Opinion issued December 30, 2014




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-12-00690-CR
                              NO. 01-12-00691-CR
                           ———————————
                         OSMIN PERAZA, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 184th District Court
                           Harris County, Texas
                       Trial Court Case No. 1305438


                 CONCURRING & DISSENTING OPINION

      I join with the Court’s conclusions that the trial court did not abuse its

discretion in denying Appellant’s motion to withdraw his guilty pleas and that the

judgment should be modified, striking the unsupported “Sheriff’s Fee” assessed in
both cases. However, I disagree with the Court’s conclusion that the “DNA Record

Fee”1 is unconstitutional.

                     Facial Challenge to the DNA Record Fee

      Appellant argues that the statute authorizing collection of the fee is facially

unconstitutional under the separation-of-powers clause of the Texas Constitution.

TEX. CONST. art. II, § 1. Under that provision, a statute authorizing a court to

collect costs “neither necessary nor incidental to the trial of a criminal case” is not

valid. Ex parte Carson, 159 S.W.2d 126, 127 (Tex. Crim. App. 1942). Appellant

makes only a facial challenge, which requires him to “establish that no set of

circumstances exists under which the statute will be valid.” Santikos v. State, 836

S.W.2d 631, 633 (Tex. Crim. App. 1992); see also State v. Rosseau, 396 S.W.3d

550, 557 (Tex. Crim. App. 2013). In my view, Appellant has not shown that every

application of the statue violates the Carson standard. I would, therefore, affirm the

constitutionality of the fee.

A.    Reviewing a facial challenge

      When reviewing the constitutionality of a statute, “an appellate court must

presume that the statute is valid and that the legislature was neither unreasonable

nor arbitrary in enacting it.” Curry v. State, 186 S.W.3d 39, 42 (Tex. App.—


1
      See TEX. CODE CRIM. PROC. ANN. art. 102.020(a)(1) (West Supp. 2014) (“A
      person shall pay as a cost of court: (1) $250 on conviction of an offense listed in
      Section 411.1471(a)(1), Government Code”).
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Houston [1st Dist.] 2005, no pet.) (citing Ex parte Granviel, 561 S.W.2d 503, 511

(Tex. Crim. App. 1978)). A reviewing court must make every reasonable

presumption in favor of the statute’s constitutionality, unless the contrary is clearly

shown. Granviel, 561 S.W.2d at 511; see TEX. GOV’T CODE ANN. § 311.021 (West

2013) (noting that courts presume “compliance” with Texas and United States

Constitutions).

      To prevail, the party asserting a facial challenge “must establish that the

statute always operates unconstitutionally in all possible circumstances.” Rosseau,

396 S.W.3d at 557. When construing a statute, courts consider, among other

factors, the object sought to be attained by the legislation, laws on the same or

similar subjects, and the consequences of a particular construction. TEX. GOV’T

CODE ANN. § 311.023 (West 2013); see State v. Neesley, 239 S.W.3d 780, 784

(Tex. Crim. App. 2007); Nguyen v. State, 1 S.W.3d 694, 696–97 (Tex. Crim. App.

1999); see also Dowthitt v. State, 931 S.W.2d 244, 258 (Tex. Crim. App. 1996). If

a statute can be reasonably interpreted in a manner that does not offend the

constitution, a reviewing court must overrule a facial challenge to the statute’s

constitutionality. Curry, 186 S.W.3d at 42.

B.    Constitutionality of the DNA Record Fee benefiting the criminal-justice
      planning account

      Appellant argues that the DNA Record Fee unconstitutionally benefits the

criminal-justice planning account because the account is “too remote” to be

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considered a necessary or incidental cost of prosecuting a criminal case as required

under Carson. 159 S.W.2d at 127 (concluding that law library fee is remote and

unconstitutional). The Court agrees and cites several possible uses of money from

the criminal-justice planning account that are not related to the prosecution of a

criminal case. This approach is contrary to the standard that applies to claims that a

statute is facially unconstitutional because (1) it diminishes the challenger’s burden

to demonstrate that all—not some—applications of a statute are unconstitutional;

and (2) it runs afoul of precedent by favoring an unconstitutional reading over a

constitutional reading when construing statutes. I would construe the criminal-

justice planning account in its statutory context, situated among related statutes,

and conclude that Appellant has not demonstrated that all applications of the

statute are unconstitutional under the Carson standard.

      The Department of Public Safety (“DPS”) is required to collect a DNA

specimen from every person charged with certain categories of crimes, including

the crime involved here—aggravated sexual assault of a child under 14 years of

age—and to create a database cataloging the DNA specimens. TEX. GOV’T CODE

ANN. § 411.142 (West 2012) (directing DPS to maintain “computerized database

that serves as the central depository in the state for DNA records” that is

compatible with FBI’s national DNA identification index system); id. § 411.1471

(West 2012) (requiring collection of DNA specimens from people charged with or


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convicted of certain crimes, including aggravated sexual assault of child under 14

years of age); TEX. PENAL CODE ANN. § 22.021 (West Supp. 2014) (defining

aggravated sexual assault of child under 14 years of age). The criminal-justice

planning account allocates funds toward the collection and management of this

statewide criminal DNA database. See TEX. CODE CRIM. PROC. ANN. art. 102.056

(West Supp. 2014). Specifically, subsection (e) of article 102.056 directs the

Legislature to

      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.

Id.

      After looking outside the record to press releases and web sites, the Court

insists that “it cannot be assumed that DPS was automatically reimbursed by virtue

of the ‘DNA Record Fee’ for any expenses associated with the collection of

[Appellant’s] sample” and therefore the fee is an unconstitutional tax. This

conclusion does not account for the remainder of subsection (e), which continues:

      The criminal justice division through a grant [of money from the
      criminal-justice planning account] 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

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      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 statement under this subsection.

Id. Thus, the Court’s skepticism is unjustified given the wording of the statute

regarding reimbursement to fund the DNA project.

      The Court also insists that, even if DPS were reimbursed, the fee is

nevertheless unconstitutional because the criminal-justice planning account funds

other unrelated projects. Following this analysis, it would be enough for a party

bringing a facial constitutional challenge to show that some possible applications

of a statute are unconstitutional to justify invalidating every application of that

statute. That is the wrong standard. See Santikos, 836 S.W.2d at 633 (“[T]he

challenger must establish that no set of circumstances exists under which the

statute will be valid.”). While money from the criminal-justice planning account

apparently funds other programs in addition to the DNA database, Appellant

presents no evidence that the DNA Record Fee revenue does anything more than

reimburse   the   criminal-justice   planning     account   for   its   DNA-database

expenditures. Appellant appears to concede that reimbursement for these

expenditures would not violate Carson. I agree.

      I would hold that collecting the DNA Record Fee to benefit the criminal-

justice planning account is constitutional because these funds may be allocated to

the statewide criminal DNA database. Because such an allocation would be

                                         6
constitutional, Appellant fails to meet his burden of showing that every application

of the statute would result in constitutional injury. See Rosseau, 396 S.W.3d at 557

(noting moving party has burden of demonstrating statute’s unconstitutionality in

“all its possible applications.”). Accordingly, I would conclude that Appellant has

failed to demonstrate that the portion of the DNA Record Fee that benefits the

criminal-justice planning account is an unconstitutional tax.

C.    Constitutionality of the DNA Record Fee benefiting the state highway
      fund

      Likewise, Appellant has not demonstrated that the portion of the DNA

Record Fee that benefits the state highway fund is facially invalid. Pursuant to

article 102.020(h) of the Texas Code of Criminal Procedure, a portion of collected

DNA Record Fee revenue goes into the state highway fund. “[M]oney deposited to

the state highway fund under . . . 102.020(h), Code of Criminal Procedure, may be

used only to defray the cost of administering [subchapter G of chapter 411] and

Section 411.0205” of the Texas Government Code. TEX. GOV’T CODE ANN. §

411.145 (West 2012). Subchapter G governs the collection and management of

DNA samples, including Appellant’s, by DPS. See TEX. GOV’T CODE ANN. §

411.1471. Section 411.0205 regulates the accreditation of forensic crime

laboratories by DPS. TEX. GOV’T CODE ANN. § 411.0205 (West 2012). Thus, under

the Texas Government Code, the portion of the DNA Record Fee credited to the



                                          7
state highway fund is used to defray the costs associated with collecting, storing,

and testing DNA samples.

      The Court relies on section 222.002 of the Texas Transportation Code,

which states that money in the state highway fund not earmarked for public

roadways “may be used for any function performed by” the Texas Department of

Transportation (“TxDOT”). TEX. TRANSP. CODE ANN. § 222.002 (West 2011)

(emphasis added). TxDOT does not manage DNA-sample collection, management,

or testing. But TxDOT does not have exclusive access to the state highway fund.

Rather, the Transportation Code simply states a general rule that TxDOT “may”

access the fund. In contrast, the Government Code provides a specific rule that

money from the DNA Record Fee in the state highway fund “may be used only” by

DPS to defray the cost of administering the DNA database. TEX. GOV’T CODE

ANN. § 411.145 (emphasis added).

      When two statutes concern the same issue, the two should be read together

as one law, and an appellate court should attempt to harmonize any conflicting

provisions. Garrett v. State, 424 S.W.3d 624, 629 (Tex. App.—Houston [1st Dist.]

2013, pet. ref’d). If this is not possible, specific rules prevail over general

provisions, absent contrary legislative intent. Id.; Azeez v. State, 248 S.W.3d 182,

192 (Tex. Crim. App. 2008). In light of these principles, I would hold that the

statute specifically assigning DNA Record Fee revenue in the state highway fund


                                         8
to DPS for DNA sampling and crime-lab accreditation prevails over the general

statute relied upon by the Court.

      I would further hold that paying for DNA sampling and crime-lab

accreditation is a valid, constitutional use of the DNA Record Fee under Carson.

The trial court ordered Appellant to surrender a DNA sample as part of the

investigation of this case. The fee is therefore “necessary or incidental” to the trial

of Appellant’s case. See generally TEX. GOV’T CODE ANN. § 411.143(a) (West

2012) (“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.”).

      The Court concludes that the fee is an unconstitutional tax because the

revenue could possibly benefit other activities unrelated to the statewide DNA

database. In doing so, the Court again relies on web sites outside the record

because Appellant has provided no record evidence of how the funds are expended

and relieves Appellant of his burden when bringing a facial constitutional

challenge.

      Because Appellant has not demonstrated that every application of the

statutes assigning DNA Record Fee revenue to the state highway fund would be

unconstitutional, I would conclude that Appellant did not demonstrate that the




                                          9
portion of the DNA Record Fee that benefits the state highway fund is facially

unconstitutional.

                                    Conclusion

      Having determined that both portions of the DNA Record Fee—the 65% that

benefits the criminal-justice planning account and the 35% that benefits the state

highway fund—are sufficiently related to the prosecution of a criminal case, I

would conclude that Appellant failed to satisfy his burden of demonstrating that

the DNA Record Fee is facially unconstitutional. Accordingly, I respectfully

dissent.




                                              Harvey Brown
                                              Justice

Panel consists of Justices Jennings, Sharp, and Brown.

Justice Brown, concurring in part and dissenting in part.

Publish. TEX. R. APP. P. 47.2(b).




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