litigation and its purpose was to provide general revenue).

But in Claborn, the Oklahoma Court of Criminal Appeals addressed the viability of

a prior opinion that held a court cost was a tax if it did not “bear a true relation” to the

expenses of the prosecution at hand. 870 P.2d at 171. It noted that this holding was

unsupported by statutes or case law, and other jurisdictions have “adopted a more

relaxed standard.” Id.

       Even if the DNA testing cost could somehow be deemed a tax, courts do not

become “tax collectors” by imposing a legislatively required fee and sending the

funds to the comptroller. If that were the case, every business owner who charges

sales taxes and forwards them to the comptroller is also a “tax collector.”

       The separation of powers provision is violated when “one branch of


       The dissent, however, noted that “dollars are fungible” and “as long as the
       8


State pays more in financing the judiciary than the courts receive in user fees, the
court’s logic is flawed.” 713 S.W. 2d at 345-46 (Gonzales, J., dissenting).
Regardless, the costs in this case are not taxes even though they are deposited into
the general revenue fund or the state treasury. They are credited to specific funds
and are not for general use.
                                            13
government assumes, or is delegated, to whatever degree, a power that is more

‘properly attached’ to another branch.” State v. Rhine, 297 S.W.3d 301, 305 (Tex.

Crim. App. 2009). Not all such delegations violate the constitution; it is essentially

a matter of degree. Id. at 306.

      Rhine addressed a delegation of authority from the legislature to an executive

branch agency. It held, “[I]f the legislature has provided sufficient standards to guide

the agency’s discretion and the delegated power is not legislative, that agency has not

been granted a power that is more properly attached to the legislature and the

delegation is not an unconstitutional violation of separation of powers.” Id. at 306-

07. Here, the only discretion the trial court is given in assessing the DNA cost is that

it may waive the cost if the defendant is indigent. TEX. CODE CRIM. PROC. art.

102.020(j). The DNA court cost statute is not unconstitutional.9

Conclusion

      “It is not unreasonable that one who stands convicted of ... an offense should

be made to share in the improvement of the agencies that society has had to employ

in defense against the very acts for which he has been convicted.” State v. Young,

      9
        In the event this Court deems part of the statute constitutional and part
unconstitutional, it should sever the unconstitutional portion and uphold the
remainder. See TEX. GOV’T CODE § 311.032; Tussey v. State, 494 S.W.2d 866,
870 (Tex. Crim. App. 1973) (when part of a statute is unconstitutional, the
remainder must be upheld if it is complete in itself and capable of fulfilling
legislative intent).
                                          14
238 So.2d 589, 590 (Fla. 1970). This is easily done at the local level with fees for:

jury trials;10 execution of search warrants;11 and commitment or release.12 But many

tools of law enforcement are established and maintained at the state level. It would

be nearly impossible to determine Appellant’s share of these statewide tools.

Appellant cannot be realistically assessed his part of the costs of crime lab

accreditation, his portion of the DNA database expenses, and his share of the criminal

justice planning fund grants. Like consolidated court costs,13 article 102.020 provides

a mechanism whereby costs and fees are collected at the county level, forwarded to

the comptroller, and distributed within the criminal justice system.

      As the Oklahoma Court of Criminal Appeals noted, many jurisdictions have

“adopt[ed] a more relaxed standard” when evaluating the connection between costs

and fees and the programs they fund. Claborn, 870 P.2d at 171. The costs imposed

by article 102.020 do not solely fund the judiciary, but they compensate the State for

expenses it incurs administering the criminal justice system. Having been convicted

of a crime, Appellant must share in those costs.


      10
           TEX. CODE CRIM. PROC. art. 102.004
      11
           TEX. CODE CRIM. PROC. art. 102.011(a)(2)
      12
           TEX. CODE CRIM. PROC. art. 102.011(a)(6)
      13
        TEX. LOC. GOV’T CODE. § 133.102. The constitutionality of consolidated
court costs is pending in Salinas, PD-0419-14.
                                          15
                            PRAYER FOR RELIEF

      WHEREFORE, the State of Texas prays that the Court of Criminal Appeals set

this case for submission, reverse the court of appeals’ judgment, and reinstate the

“DNA Record Fee.”



                                       Respectfully submitted,


                                       /s/ Lisa C. McMinn
                                       LISA C. McMINN
                                       State Prosecuting Attorney
                                       Bar I.D. No.13803300

                                       P.O. Box 13046
                                       Austin, Texas 78711
                                       information@spa.texas.gov
                                       512/463-1660 (Telephone)
                                       512/463-5724 (Fax)




                                        16
                      CERTIFICATE OF COMPLIANCE

      The undersigned certifies that according to the WordPerfect word count tool

this document contains 3,507 words.




                                              /s/ Lisa C. McMinn
                                              LISA C. McMINN
                                              State Prosecuting Attorney


                         CERTIFICATE OF SERVICE

      The undersigned certifies that on this 9th day of April, 2015, the State’s Brief

on the Merits was served electronically on:


Jessica Akins
Assistant District Attorney
1201 Franklin, 13th Floor
Houston, Texas 77002
akins_jessica@dao.hctx.net

Jani Maselli Wood
Assistant Public Defender
1201 Franklin St, 13th Floor
Houston, Texas 77002
jani.maselli@pdo.hctx.net



                                              /s/ Lisa C. McMinn
                                              LISA C. McMINN
                                              State Prosecuting Attorney

                                         17
