          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                           NO. PD-0100-15 & NO. PD-0101-15

                              OSMIN PERAZA, Appellant

                                            v.

                                THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE FIRST COURT OF APPEALS
                             HARRIS COUNTY

      R ICHARDSON, J., delivered the opinion for a unanimous Court.

                                     OPINION

      We granted the State’s Petition For Discretionary Review to address whether the First

Court of Appeals correctly determined that a cost of court “Related to DNA Testing,”

assessed pursuant to Texas Code of Criminal Procedure, Article 102.020, is an

unconstitutional tax that violates the separation of powers clause under the Texas
                                                                                       Peraza — 2


Constitution.1 We hold that Article 102.020 is not facially unconstitutional, and we therefore

reverse the decision of the First Court of Appeals.

                                         BACKGROUND

“Houston, We Have A Problem”

       Osmin Peraza was indicted in Harris County under separate cause numbers for two

instances of aggravated sexual assault of a child under the age of fourteen.2 After Peraza

pled guilty to the two offenses, the trial court assessed punishment in the amount of twenty-

five years for each offense, to run concurrently. Each judgment contained a court cost

assessment of $250 for a “DNA RECORD FEE.” This DNA record fee is required to be

assessed as a cost of court pursuant to Texas Code of Criminal Procedure, Article 102.020,

entitled “Costs Related to DNA Testing.” Article 102.020(a) provides that “[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.”3 Article 102.020(h) directs that “[t]he comptroller shall deposit 35

percent of the funds received under this article in the state treasury to the credit of the state




       1
         Our review is limited to the issue of whether the First Court of Appeals correctly held that
Article 102.020 is facially unconstitutional. An “as applied” constitutional challenge has not been
raised.
       2
           T EX. P ENAL C ODE A NN. § 22.021 (West Supp. 2014).
       3
           T EX. C ODE C RIM. P ROC. A NN. art. 102.020(a)(1) (West Supp. 2014).
                                                                                          Peraza — 3


highway fund and 65 percent of the funds received under this article to the credit of the

criminal justice planning account in the general revenue fund.” 4

        On appeal, Peraza challenged the assessment of this DNA record fee, claiming it was

an unconstitutional tax that violated the separation of powers clause of the Texas

Constitution.5 This argument was based on the language in Article 102.020(h) directing how

such court costs are to be disbursed. In other words, argued Peraza, by requiring the courts

to impose this “tax” for the benefit of the state highway fund and the criminal justice

planning account, the Legislature had reduced the courts to a tax-gathering agency of the

executive branch, which would be in violation of the separation of powers doctrine.

        The majority panel of Houston’s First Court of Appeals agreed with Peraza that the

statute was facially unconstitutional, and on December 30, 2014, the First Court issued its

opinion modifying both judgments to delete the $250 DNA record fee. Peraza v. State, 457

S.W.3d 134 (Tex. App.—Houston [1st Dist.] 2015). Relying on Ex Parte Carson, 159

       4
           T EX. C ODE C RIM. P ROC. A NN. art. 102.020(h) (West Supp. 2014).
       5
          § 1. Division of powers; three separate departments; exercise of power properly
attached to other departments. Sec. 1. The powers of the Government of the State of Texas shall
be divided into three distinct departments, each of which shall be confided to a separate body of
magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those
which are Judicial to another; and no person, or collection of persons, being of one of these
departments, shall exercise any power properly attached to either of the others, except in the instances
herein expressly permitted. T EX. C ONST. art. II, § 1(West 2007). The Texas separation of powers
provision is generally susceptible to violation in one of two ways: (1) when one branch of government
assumes or is delegated a power “more properly attached” to another branch, or (2) when one branch
unduly interferes with another branch so that the other branch cannot effectively exercise its
constitutionally assigned powers. Ex Parte Lo, 424 S.W.3d 10, 28 (Tex. Crim. App. 2013) (quoting
Ex parte Gill, 413 S.W.3d 425, 431-32 (Tex. Crim. App. 2013)).
                                                                                      Peraza — 4


S.W.2d 126 (Tex. Crim. 1942), the First Court held that the DNA Record Fee collected

pursuant to Article 102.020 was an unconstitutional tax, not a legitimate court cost, because

it was neither necessary nor incidental to the trial of a criminal case. Peraza, 457 S.W.3d at

149.

       Six months before the First Court of Appeals issued its opinion in Peraza, Houston’s

Fourteenth Court of Appeals issued a contrary unanimous panel opinion in O’Bannon v.

State, 435 S.W.3d 378 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Like Peraza,

Bennett Keith O’Bannon challenged the assessment of the court costs related to DNA testing,

pursuant to Article 102.020, as facially unconstitutional as a matter of law. O’Bannon

asserted the same argument raised by Peraza—that Article 102.020 impermissibly compels

the courts to collect a tax in violation of separation of powers principles. The Fourteenth

Court held that O’Bannon failed to satisfy his burden to show that Article 102.020 was

invalid in all possible applications and thus affirmed the trial court’s overruling of his facial

challenge to the statute. O’Bannon v. State, 435 S.W.3d at 382. Neither the State nor

O’Bannon filed a petition for discretionary review, so this Court did not have an opportunity

to examine the Fourteenth Court’s opinion.

       Because of these conflicting opinions decided by the two appellate courts in Houston,

we granted review to examine the facial constitutionality of Article 102.020.6


       6
          Another case out of the Fourteenth Court of Appeals involved the constitutionality of a
different court cost statute. In Salinas v. State, No. PD-0419-14, ___ S.W.3d ____ (Tex. Crim. App.
                                                                                           Peraza — 5


                                             ANALYSIS

“The Right Stuff”—The Constitutionality of Article 102.020

        A.      Arguments of the Parties

        Peraza argues that the First Court correctly held that Article 102.020 is facially

unconstitutional under the separation of powers clause of the Texas Constitution because the

“DNA RECORD FEE” is an impermissible tax collected by the judiciary, rather than a

legitimate court cost. This argument is based upon the assertion that revenue from this fee



July 1, 2015), appellant, Orlando Salinas, was convicted of causing injury to an elderly individual and
was assessed a sentence of five years in prison. After sentencing appellant, the trial court assessed a
consolidated court cost of $133 pursuant to Texas Local Government Code, Section 133.102.
Appellant argued on appeal that the consolidated court cost is a tax and therefore unconstitutional. The
Fourteenth Court held that Section 133.102 was not facially unconstitutional under the separation of
powers clause of the Texas Constitution. The Fourteenth Court’s conclusion was based upon two
reasons. First, Salinas “failed to satisfy his burden to show that the statute is invalid in all possible
applications because he has not established what the funds designated in Section 133.102(e) actually
do.” Salinas v. State, 426 S.W.3d 318, 327 (Tex.App.–Houston [14th Dist.] 2014). Second, Salinas
failed “to address severability principles when he argue[d] that the consolidated court cost amounts
to an impermissible ‘tax’ because it is ‘primarily used to fund non-court programs.’” Id. We granted
review in Salinas to determine whether the Fourteenth Court’s decision was erroneous in light of clear
precedent from this Court in reviewing facial challenges to the constitutionality of a statute. We
determined that the Fourteenth Court addressed Salinas’ arguments under an incorrect standard when
it required Salinas to also address severability principles and to establish what the funds designated
in Section 133.102 actually do. By requiring Salinas to show what the funds actually do, the
Fourteenth Court asked for something neither permitted nor required in a facial challenge. We
therefore reversed the judgment of the Fourteenth Court in Salinas and remanded that case so that the
court of appeals could address the facial constitutionality of Section 133.102 by examining whether
Salinas met his burden of proving that the statute cannot operate constitutionally under any
circumstance. The Fourteenth Court and the First Court approach the issue of the constitutionality of
court costs differently. As explained herein, neither appellate court has properly applied the correct
standard for reviewing facial constitutional challenges. The difference between our decision in this case
(to reverse and render) and our decision in Salinas (to reverse and remand), is that, in this case, the
First Court cited the correct standard, but incorrectly applied it. In Salinas, the Fourteenth Court
applied the wrong standard.
                                                                                           Peraza — 6


is dedicated to the state highway fund and criminal justice planning account, and thus used

for services that are neither necessary nor incidental to the trial of a criminal case.

        In support of his argument, Peraza relies, as the First Court did, on Ex Parte Carson,

159 S.W.2d 126 (Tex. Crim. 1942). In Carson, this Court considered whether it was

constitutionally permissible to impose a $1 fee as a court cost in all cases filed in counties

with more than eight district courts and more than three county courts, including county

courts at law.7 The revenue collected from the $1 fee was directed to the “County Law

Library Fund” and “available to be used for certain costs and expenses in acquiring,

maintaining and operating a law library available to the judges of the courts and to the

attorneys of litigants in the courts.” Id at 127. In Carson, this Court addressed “whether or


        7
          159 S.W.2d at 127. In 1941 Annotated Civil Statutes Article 1702a expressly directed civil
and criminal courts in certain counties to “tax” and collect a court cost of $1 to acquire, maintain, and
operate a county law library for the benefit of the judges and attorneys of litigants. Act of May 26,
1941, 47th Leg., R.S., ch. 317, § 1, sec. 1702a,1941 Tex. Gen. & Spec. Laws 521 (codified at T EX.
R EV. C IV. S TAT. art. 1702a), repealed by Act of Feb. 17, 1973, 48th Leg., R.S. ch. 192§ 4, 1943 Tex.
Gen & Spec. Laws 297. Although it has no bearing on our analysis of Carson, the Carson Court
reviewed the legislative evolution of Article 1702a in an attempt to decipher legislative intent, but the
Court was slightly mistaken in its review. See 159 S.W.2d at 128-29. The Carson Court quotes
Vernon’s Annotated Civil Statutes Article 1702a and parenthetically refers to the “Acts of the Forty
Second Legislature, 1931.” However, the quoted section did not become law until Article 1702a was
amended in 1941. In 1931 the Texas Legislature enacted House Bill 992, which authorized courts to
“tax” both civil and criminal litigants fifty cents in each case in counties with eight or more district
courts and four or more county courts for the purpose of establishing a “County Law Library.” Act of
May 28, 1931, 42nd Leg., R.S., ch. 236, 1931 Tex. Spec. Laws 457, 457-58. Article 1702a was
amended in 1941 to increase the court cost assessed to one dollar and to include more counties by
decreasing the number of county courts required to assess the court cost and include county courts of
law in the tally of county courts. Act of May 26, 1941, 47th Leg., R.S., ch. 317, § 1, sec. 1702a,1941
Tex. Gen. & Spec. Laws 521 (codified at T EX. R EV. C IV. S TAT. art. 1702a). This error in legislative
history has no substantive effect on our analysis of Carson’s reasoning, but rather merely exposes
another snag in the fabric of what some would wave as the banner of binding precedent.
                                                                                           Peraza — 7


not such charge can be legitimately considered to be proper ‘costs’ in the trial of a case,” and

concluded that “the tax imposed by the bill is not and cannot be logically considered a proper

item of cost in litigation, particularly in criminal cases.” Id. at 127. This Court cautioned that

to hold otherwise

        would lead into fields of expenditures which may as well include the cost of
        the court houses, the automobiles which officers use to apprehend criminals,
        and even the roads upon which they ride. If something so remote as a law
        library may be properly charged to the litigant on the theory that it better
        prepares the courts and the attorneys for the performance of their duties, it
        occurs to us that we might as logically tax an item of cost for the education of
        such attorneys and judges and even the endowments of the schools which they
        attend.

Id. The Court held that the bill authorizing the collection of the $1 cost was in violation of

Section 56 of Article 3 of the Texas Constitution.8 This Court further held in Carson that

such cost was unconstitutionally discriminatory because defendants were taxed differently

depending on the county in which they were convicted. Id. at 130. In the Court’s opinion on

the State’s Motion for Rehearing in Carson, this Court clarified “that the item of one dollar

taxed as costs for the Law Library Fund is neither necessary nor incidental to the trial of a




       8
          Id. at 127. Article 3, Section 56, of the Texas Constitution is entitled “Local and Special
Laws,” and at the time Carson was decided, precluded the Legislature from passing certain local and
special laws affecting counties, cities, and/or towns. The Carson opinion did not specify exactly how
the court cost in that case was in violation of that constitutional provision. According to Miller v. El
Paso County, 150 S.W.2d 1000, 1001 (Tex. 1941), “[t]he purpose of this constitutional inhibition
against the enactment of local or special laws is . . . to prevent the granting of special privileges and
to secure uniformity of law throughout the State as far as possible.” T EX. C ONST. art. III, § 56
interpretative commentary (West 2007).
                                                                                          Peraza — 8


criminal case, and that it is not a legitimate item to be so taxed.” Ex Parte Carson, 159

S.W.2d 126, 130 (Tex. Crim. App. March 11, 1942) (op. on motion for reh’g).

        In this case, the State urges us to reject the application of Ex Parte Carson, arguing

that the DNA record fee is not a tax and is thus constitutional on its face. In support of its

argument, the State cites to other jurisdictions that have found similar court cost statutes to

be constitutional.9

        B.      Reviewing a Facial Challenge to a Statute Mandating Court Costs10

                (1)     The Standard of Review

        The burden rests upon the individual who challenges a statute to establish its

unconstitutionality. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App.1978). When

reviewing the constitutionality of a statute, “we commence with the presumption that such

statute is valid and that the Legislature has not acted unreasonably or arbitrarily in enacting




       9
          See State v. Claborn, 870 P.2d 169, 171 (Okla. Crim. App. 1994) (holding that a court cost
need only be “reasonably related to the costs of administering the criminal justice system” in order to
not be considered a tax); Broyles v. State, 688 S.W.2d 290, 292 (Ark.1985) (holding that court costs
of $302.25 for DWI defendant, which included an additional $250 that was allocated in part to
programs relating to drunken driving, detoxification services and alcohol and drug abuse rehabilitation,
was constitutional since funds go to agencies society has created to keep the highways safe from drunk
drivers); State v. Johnson, 478 S.E.2d 16, 24 (N.C. App. 1996) (finding that a $100 fee imposed on
a criminal convicted of a drug charge to recompense the state for costs of drug analysis was not a
violation of the separation of powers doctrine because the charge is reasonably related to the costs of
administering the criminal justice system).
       10
          Justice Harvey Brown wrote a concurring and dissenting opinion in Peraza v. State. We
agree with portions of Justice Brown’s opinion addressing the constitutionality of the DNA Record
Fee and have incorporated much of his analysis into this opinion.
                                                                                     Peraza — 9


the statute.” Id. We must seek to interpret a statute such that its constitutionality is supported

and upheld. Luquis v. State, 72 S.W.3d 355, 365 n. 26 (Tex. Crim. App. 2002) (citing to

United States v. National Dairy Products, Inc., 372 U.S. 29, 32 (1963)). 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 T EX. G OV’T C ODE A NN.

§ 311.021 (West 2013) (stating that courts presume “compliance” with the Texas and United

States Constitutions).

       “A facial challenge is an attack on a statute itself as opposed to a particular

application.” City of Los Angeles v. Patel, No. 13–1175, 2015 U.S. Lexis 4065, at *9 (U.S.

June 22, 2015). In order to successfully mount a facial challenge to Article 102.020, Peraza

must establish that no set of circumstances exists under which that statute would be valid.

United States v. Salerno, 481 U.S. 739, 745 (1987); State v. Rosseau, 396 S.W.3d 550, 557

(Tex. Crim. App. 2013); Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992).

Under the proper facial-challenge analysis, only applications of a statute in which the statute

actually authorizes or prohibits conduct are considered. City of Los Angeles v. Patel, 2015

U.S. Lexis 4065, at *13 (U.S. June 22, 2015) (citing to Planned Parenthood of Southeastern

Pa. v. Casey, 505 U.S. 833 (1992)). Because courts are to “consider the statute only as it is

written, rather than how it [may operate] in practice,”11 it would be improper in this case to



       11
            State ex rel. Lykos, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011).
                                                                                  Peraza — 10


evaluate the facial constitutionality of Article 102.020 by theorizing where the funds

collected pursuant to Article 102.020(a)(1), and distributed pursuant to Article 102.020(h),

might be spent.

       Nevertheless, in examining whether Peraza has met his burden of establishing that it

is not possible for Article 102.020 to operate constitutionally under any circumstance, we still

have to look into what applications are statutorily provided for. We must determine whether

there are potential constitutional applications of Article 102.020 so that we can consider

whether Peraza has met his burden to show that there are no possible constitutional

applications of the statute. This point has been clarified most recently in City of Los Angeles

v. Patel, wherein the United States Supreme Court reviewed the facial constitutionality of

a statute authorizing a warrantless search. The Court explained that actual applications must

be considered when reviewing a facial challenge, noting that, “the proper focus of the

constitutional inquiry is searches that the law actually authorizes, not those for which it is

irrelevant.” Therefore, “actual applications” authorized by the statute must be examined. Id.

              (2)     Determining Whether A Court Cost May Be Constitutionally Valid

       In the 1942 case of Ex Parte Carson, this Court opined that a $1 library fund court

cost was invalid because it was neither “necessary nor incidental to the trial of a criminal

case.” 159 S.W.2d at 130 (op. on motion for reh’g). The Court could not accept the view that

the $1 fee could be taxed as a proper item simply because the money was to be used in the
                                                                                          Peraza — 11


establishment and maintenance of a law library. The Court held that such reasoning would

lead into “fields of expenditures” that were too remote. Id. The Court in Carson did not

invalidate the $1 law library fee because that fee had potentially unconstitutional uses. The

law library fee had only one use—to fund expenses associated with a law library. Its

illustration of other potentially invalid court costs12 was a reductio ad absurdum 13 argument

used to support its conclusion that the law library fee itself was invalid.

        In this case, the First Court of Appeals drew a parallel between the collection of a

DNA record fee pursuant to Article 102.020 and the collection of a law library fee in Carson.

The First Court held that, because Article 102.020 required the collection of court costs that

could be dedicated to uses that were not legitimate under Carson, such potentially invalid

uses rendered the statute unconstitutional. However, we cannot hold a statute requiring the

assessment of court costs facially unconstitutional simply because there might be a potential

and/or remote circumstance in which it may be applied unconstitutionally. Rather, as

discussed above, a statute is facially unconstitutional only if it “always operates

unconstitutionally in all possible circumstances.” State v. Rosseau, 396 S.W.3d at 556 (citing

to State ex rel. Lykos v. Fine, 330 S.W.3d at 908-09).



       12
           “If something so remote as a law library may be properly charged to the litigant on the theory
that it better prepares the courts and the attorneys for the performance of their duties, it occurs to us
that we might as logically tax an item of cost for the education of such attorneys and judges and even
the endowments of the schools which they attend.” Carson, 159 S.W.2d at 127.
       13
            Reductio ad absurdum is the technique of reducing an argument or hypothesis to absurdity.
                                                                                Peraza — 12


       To determine whether a statute always operates unconstitutionally in all possible

circumstances, we must look to see if there are potential applications of the statute that are

constitutionally valid. In this case, we must examine whether the allocation of court costs

assessed pursuant to Article 102.020 allows for constitutionally valid expenditures. To make

this determination, we first decide whether the rule in Carson still provides a workable

standard to determine whether a court cost is valid. Peraza argues that Carson supports the

holding that, since the court costs collected pursuant to Article 102.020 are allocated to

expenditures that might not be necessary or incidental to the trial of a criminal case, the

assessment of such court costs constitutes an unconstitutional tax. The State counters that

Carson should not be the standard and urges a less rigid test for determining whether a court

cost is valid, such as the one given by the court in State v. Claborn, 870 P.2d 169 (Okla.

Crim. App. 1994).

       In Claborn, the Oklahoma Court of Criminal Appeals addressed the specific issue of

whether a court cost must arise out of the defendant’s particular prosecution in order to be

legitimately assessed against that defendant. It held that it did not, overruling Ex parte

Coffelt, 228 P.2d 199, 201 (Okla. Crim. App. 1951) (finding that certain statutes requiring

a defendant’s payment of a $1 fee into a parole fund were unconstitutional because they did

not “bear a true relation to the expenses of [that particular] prosecution”). In Claborn the

Oklahoma Court adopted a “more relaxed standard,” holding that, “as long as a criminal
                                                                                  Peraza — 13


statutory assessment is reasonably related to the costs of administering the criminal justice

system, its imposition will not render the courts ‘tax gatherers’ in violation of the separation

of powers doctrine.” 870 P.2d at 171.

       Other jurisdictions have examined this issue.14 In Carter v. City of Norfolk, 147

S.E.2d 139 (Va. 1966), the Supreme Court of Virginia held that statutory court costs

collected to reimburse the State for expenses incurred by it as a result of prosecuting traffic

offenses have a “true and direct relationship” to those types of prosecutions, and are thus

constitutionally valid. Id. at 144. In State v. Young, 238 So.2d 589 (Fla. 1970), the Supreme

Court of Florida found that there must be a “direct relationship” between the type of offense

of which the defendant was convicted and the cost of court being assessed, noting that “[i]t

is not unreasonable that one who stands convicted of such 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.” Id. at 590. In State v. Lanclos, 980 So.2d 643 (La.

2008), the Louisiana Supreme Court agreed that a cost must be reasonably related to the

administration of justice. The court held that a $5.00 cost for committing an offense on the

Huey P. Long Bridge or the Lake Pontchartrain Causeway Bridge was an unconstitutional

tax levied improperly through the judicial system because it was not “sufficiently related to

the administration of justice.” Rather, the cost funded the salaries and equipment of the



       14
            See supra note 9.
                                                                                  Peraza — 14


Greater New Orleans Expressway Commission, and thus was “too far attenuated from the

‘administration of justice,’ to be considered a legitimate court cost.” 980 So.2d at 654. The

court held that “[e]very expense incurred by the police department in its role in enforcing the

laws of this state cannot be funded through ‘court costs.’” Rather, as long as the court costs

“fund functions of the judicial system,” and relate to “the administration of justice,” they are

legitimately assessed costs of court. Id.

       In Weir v. State, 278 S.W.3d 364 (Tex. Crim. App. 2009), we addressed the issue of

whether court costs could be included in the trial court’s written judgment if they were not

included in the oral pronouncement of sentence. We held that they could. Although we

noted that court costs were intended by the Legislature to be “recoupment of the costs of

judicial resources expended in connection with the trial of the case,” 15 we did not intend for

this statement to be dispositive of the issue before us today. The constitutional validity of

the court costs in Weir was not at issue.

       We continue to hold, as we did in Weir, that court costs should be related to the

recoupment of costs of judicial resources. However, we must revisit whether Carson’s

requirement—that such costs be “necessary” and “incidental” to the trial of a criminal

case—is still a proper standard for assessing whether a court cost assessed against a criminal

defendant is constitutionally valid. The terms “necessary” and “incidental” are commonly


       15
            Id. at 366.
                                                                                        Peraza — 15


used and easily understood words; however, we find that they are too limiting to continue to

be the litmus test. In the 73 years since Carson was decided, the prosecution of criminal

cases and our criminal justice system have greatly evolved. Our legislature has developed

statutorily prescribed court costs with the intention of reimbursing the judicial system for

costs incurred in the administration of the criminal justice system. To require such costs to

be “necessary” or “incidental” to the trial of a criminal case in order to be constitutionally

valid ignores the legitimacy of costs that, although not necessary to, or an incidental expense

of, the actual trial of a criminal case, may nevertheless be directly related to the recoupment

of costs of judicial resources expended in connection with the prosecution of criminal cases

within our criminal justice system.

       We therefore reject Carson’s requirement that, in order to pass constitutional muster,

the statutorily prescribed court cost must be “necessary” or “incidental” to the “trial of a

criminal case.” We hold that, if the statute under which court costs are assessed (or an

interconnected statute) provides for an allocation of such court costs to be expended for

legitimate criminal justice purposes,16 then the statute allows for a constitutional application

that will not render the courts tax gatherers in violation of the separation of powers clause.

       16
          We adopt this phrasing from McAfee v. State, 2015 WL 2235122 (Tex. App.—Houston [1st
Dist.] 2015), a case that was recently decided by the First Court of Appeals in Houston. The McAfee
panel included Justice Harvey Brown, who wrote the dissenting opinion in this case. McAfee cites to
O’Bannon v. State, 435 S.W.3d at 382, in support of its conclusion that the appellant failed to satisfy
his burden to show that the statute authorizing court costs for a “crime stopper’s fee” was facially
unconstitutional.
                                                                                         Peraza — 16

A criminal justice purpose is one that relates to the administration of our criminal justice

system. Whether a criminal justice purpose is “legitimate” is a question to be answered on

a statute-by-statute/case-by-case basis.17

        C.      The Sixty-Five Percent Deposited To The Credit of The Criminal Justice
                Planning Account

        The First Court found that the DNA Record Fee unconstitutionally benefits the

criminal justice planning account because the account is too remote to be considered a

necessary or incidental cost of prosecuting a criminal case.18 The First Court cited several

possible uses of money from the criminal justice planning account that are not related to the

prosecution of a criminal case.

        However, as we have discussed, in focusing on where the funds collected under

Article 102.020(a)(1) might actually go, the First Court incorrectly decided that Article

102.020 was unconstitutional because Peraza demonstrated the potential for unconstitutional




       17
          Our decision today addresses the constitutionality of a statute assessing court costs against
a criminal defendant. In State v. Lanclos, 980 So.2d 643 (La. 2008), the court acknowledged a broad
standard that could apply to both civil and criminal cases by requiring that court costs assessed “fund
functions of the judicial system,” and relate to “the administration of justice.” However, the Louisiana
Supreme Court decides both civil and criminal cases. We do not. Although, in general, we agree that
court costs should relate to the recoupment of judicial resources, our analysis of the facial challenge
in this case focuses on the constitutionality of assessing certain court costs against a criminal
defendant.
       18
          “[M]oney in the criminal justice planning fund is given to a vast number of diverse entities,
almost of [sic] none of which have any relation to the collection of a defendant’s DNA specimen or
a criminal trial.” Peraza, 457 S.W.3d at 149
                                                                                         Peraza — 17

applications. This, however, diminished his burden to establish that all applications of

Article 102.020 are unconstitutional. Moreover, the First Court’s holding runs afoul of

precedent by favoring an unconstitutional reading over a constitutional reading when

construing statutes. Luquis v. State, 72 S.W.3d at 365 n. 26.

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

every person charged with certain categories of crimes. The offense for which Peraza was

convicted (aggravated sexual assault of a child under 14 years of age) is included on that list

of crimes.19 The criminal justice planning account allocates funds toward the collection and

management of this statewide criminal DNA database. See T EX. C ODE C RIM. P ROC. A NN. art.

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

Id. Article 102.056(e) also provides:



       19
          T EX. G OV’T C ODE A NN. § 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); T EX. G OV’T C ODE A NN. § 411.1471 (West 2012)
(requiring collection of DNA specimens from people charged with or convicted of certain crimes,
including aggravated sexual assault of a child under 14 years of age); T EX. P ENAL C ODE A NN. § 22.021
(West Supp.2014) (defining aggravated sexual assault of a child under 14 years of age).
                                                                                          Peraza — 18

        [t]he 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 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.

        The First Court was not persuaded that these directives in Article 102.056(e) reflect

constitutionally permitted applications of Article 102.020. The First Court insisted that, even

if DPS were reimbursed for DNA-related expenses, the fee is nevertheless unconstitutional

because the criminal justice planning account funds other projects that are not related to

managing the statewide criminal DNA database. However, if we were to follow 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 in order to justify invalidating

every application of that statute. We do not follow this standard in reviewing a facial

challenge.20




       20
          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.”); State ex rel. Lykos, 330 S.W.3d 904, 908
(Tex. Crim. App. 2011) (holding that courts must “consider the statute only as it is written, rather than
how it operates in practice”); Karanev v. State, 281 S.W.3d 428, 441 (Tex. Crim. App. 2009)
(Cochran, J., concurring) (opining that a facial attack “can and must be made without reference to
evidence”).
                                                                                Peraza — 19

       Peraza must show that Article 102.020 does not allow for any constitutionally

permissible applications. Rosseau, 396 S.W.3d at 557. Because a portion of the DNA record

fee collected21 is deposited22 into the criminal justice planning account, and the criminal

justice planning account is statutorily required23 to reimburse monies spent collecting DNA

specimens from offenders charged with certain offenses (including aggravated sexual assault

of a child under 14),24 we hold that the statute allows for constitutionally permitted

applications. The statutory scheme allocating these resources to the criminal justice planning

account are required, via interconnected statutory provisions, to be expended for legitimate

criminal justice purposes. Therefore, they do not constitute a tax and thus do not violate the

separation of powers clause. Peraza has not established that Article 102.020 operates

unconstitutionally in all possible circumstances.

       D.        The Thirty-Five Percent Deposited To The Credit Of The State Highway Fund.

       Our analysis above also applies with regard to Peraza’s attack on the constitutionality

of the portion of Article 102.020(h) allowing for payment of the DNA Record Fee into the

State Highway Fund. According to Texas Government Code, Section 411.145, “money




       21
            T EX. C ODE C RIM. P ROC. art. 102.020(a)(1).
       22
            T EX. C ODE C RIM. P ROC. art. 102.020(h).
       23
            T EX. C ODE C RIM. P ROC. art. 102.056(e).
       24
            T EX. G OV’T. C ODE A NN. § 411.1471.
                                                                                 Peraza — 20

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. Subchapter G governs the DPS’s collection and

management of DNA samples, which would have included Peraza’s DNA specimen.25

Section 411.0205 regulates the accreditation of forensic crime laboratories by DPS.26 Thus,

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

highway fund is used to defray the costs associated with collecting, storing, and testing DNA

samples.

       Again, the First Court decided that, since there was the possibility that the portion of

the DNA Record Fee dedicated to the State Highway Fund might not be applied to a DNA-

related expense, Article 102.020 was facially unconstitutional. Specifically, section 222.002

of the Texas Transportation Code provides 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”).27           TxDOT does not manage DNA sample

collection, management, or testing, so some of the money might end up funding non-DNA

related expenses. The First Court decided that, since TxDOT theoretically has access to the



       25
            T EX. G OV’T C ODE A NN. § 411.1471.
       26
            T EX. G OV’T C ODE A NN. § 411.0205.
       27
            T EX. T RANSP. C ODE A NN. § 222.002.
                                                                                          Peraza — 21

funds collected pursuant to Article 102.020, it is possible that the funds could operate as an

unconstitutional tax, and thus the statute is facially unconstitutional. In other words, the First

Court concluded that, the DNA record fee is an unconstitutional tax because the revenue

could possibly benefit other activities unrelated to the statewide DNA database. However,

for the reasons explained herein, this analysis is faulty.

        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. It is

the more specific provision in the Government Code that requires the money from the DNA

Record Fee that is deposited in the state highway fund to “be used only” by DPS to defray

the cost of administering the DNA database.28 The doctrine of in pari materia dictates that

the statute specifically assigning DNA Record Fee revenue deposited into the state highway

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

relied upon by the First Court to support its claim that unconstitutional uses of the money are

possible.29 These statutes, read together, allow for—in fact, mandate—constitutionally valid


        28
          T EX. G OV’T C ODE A NN. § 411.145; See also, T EX. G OV’T C ODE A NN. § 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.”).
        29
          When one statute deals with a subject in comprehensive terms, and another deals with a
portion of the same subject in a more definite way, the specific rule prevails over the more general
provision, absent contrary legislative intent. Azeez v. State, 248 S.W.3d 182, 192 (Tex. Crim. App.
2008). When two statutes are in pari materia, the doctrine requires that the statutes be “taken, read,
and construed together, each enactment in reference to the other, as though they were parts of one and
                                                                                           Peraza — 22

uses of the DNA record fee collected under Article 102.020. The statutory scheme allocating

these resources to the state highway fund are required, via interconnected statutory

provisions, to be expended for legitimate criminal justice purposes. Therefore, they do not

constitute a tax and thus do not violate the separation of powers clause.

        Because Peraza has not demonstrated that every application of the statute assigning

DNA Record Fee revenue to the state highway fund would be unconstitutional, he has not

met his burden to show that the portion of the DNA Record Fee that benefits the state

highway fund is facially unconstitutional.

                                           CONCLUSION

        The interconnected statutory provisions providing for the allocation of the funds

collected as court costs pursuant to Article 102.020 allow for such funds to be expended for

legitimate criminal justice purposes. We hold that Peraza has not met his burden of

establishing that it is not possible for Article 102.020 to operate constitutionally under any

circumstance. We therefore reverse the decision of the First Court of Appeals and reinstate

the court costs as set out in the trial court’s judgments.




the same law.” Jones v. State, 396 S.W.3d 558, 561-62 (Tex. Crim. App. 2013) (citing to Azeez, 248
S.W.3d at 192). If the statutes irreconcilably conflict, “the more detailed enactment . . . will prevail,
regardless of whether it was passed prior to or subsequently to the general statute, unless it appears that
the legislature intended to make the general act controlling.” Id.; see also, Ex parte Smith, 185 S.W.3d
887, 892 (Tex. Crim. App. 2006); T EX. G OV’T C ODE A NN. § 311.026(b) (West 2013) (“If the conflict
between the general provision and the special or local provision is irreconcilable, the special or local
provision prevails as an exception to the general provision . . . .”).
                          Peraza — 23

DELIVERED: July 1, 2015
PUBLISH
