                                                                                          0100-15
                                                                    COURT OF CRIMINAL APPEALS
                                                                                     AUSTIN, TEXAS
                                                                    Transmitted 4/23/2015 8:49:52 AM
April 23, 2015
                                                                      Accepted 4/23/2015 9:11:11 AM
                                                                                      ABEL ACOSTA
                                                                                              CLERK
                         N OS. PD-0100-15 & PD-0101-15

                      IN THE C OURT OF C RIMINAL A PPEALS
                           O F THE S TATE OF T EXAS


                                 O SMIN P ERAZA,
                                    Appellant

                                        v.

                              T HE S TATE OF T EXAS
                                      Appellee



      On Petition for Discretionary Review from the First Court of Appeals in
                     Nos. 01-12-00690-CR & 01-12-00691-CR.
                       Cause Numbers 1305439 & 1305438
               from the 184th District Court of Harris County, Texas




                             B RIEF FOR A PPELLANT



     Oral Argument Was Granted                     A LEXANDER B UNIN
                                                   Chief Public Defender
                                                   Harris County, Texas

                                                   J ANI M ASELLI W OOD
                                                   Assistant Public Defender
                                                   Harris County, Texas
                                                   TBN. 00791195
                                                   1201 Franklin Street, 13th Floor
                                                   Houston, Texas 77002
                                                   Phone: (713) 368-0016
                                                   Fax: (713) 368-9278

                                                   Counsel for Appellant
                                                   Osmin Peraza
               IDENTITY OF P ARTIES AND C OUNSEL

APPELLANT:                         Osmin Peraza
                                   TDCJ-ID# 01798603
                                   Garza West
                                   4250 Highway 202
                                   Beeville, TX 78102

TRIAL PROSECUTOR:                  Ms. Sarah Bruchmiller
                                   Assistant District Attorney
                                   Harris County, Texas
                                   1201 Franklin, 6th Floor
                                   Houston, Texas 77002

APPELLATE PROSECUTOR               Lisa McMinn (substituted in at CCA)
                                   State Prosecuting Attorney
                                   P.O. Box 13046, Capitol Station
                                   Austin, TX 78711

                                   Jessica Akins (at COA level)
                                   Assistant District Attorney
                                   Harris County, Texas
                                   1201 Franklin, 6th Floor
                                   Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL:          Ms. Emily Detoto
                                   3000 Smith, Suite 4
                                   Houston, Texas 77006

PRESIDING JUDGE:                   Hon. Jan Krocker
                                   184th District Court
                                   Harris County, Texas
                                   1201 Franklin, 17th floor
                                   Houston, Texas 77002

DEFENSE COUNSEL ON APPEAL:         Jani Maselli Wood
                                   Harris County Ass’t Public Defender
                                   1201 Franklin, 13th Floor
                                   Houston, Texas 77002

                               i
                                             TABLE OF CONTENTS

Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities               .................................................... v

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

State’s Granted Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.        Three parts to the theory that the DNA record fee is an unconstitutional
          tax. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

          A.        Court costs must be necessary and incidental to the trial of
                    a criminal case to be legitimate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
          B.        An illegitimate court cost is actually a tax. . . . . . . . . . . . . . . . . . . . . . . . . 4
          C.        The separation of powers doctrine is violated when the
                    courts act as tax-gatherers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

II.       The State challenges every part of this court cost rationale. . . . . . . . . . . . . . . . . 5

          A.        The State believes the holding of Carson is merely dicta. . . . . . . . . . . . . . 5

                    1.         The State’s rationale fails because Carson is
                               binding precedent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
                    2.         In Carson, the test for a court cost was
                               expressed in both the original opinion and the
                               opinion on rehearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
                    3.         Carson is not essential to the determination of
                               this case. This Court has recently determined


                                                                   ii
                             a strikingly similar test for what a court cost is
                             in Weir v. State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
                  4.         Numerous cases would have to be disavowed
                             under the State’s theory that there is no test
                             for a court cost in Texas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
                  5.         The State’s opinion that this Court should
                             adopt a test from Oklahoma fails to consider
                             appropriate precedent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

        B.        An illegitimate court cost is a tax - according to the State’s
                  cited authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

        C.        A statute requiring the judicial branch to assess and collect
                  taxes violates the separation of powers. . . . . . . . . . . . . . . . . . . . . . . . . . 14

                  1.         Texas state courts should not act as tax-gatherers. . . . . . . . . . . . 14
                  2.         The power to collect taxes is an executive branch function. . . . 16

III..   The First Court of Appeals was correct under any test of a valid court
        cost. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

                  A.         Under the Carson test, the DNA record fee is
                             unconstitutional. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

                             1.         The State’s argument that the
                                        Court of Appeals determination
                                        is “speculative” fails. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

                  B.         Under the Weir test, the DNA record fee is
                             unconstitutional. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
                  C.         Under the Claborn test, the DNA record fee is
                             unconstitutional. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

IV.     Public Policy dictates that courts should collect only fees that support
        the courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

V.      Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23



                                                                iii
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26




                                                                  iv
                                       INDEX OF A UTHORITIES

Cases:

Armadillo Bail Bonds v. State,
     802 S.W.2d 237 (Tex. Crim. App. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 15

Armstrong v. State,
      340 S.W.3d 759 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 17

Boykin v. State,
       818 S.W.2d 782 (Tex. Crim. App.1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Buback v. Romney,
      156 N.W.2d 549 (Mich. 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Cantrell v. State,
       10-12-00269-CR, 2014 WL 2069279
        (Tex. App.—Waco May 15, 2014, no pet.)                    . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Coronel v. State,
       416 S.W.3d 550 (Tex. App.—Dallas 2013, pet. ref’d)                       . . . . . . . . . . . . . . . . . . . 10

Crocker v. Finley,
       99 Ill. 2d 444, 459 N.E.2d 1346 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Dallas County v. Sweitzer,
       881 S.W.2d 757 (Tex. App.—Dallas 1994, writ denied). . . . . . . . . . . . . . . . . . . 20

Davila v. State, 441 S.W.3d 751, 762
       (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . 10

Drisker v. State,
       03-13-00356-CR, 2014 WL 4063339
        (Tex. App.—Austin Aug. 14, 2014, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10




                                                       v
Edwards v. State,
      09-13-00360-CR, 2014 WL 1400747
       (Tex. App.—Beaumont Apr. 9, 2014, no pet.)                       . . . . . . . . . . . . . . . . . . . . . . . . 10

Ex parte Carson,
      143 Tex. Crim. 498, 159 S.W.2d 126 (1942) . . . . . . . . . . . . . . . . . . . . . . . passim

Ex Parte Whiteside,
      12 S.W.3d 819 (Tex. Crim. App.2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Forbes v. Texas Dep't of Public Safety,
       335 S.W.2d 439 (Tex. Civ. App. - Waco 1960, no writ) . . . . . . . . . . . . . . . . . . 15

Habib v. State,
      431 S.W.3d 737 (Tex. App.—Amarillo 2014, pet. ref’d) . . . . . . . . . . . . . . . . . . 10

Hill v. State,
        440 S.W.3d 670 (Tex. App.—Tyler 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . 11

Houston v. State,
      410 S.W.3d 475 (Tex. App.—Fort Worth 2013, no pet.) . . . . . . . . . . . . . . . . . 10

Johnson v. State,
       423 S.W.3d 385 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

LeCroy v. Hanlon,
      713 S.W.2d 335 (Tex. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Morrow v. Corbin,
      122 Tex. 553, 62 S.W.2d 641 (1933) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Peraza v. State,
       01-12-00690-CR, 2014 WL 7476214 (Tex. App.—Houston [1st Dist.]
       Dec. 30, 2014, pet. granted & pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . passim

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



                                                       vi
State v. Lanchos,
        980 So.2d 643 (La. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 14

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

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

Constitution, Statutes, and Other Resources

T EX. C ONST. ART. II, § 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

T EX. C ONST., A RT. IV, S EC. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

T EX. C ONST., A RT. IV, S EC. 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

T EX. C RIM. P ROC. A RT. 102.020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

T EX. C ODE C RIM. P ROC. A RT. 102.020(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

T EX. G OV'T C ODE A NN. § 772.006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 22

T EX. P ENAL C ODE § 22.021. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

T EX. T RANSP. C ODE A NN. § 222.001(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Black’s Law Dictionary (10th ed. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Carl Reynolds and Jeff Hall,
      2011-2012 Policy Paper Courts are not Revenue Centers . . . . . . . . . . . . . . . . . . . . 22

James W. McElhaney, Great Arguments,
      ABA Journal March 1, 2004. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7




                                                             vii
                               S TATEMENT OF THE C ASE

       This is an appeal from two separate cause numbers: 1305438 and 1305439. Mr.

Peraza pled guilty to two different felony offenses of aggravated sexual assault of a

child. (C.R.1 at 59; C.R.2 at 61). See T EX. P ENAL C ODE § 22.021. The Court took the

plea under advisement and a PSI hearing was held. (C.R.1 at 144; C.R.2 at 146). At the

PSI hearing, Mr. Peraza sought to withdraw his guilty plea, but the court denied the

request. (2 R.R. at 6-9). After the presentation of witnesses, the court sentenced Mr.

Peraza to 25 years imprisonment on each case to run consecutively. (C.R.1 at 73;

C.R.2 at 75; 2 R.R. at 39).

       Motions for new trial and motions in arrest of judgment were filed in both

cases on August 13, 2012. (C.R.1 at 91, 116; C.R.2 at 94, 120). On August 16, 2012,

the motions were presented and the court denied a hearing and denied the motions

that same day. (C.R.1 at 113-15, 139-41; C.R.2 at 117-19, 143-45). Notices of appeal

were timely filed. (C.R.1 at 78; C.R.2 at 80).

       The First Court of Appeals rejected Mr. Peraza’s claim that his pleas were

involuntary.    Peraza v. State, 01-12-00690-CR, 2014 WL 7476214, at *12 (Tex.

App.—Houston [1st Dist.] Dec. 30, 2014, pet. granted & pet. denied). This Court

denied Mr. Peraza’s petitions for discretionary review on March 25, 2015 on this issue.

The First Court of Appeals modified the judgments to delete the $250 DNA record

fee from the judgments. Peraza, 2014 WL 7476214 at *12. The State petitioned for

discretionary review and its petitions were granted on March 25, 2015 with an

expedited briefing schedule.


                                             1
                               S TATE’S G RANTED ISSUE

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

                                S TATEMENT OF F ACTS

       Mr. Peraza requested a bill of costs for both cases to review the assessed court

costs. (C.R.1 at 83; C.R.2 at 86). The cost bills were prepared and filed with the district

court subsequent to the judgment. (C.R.1 at 75; C.R.2 at 77). Mr. Peraza was charged

$250 for a DNA Record Fee in each case. The Code of Criminal Procedure provides

that a $250 fee can be collected upon conviction under T EX. C ODE C RIM. P ROC. A RT.

102.020(a)(1). The Code further provides that the $250 Fee labeled “Costs Related to

DNA Testing” will be distributed as follows:

       (d) Court costs under this article are collected in the same manner as
       other fines or costs. An officer collecting the costs shall keep separate
       records of the funds collected as costs under this article and shall deposit
       the funds in the county treasury.
       (e) The custodian of a county treasury shall:
               (1)   keep records of the amount of funds on deposit
                     collected under this article; and
               (2)   send to the comptroller before the last day of the
                     first month following each calendar quarter the
                     funds collected under this article during the
                     preceding quarter.
       (f) A county may retain 10 percent of the funds collected under this
       article by an officer of the county as a collection fee if the custodian of
       the county treasury complies with Subsection (e).

                                   ****
       (h) Except as provided by Subsection (h-1), the comptroller shall deposit
       35 percent of the funds received under this article in the state treasury to
       the credit of the state 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.

T EX. C ODE C RIM. P ROC. A RT. 102.020.

                                            2
                           S UMMARY OF THE A RGUMENT

      The courts are not revenue sources. Neither are the courts tax gatherers for the

state. Funds collected by the State should be necessary and incidental to the trial of a

criminal case. The DNA record fee supports the state highways and the Governor’s

grant-funded criminal justice planning. It does not support the courts. Under the

separation of powers clause, this Court should find the fee unconstitutional.

      Ancillary to the DNA record fee - but paramount in the determination - is

what is the test for a court cost in Texas?      This Court should reject the State’s

assertion that Ex parte Carson and Weir v. State and its progeny should be disavowed in

order to create a new test relying upon law from Oklahoma.




                                           3
                                       A RGUMENT

       The First Court of Appeals properly held that the DNA record fee is an
       unconstitutional tax that violates the separation of powers clause.

       The First Court of Appeals determined that the $250 DNA record fee was an

unconstitutional tax, explaining “the revenue, by statute, is dedicated by law for

expenditures that are far removed from actual ‘court costs.’ A plain reading of the

pertinent statutes reveals this undeniable fact.” Peraza, 2014 WL 7476214, at *12.

I.     Three parts to the theory that the DNA record fee is an unconstitutional
       tax.

       The State claims the Court of Appeals erred in finding the DNA record fee is

an unconstitutional tax that violates the separation of powers clause. (State’s brief at

2). In order to evaluate the State's argument, one must first understand the general

rationale supporting the idea that certain criminal court costs are unconstitutional.

This rationale has three parts.

       A.     Court costs must be necessary and incidental to the trial of a
              criminal case to be legitimate.

       Part One concerns the legitimacy of a court cost. This Court has said a court

cost is legitimate only if it funds services necessary or incidental to the trial of a

criminal case. Ex parte Carson, 143 Tex. Crim. 498, 159 S.W.2d 126, 130 (1942).

       B.     An illegitimate court cost is actually a tax.

       Part Two is the principle that an illegitimate court cost is not a court cost at all,

but is in reality a tax. If a court cost’s purpose is to raise revenue instead of to recoup

the costs of judicial resources, then the cost is a tax. State v. Lanchos, 980 So.2d 643,



                                             4
653 (La. 2008).    The fact that an assessment is labeled as a court cost is of no

consequence. Id.

       C.     The separation of powers doctrine is violated when the courts act
              as tax-gatherers.

       Part Three is pure separation-of-powers doctrine.         The doctrine is violated

when one of the three branches of Texas government is delegated a power more

appropriately attached to another branch. Armadillo Bail Bonds v. State, 802 S.W.2d 237,

239 (Tex. Crim. App. 1990).      A statute imposing an executive branch power on the

judicial branch would violate the separation of powers doctrine and be

unconstitutional. The power to collect taxes is a function of the executive branch -

not the judicial branch. Therefore, a statute requiring the judicial branch to assess and

collect taxes - albeit taxes disguised as court costs - violates the separation of powers.

The constitutionality of any criminal court cost can be evaluated under the foregoing

three-part rationale.

II.    The State challenges every part of this court cost rationale.

       The State argues that the DNA record fee is not an unconstitutional tax that

violates the separation of powers clause of the Texas Constitution. (State’s Brief at 2).

The State’s argument attacks all three parts of the general rationale for certain court

costs being unconstitutional. All their contentions are meritless.

       A.     The State believes the holding of Carson is merely dicta.

       As noted earlier, Part One of the general rationale concerns the legitimacy of a

court cost. The State takes issue with the test employed by the Court of Appeals in

determining that the DNA record fee is not a legitimate cost. The Court of Appeals

                                             5
employed the test set out by this Court in Ex parte Carson, 159 S.W.2d at 130. The test

is that a court cost is legitimate only if it funds services necessary or incidental to the

trial of a criminal case. Id.

       The State avers that the Carson test should not be utilized because the test is not

an actual holding of this Court, but rather is dicta. (State’s Brief at 10-11). The State

then urges this Court to “disavow” the test. (State’s brief at 11). The State then

suggests this Court “need not replace the language of Ex parte Carson with some other

test to evaluate the propriety of costs.” Id. If, however, this Court does choose to

impose a test, the State suggests using a much more lenient test from the State of

Oklahoma. Id. The Oklahoma test is that a court cost is legitimate if it is “reasonably

related to the costs of administering the criminal justice system.” Id. (citing State v.

Claborn, 870 P.2d 169 (Okla. Crim. App. 1994)). The State accurately notes that under

the Oklahoma test, a cost would not need to “be limited to compensating the

judiciary.” (State's Brief at 11).

       1.      The State’s rationale fails because Carson is binding precedent.

       Faced with a court cost that fails the test for legitimacy, the State advances a

familiar pattern of argument similar to the law school example about the farmer’s

cabbages being eaten by a goat:

       You had no cabbages.

       If you had any cabbages, they were not eaten.

       If your cabbages were eaten, it was not by a goat.

       If your cabbages were eaten by a goat, it wasn’t my goat.

       And if it was my goat, he was insane!
                                           6
James        W.   McElhaney,   Great    Arguments,    ABA      Journal    March   1,   2004.

(http://www.abajournal.com/magazine/article/great_arguments).

        The State's argument on appeal follows this pattern:

        Attack the test standard.

        Assert that there should not even be a test standard.

        And if a test is necessary, the standards should be greatly relaxed.

        And even under a greatly relaxed standard, anything named a “court cost” is

        valid.

        2.        In Carson, the test for a court cost was expressed in both the
                  original opinion and the opinion on rehearing.

        First, the State argues that the Carson test for evaluating a court cost’s legitimacy

is not actually the test. In essence, the State asserts that this Court did not mean what

it said in Carson because it is in conflict with the result the State seeks.

        In Carson, this Court invalidated a $1.00 court cost in Harris and Dallas

Counties to support county law libraries used by attorneys and judges. This Court

explained its rationale at some length:

        On one side the courts take the view that the cost may be taxed as a
        proper item because the money is used in the establishment and
        maintenance of a law library, which, it is stated, is a legitimate charge on
        the litigants. We find ourselves unable to accept that view. Such
        reasoning would lead into fields of expenditures which may well include
        the cost of the courthouses, 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.
        Many other illustrations might be used to show the fallacy of such
        contention and the inevitable results that litigation in the courts would be
                                              7
          prohibitive. We, therefore, conclude, as several states have, 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.

Carson, 159 S.W.2d at 127.

          This Court went on to say that it “also concluded” the statute authorizing the

fee was an unconstitutional local law. Id. at 127-28. Later in the opinion, this Court

declared that the $1.00 court cost also violated the constitutional guarantee of equal

protection. Id. at 129-30. There were three listed reasons for this Court's invalidation

of the $1.00 law library court cost. On rehearing, this Court reiterated the first two of

these reasons, explaining:

          We remain firmly convinced: (a) That the item of $1.00 taxed as costs for
          the Law Library Fund is neither necessary nor incidental to the trial of a
          criminal case, and that it is not a legitimate item to be so taxed, (b) that
          to so tax against a defendant in a criminal case in Harris County, and not
          tax it in other counties where a defendant was convicted of the same
          offense would be a discrimination which the law does not recognize or
          tolerate.

Id. at 130.

          The idea that the $1.00 court cost was invalid because it was not necessary or

incidental to the trial of a criminal case was expressed twice. The idea was expressed

in both the original opinion and the opinion on rehearing. The fact that this idea was

expressed twice, weakens the State’s argument that the Carson test for a cost’s validity

is not an actual holding. This fact also runs counter to the State’s suggestion that the

Carson test is merely a “hypothesis” borne out of “disdain for [the] fee.” (State’s Brief

at 10).




                                               8
         3.       Carson is not essential to the determination of this case. This
                  Court has recently determined a strikingly similar test for what a
                  court cost is in Weir v. State.

         The State urges this Court to disavow the Carson test. Id. at 11. The State then

suggests that there need be no test at all. Id. (“The Court need not replace the

language of Ex parte Carson with some other test to evaluate the propriety of costs or

fees.”)(State’s brief at 11). This suggestion implies that if this Court disavows the

Carson test, no other Texas law speaks to the propriety of court costs. See id. (“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 violate the separation of

powers clause.”). The State’s implication, however, is inaccurate. This Court has

announced alternative formulations of the Carson test on multiple occasions in recent

years.        So even if this Court disavows the Carson test, this Court’s alternative

formulations of the test will still stand. Contrary to the State's confident declaration,

the Carson test is not “essential to Appellant's argument.”   This Court would have to

disavow numerous declarations in multiple recent cases before Texas would have no

test to evaluate the propriety of court costs.

         4.       Numerous cases would have to be disavowed under the State’s
                  theory that there is no test for a court cost in Texas.

         The first case would be Weir v. State, where Judge Hervey wrote for a

unanimous court:

         We also agree with the State that Section 102.021(1) of the Texas
         Government Code, authorizing an assessment of court costs against
         convicted defendants, was intended by the Legislature as a nonpunitive

                                             9
      “recoupment of the costs of judicial resources expended in
      connection with the trial of the case.” (emphases added)

Weir v. State, 278 S.W.3d 364, 365-66 (Tex. Crim. App. 2009). What is especially

intriguing about Weir, is that this Court adopted wholesale the State’s proffered

definition of what a court cost should be. And that definition is not significantly at

odds with Carson.

      In another unanimous decision, this Court reaffirmed Weir:

      Instead, court costs are compensatory in nature; that is, they are “a nonpunitive
      recoupment of the costs of judicial resources expended in
      connection with the trial of the case.” Id. at 366 (quotations
      omitted).(emphases added)

Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011).

      And again in Johnson v. State, this Court unanimously explained:

      However, court costs are not part of the guilt or sentence of a criminal
      defendant, nor must they be proven at trial; rather, they are “a
      nonpunitive recoupment of the costs of judicial resources expended in
      connection with the trial of the case.” See Armstrong, 340 S.W.3d at 767
      (quoting Weir, 278 S.W.3d at 366-67).

Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014).

      All three of these cases have been relied upon repeatedly by the lower courts of

appeals: See e.g., Davila v. State, 441 S.W.3d 751, 762 (Tex. App.—Houston [1st Dist.]

2014, pet. ref’d); Houston v. State, 410 S.W.3d 475, 477 (Tex. App.—Fort Worth 2013,

no pet.); Drisker v. State, 03-13-00356-CR, 2014 WL 4063339, at *1 (Tex.

App.—Austin Aug. 14, 2014, no pet.); Coronel v. State, 416 S.W.3d 550, 556 (Tex.

App.—Dallas 2013, pet. ref’d); Habib v. State, 431 S.W.3d 737, 743 (Tex.

App.—Amarillo 2014, pet. ref’d); Edwards v. State, 09-13-00360-CR, 2014 WL

1400747, at *3 (Tex. App.—Beaumont Apr. 9, 2014, no pet.) Cantrell v. State,
                                  10
10-12-00269-CR, 2014 WL 2069279, at *5 (Tex. App.—Waco May 15, 2014, no pet.);

Hill v. State, 440 S.W.3d 670, 674 (Tex. App.—Tyler 2012, no pet.). (List not

exhaustive).

       5.      The State’s opinion that this Court should adopt a test from
               Oklahoma fails to consider appropriate precedent.

       The State’s suggestion that this Court adopt the Oklahoma test for criminal

court cost validity assumes the absence of an existing test here in Texas. As explained

above, this Court would have to disavow its statements in many more cases than

Carson before there would be no Texas test.

       B.      An illegitimate court cost is a tax - according to the State’s cited
               authority.

       Part Two of the rationale is that an illegitimate court cost is not a court cost at

all, but is in reality a tax. The State takes issue with this idea, calling it “highly tenuous

and mostly semantic.” (State's Brief at 12).

       The State refuses to recognize that a court cost deemed to be invalid - no

matter what the test for invalidity - is essentially a tax. All four cases the State cites

as support for its argument actually refer to an improper court cost or filing fee

as a tax. (See State's Brief at 12-13):

       1.      Carson, 159 S.W.2d at 127(reasoning 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);

       2.      LeCroy v. Hanlon, 713 S.W.2d 335, 338 (Tex. 1986)(the $40 tax allocated
               to state general revenues...);

       3.      State v. Claborn, 1994 OK CR 8, 870 P.2d 169, 171 (Okla. Crim. App.
               1994)(holding that “as long as a criminal statutory assessment is
               reasonably related to the costs of administering the criminal justice

                                             11
              system, its imposition will not render the courts ‘tax gatherers’ in
              violation of the separation of powers doctrine);

       4.     Crocker v. Finley, 99 Ill. 2d 444, 452, 459 N.E.2d 1346, 1349
              (1984)(holding “[t]he $5 charge at issue, referred to by statute as a fee, is
              in reality a tax).

       The first of the four cases cited by the State is LeCroy v. Hanlon, 713 S.W.2d 335

(Tex. 1986). At issue in LeCroy was a statute requiring district clerks to collect a

$75.00 filing fee in a civil case.     The county was to retain $35.00 and send the

remaining $40.00 to the State Comptroller for deposit in the State's General Revenue

Fund. The Texas Supreme Court described the problem with the $40 portion of the

filing fee as follows:

              The major defect with the filing fee is that it is a general revenue
       tax on the right to litigate: the money goes to other statewide programs
       besides the judiciary.       Nearly all states with similar open courts
       provisions have held that filing fees that go to fund general welfare
       programs, and not court-related services, are unconstitutional.

Id. at 342 [footnote omitted].

       LeCroy is a civil case involving a filing fee instead of a criminal case involving a

criminal court cost and the constitutional provision at issue is the Texas Open Courts

Provision instead of the separation of powers clause.          But the Supreme Court's

conclusion is relevant in cases that challenge criminal court costs. When a court cost

goes to statewide programs other than the judiciary, the cost is a general revenue tax.

Id. This is not semantics; it's the law.

       Another of the four cases cited by the State is State v. Claborn, 870 P.2d 169

(Okla. Crim. App. 1994). (State's Brief at 13). The State had this to say about Claborn:

             But in Claborn, the Oklahoma Court of Criminal Appeals
       addressed the viability of a prior opinion that held a court cost was a tax
                                            12
       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.”

(State's Brief at 13).

       Nothing in the literal wording of the State's comments about Claborn is

inaccurate.    But the State's citation of Claborn in support of its contention that an

invalid court cost is not a tax is at least misguided. The State’s comments about

Claborn are intended to suggest that the Oklahoma Court of Criminal Appeals said an

invalid court cost is not a tax. This is not the case at all.

       The Claborn Court never said an invalid court cost is not a tax. Rather, the

Court disagreed with its previous opinion invalidating a fee that did not bear a true

relation to the expenses of the particular prosecution. Claborn v. State, 870 P.2d at 171.

The Claborn Court felt the test for determining the validity of a criminal court cost

should be broader. Never did the Claborn Court disagree with the idea that an invalid

criminal constitutes a tax.     This is clear from the Oklahoma Court of Criminal

Appeals’ holding in Claborn:

       Today we reject the rigid standard adopted in Coffelt. It is, of course,
       incumbent on this Court and the judicial branch in general to carefully
       preserve and protect the separate powers assigned to each of the three
       branches of government by our constitution. With this in mind, we hold
       that as long as a criminal 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.

Id. (“The various assessments are reasonably related to the costs of administering the

criminal justice system and are not simply an executive branch ‘tax.’”).


                                              13
       C.      A statute requiring the judicial branch to assess and collect taxes
               violates the separation of powers.

       Part Three of the rationale is that the power to collect taxes is a function of the

executive branch - not the judicial branch.      Thus, a statute requiring the judicial

branch to assess and collect taxes - albeit taxes disguised as court costs - violates the

separation of powers.

       The State does not accept this argument. The State contends that even if the

cost is a tax, the assessment of the cost by the courts does not make them tax

collectors. (State's Brief at 13).   If courts are tax collectors, the State says, then

business owners who charge sales taxes and forward them to the comptroller are also

tax collectors. Id.

       Further, the State argues that delegations of authority to one branch of

government that are more properly attached to another branch are not always

unconstitutional. Id. at 14. The State finds support for this argument on this Court's

opinion in State v. Rhine, 297 S.W.3d 301, 305 (Tex. Crim. App. 2009). The State says

that whether such a delegation is unconstitutional “is essentially a matter of degree.”

(State's Brief at 14).

       1.      Texas state courts should not act as tax-gatherers.

       Statutes requiring courts to assess court costs that are actually taxes render the

courts “tax gatherers” in violation of the separation of powers doctrine. State v.

Lanchos, 980 So.2d 643, 654 (La. 2008). Even the Oklahoma case oft-cited by the

State to support its various arguments acknowledges this truth. State v. Claborn, 870

P.2d 169, 171 (Okla. Crim. App. 1994) (“court cost not reasonably related to costs of

                                           14
administering criminal justice system renders courts ‘tax gatherers’ in violation of

separation of powers”).

       The State’s argument in opposition to these cases contains no cases saying

otherwise. The Rhine case does not hold to the contrary. Apparently, no cases hold to

the contrary.

       The State's assertion that courts cannot be tax collectors because retailers who

collect taxes would then have to be tax collectors is of no moment. Retailers do serve

as tax collectors of sorts. But by collecting sales taxes and remitting them to the State

Comptroller, retailers do not perform a duty belonging to another branch of

government. Retailers are not a branch of government. If anything, retailers serve as

agents of the executive branch of government. The courts, on the other hand, are

part of the judicial system:

       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. This provision is violated when one branch of government

is delegated a power that is more appropriately attached to another branch. Armadillo

Bail Bonds v. State, 802 S.W.2d at 239. Thus, a statute imposing upon the judicial

branch a power of government belonging to the executive branch would violate the

doctrine of separation of powers.1
1


      See Forbes v. Texas Dep't of Public Safety, 335 S.W.2d 439, 442-43 (Tex. Civ. App. -
Waco 1960, no writ) (separation of powers provision applies to statutes involving exercise
by the courts of non-judicial powers); Accord Buback v. Romney, 156 N.W.2d 549, 558
                                              15
      2.     The Power to Collect Taxes is an Executive Branch Function.

      The Comptroller of Public Accounts is one of six officers constituting the

executive department of the State of Texas. T EX. C ONST., A RT. IV, S EC. 1. The

Comptroller is to perform such duties as may be required by law. T EX. C ONST., A RT.

IV, S EC. 23. As stated in the Comptroller's “Agency Strategic Plan” for 2011-2015,

the Comptroller serves as “Texas’ chief tax collector” and “collects taxes and fee

owed to the state.” 2 Chapter 403 of the Government Code sets out many of the

Comptroller's duties in this regard. Because the Comptroller is an executive branch

officer, the power to collect taxes resides in the executive branch of state government.

      Unlike the executive branch, the judicial branch is not empowered to collect

taxes. Rather, the judicial branch is charged with exercising the “judicial power” of

the state which has been defined by the Texas Supreme Court as follows:

      Judicial power is the power of a court to decide and pronounce a judgment
      and carry it into effect between persons and parties who bring a case before
      it for a decision.

Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 644 (1933). Nothing in the definition

of judicial power suggests that courts have the power to collect taxes.

      The courts are not agents of the executive branch. When the courts collect

taxes, they usurp the duty of the executive branch to collect taxes. This is a violation

of the separation of powers doctrine.


(Mich. 1968) (Michigan Supreme Court struck down statute imposing executive branch
functions on the judicial branch).
2


      Agency Strategic Plan 201-2015, Susan Combs Texas Comptroller of Public
Accounts, page 7. The strategic plan can be accessed online at:
http://www.cpa.state.tx.us/taxbud/strategic/96-361-10.pdf.
                                         16
III. The First Court of Appeals was correct under any test of a valid court
     cost.

        The State believes the Carson test is invalid. Mr. Peraza believes it is binding

precedent upon this court and the DNA fee is unconstitutional under that test.

        The State further averred that without Carson, there is no test in Texas. (State’s

brief at 11).     Actually, there is a test under Weir and Armstrong. The Court’s

determination in Weir is very similar to Carson and the DNA record fee fails under that

test.

        The State would like this Court to overrule Carson and Weir and Armstrong to

craft a new rule based upon an Oklahoma case, Claborn. Even if this Court were to do

that, the DNA record fee still fails.

        A.    Under the Carson test, the DNA record fee is unconstitutional.

        In Carson, this Court held that a $1 law library court cost fee “constituted an

unconstitutional tax, not a legitimate court cost, because it was “neither necessary nor

incidental to the trial of a criminal case.” Peraza, 2014 WL 7476214, at *5.

        The First Court of Appeals explained why the DNA record fee failed under

Carson “[a]nd the revenue collected via the ‘DNA Record Fee’ to be used by DPS for

anything covered by chapter 411, subchapter G, or for crime laboratory accreditation

under Government Code section 411.0205, is not closely enough related to appellant's

criminal trial to be considered constitutional”:

         The court in Carson, which constitutes binding precedent on this Court,
        held that fees which are “neither necessary nor incidental to the trial of a
        criminal case” are not legitimate courts costs that may be assessed
        against a defendant. 159 S.W.2d at 127, 130. As discussed above, the
        responsibilities of TxDOT, which under the Code of Criminal Procedure
        is entitled to use thirty-five percent of the revenue collected by the
                                           17
      “DNA Record Fee,” do not relate to the trial of a criminal case.
      Instead, the responsibilities of TxDOT are far more remote from a
      criminal trial than the county law libraries which were to be used by
      the judges and attorneys for trial preparation in Carson. Thus, it cannot
      be reasonably concluded that the portion of the revenue collected
      through the “DNA Record Fee” and dedicated to the state highway fund
      constitutes a proper court cost to be assessed against appellant or any
      other criminal defendant.

Peraza, 2014 WL 7476214, at *7-8

      And as for the sixty-five percent dedicated to the criminal justice planning

account - the Court of Appeals aptly explained how the money, from the general

revenue fund, provides grants to a host of programs entirely unrelated to the trial of a

criminal case:

            Moreover, the CJD has awarded money from the fund to a variety
      of recipients, such as the Alamo Area Council of Governments for
      Regional Police Training Academy, the Bastrop County Women's
      Shelter for SAINT: Sexual Assault Integrated Nursing Team, Fort
      Bend County for the “Saved by the Bell” Delinquency Reduction
      Program, the Katy Christian Ministries for Counseling Services for
      Victims of Domestic Violence, and The Family Place for
      S.T.A.R.T. (Students Tackling Abusive Relationships Together). See,
      e.g., Press Release, Office of Governor Tex., Gov. Perry Awards $8
      Million in Grants to Improve Criminal Justice Systems (Sept. 10, 2008),
      http:// governor.state.tx.us/news/press-release/11114/ (listing
      seventy-nine recipients that received more than $8 million in grants from
      criminal justice planning fund); Press Release, Office of the Governor of
      Tex., Gov. Perry Awards $195,000 From State Criminal Justice Planning
      Fund, supra (stating more than $195,000 in grants from criminal justice
      planning fund awarded to Wood County for Wood County Rural
      Prosecutor Project and Beyond Missing Inc. for Texas Amber Alert
      Network); Press Release, Office of Governor, Governor Rick Perry
      Announces Statewide Grant to Reduce School Dropouts (Nov. 7, 2001),
      http:// governor.state.tx.us/ news/press-release/4229/ (announcing
      $168,146 criminal justice planning fund grant to Behavioral Health
      Institute of Waco to assist with “efforts to reduce school failure,
      dropout rates, and juvenile crime”); see also Helpful Questions and
      Answers for Managing Grants, supra, at B–12 (listing activities
      eligible for grants from criminal justice planning fund, such as job
      training, professional therapy and counseling, school based
                                          18
       delinquency prevention, substance abuse, and peer support
       groups).(emphases supplied)

Peraza, 2014 WL 7476214, at *10.

       Additionally, the State contends that the Court of Appeals’ determination that

past grant recipients were “unworthy of court cost financing” is a “complaint directed,

not at the statute, but at the grant award practices of the criminal justice division of

the Governor’s Office.” (State’s brief at 10). The problem is with the statute - it is

exceedingly broad and written without any concern of supporting the courts that

collected the fee:

       (a) The governor shall establish a criminal justice division in the
       governor's office to:
             (1) advise and assist the governor in developing policies,
             plans, programs, and proposed legislation for improving
             the coordination, administration, and effectiveness of the
             criminal justice system;
             (2) administer the criminal justice planning fund;
             (3) prepare a state comprehensive criminal justice plan, to
             update the plan annually based on an analysis of the state's
             criminal justice problems and needs, and to encourage
             identical or substantially similar local and regional
             comprehensive criminal justice planning efforts;
             (4) establish goals, priorities, and standards for programs
             and projects to improve the administration of justice and
             the efficiency of law enforcement, the judicial system,
             prosecution, criminal defense, and adult and juvenile
             corrections and rehabilitation;
             (5) award grants to state agencies, units of local
             government, school districts, and private, nonprofit
             corporations from the criminal justice planning fund for
             programs and projects on consideration of the goals,
             priorities, and standards recommended by the Criminal
             Justice Policy Council;

T EX. G OV'T C ODE A NN. § 772.006. The intimation that perhaps the Governor’s

office was dispensing grants not according to the statute is without authority.

                                           19
              1.     The State’s argument that the Court of Appeals
                     determination is “speculative” fails. (State Brief at 8).

       The State believes the Court of Appeals “speculated” when detailing what the

statute says the money is used for. (State brief at 8). The Court of Appeals relied upon

the plain language of the statute as to what the DNA record fee supports. See Peraza,

2014 WL 7476214, at *5. When discerning the meaning of a statute, the reviewing

court should start its analysis by looking at the plain language of the statute in

question. Ex Parte Whiteside, 12 S.W.3d 819, 821 (Tex. Crim. App.2000). If the statute

is clear and unambiguous, the plain meaning of its words should be applied. Boykin v.

State, 818 S.W.2d 782, 785 (Tex. Crim. App.1991).

       Additionally, the plain language of the statute dictates that the collected money

go into the general revenue fund. Peraza, 2014 WL 7476214, at *5, 8. The depositing

of a court fee in the general revenue fund is sufficient to find the fee unconstitutional:

       Charging litigants who can pay a reasonable fee for judicial support
       services does not violate the open courts provision. Filing fees and court
       costs are usually constitutional. LeCroy v. Hanlon, 713 S.W.2d 335, 342
       (Tex.1986). However, a filing fee deposited in the state's general revenue
       fund is an arbitrary and unreasonable interference with a litigant's right
       of access to the courts. It is unreasonable and arbitrary because it is
       a general revenue tax on the right to litigate. LeCroy, 713 S.W.2d at
       341. The money collected can go to programs other than the judiciary.
       LeCroy, 713 S.W.2d at 341. It is immaterial that the State spends
       money from the general revenue fund on the judiciary. See LeCroy,
       713 S.W.2d at 342. (Emphases added).

Dallas County v. Sweitzer, 881 S.W.2d 757, 765 (Tex. App.—Dallas 1994, writ denied).

       B.     Under the Weir test, the DNA record fee is unconstitutional.

       In Weir, this Court (wholly adopting the State’s argument) held:

       We also agree with the State that Section 102.021(1) of the Texas
       Government Code, authorizing an assessment of court costs against
                                      20
         convicted defendants, was intended by the Legislature as a nonpunitive
         “recoupment of the costs of judicial resources expended in connection
         with the trial of the case.”

Weir, 278 S.W.3d at 365-66. The “costs of judicial resources expended in connection

with the trial of a case” does not include funding the State highway system or the

Governor’s Criminal Justice Planning Fund. Recoupment is defined as “[t]he getting

back or regaining of something, esp. expenses.” Recoupment, Black’s Law Dictionary

(10th ed. 2014).      A resource is the money that might be deployed in a given

circumstance.”     Resource,   Black’s Law Dictionary (10th ed. 2014).     The Weir test

envisions the courts getting back money used with the trial of the case.

         As explained supra, the DNA record fee was neither written nor apparently

envisioned to return money to the courts as recoupment. Under the Weir test, this fee

fails as a constitutionally valid court cost.

         C.    Under the Claborn test, the DNA record fee is unconstitutional.

         The State has a different theory than what was offered and accepted by this

Court in Weir. Now, the State would prefer a more relaxed standard, if any, that a

court cost “need only be ‘reasonably related to the costs of administering the criminal

justice system.’” (State’s brief at 11, citing Claborn, 870 P.2d at 171). However, even the

“reasonably related” standard, the DNA record fee fails. The state highway fund is

not reasonably related. The Court of Appeals detailed explanation of the way funds

are statutorily utilized are wholly unrelated to the criminal justice system where the

funds:

         may be used only: (1) to improve the state highway system; (2) to
         mitigate adverse environmental effects that result directly from
         construction or maintenance of a state highway by the department; or (3)
                                            21
      by the Department of Public Safety to police the state highway system
      and to administer state laws relating to traffic and safety on public
      roads.” T EX. T RANSP. C ODE A NN. § 222.001(a) (Vernon 2011).

Peraza, 2014 WL 7476214, at *5. The Criminal Justice planning committee in theory

would seem to support the courts, but the statute is so broad that in effect, it fails to

do that.    Advising the “governor in developing policies, plans, programs, and

proposed legislation for improving the coordination, administration, and effectiveness

of the criminal justice system” is not reasonably related to the criminal justice system.

T EX. G OV'T C ODE A NN. § 772.006 (a)(1).

IV.   Public Policy dictates that courts should collect only fees that support
      the courts.

      [C]lerks of court should not be made tax collectors for our state, nor
      should the threshold to our justice system be used as a toll booth to
      collect money for random programs created by the legislature. - Supreme
      Court of Louisiana

Carl Reynolds and Jeff Hall, 2011-2012 Policy Paper Courts are not Revenue Centers, p. 4.

http://cosca.ncsc.org/~/media/Microsites/Files/COSCA/Policy%20Papers/Courts

AreNotRevenueCenters-Final.ashx. (last visited April 22, 2015).3

      The report is must reading for anyone working in the court system to get a

broad understanding of the depth and breadth of the issues in “court costs.”         The

proposed principles set out by Mr. Reynolds and Mr. Hall would result in a better

court system and a fairer one for defendants, in general:

      The proliferation of these fees and costs as chargeable fees and costs
      included in the judgment and sentence issued as part of the legal
      financial obligation of the defendant has recast the role of the court as a
      collection agency for executive branch services.
3


     Carl Reynolds is the former administrative director of the Texas Office of Court
Administration.
                                       22
Id., at p. 9. That is exactly what is happening here in Texas.

      For example, in 2010 numbers are publicly available contrasting State revenue

from court costs and filing fees with State judicial branch expenditures. The State

realized $431,793,084 from criminal court costs and civil filing fees.4        But the

Legislature budgeted only $335,128,621 for the judicial branch.5

      Thus, the State took in nearly $100 million more from the court system than

the State spent on the courts ($431,793,084 - $335,128,621 = $96,664,463). Money

collected from the court system and directed to programs outside the judiciary does

not come back to the courts. Rather, the courts are used as a profit center to fund

general government programs. In other words, criminal defendants and civil lawsuit

filers pay not only to support the courts, but also to fund general government

programs. This practice violates the principle of separation of powers and is therefore

unconstitutional.

V.    Conclusion

      The DNA record fee is not for DNA testing. The statutes make clear that this

money is collected for the general revenue fund. The State closes its brief by declaring

that “[h]aving been convicted of a crime, Appellant must share in those costs.”

(State’s brief at 15). Yes - having been convicted of a crime, Mr. Peraza should

rightfully pay costs necessary or incidental to his trial or to recoup the costs of his



4
     http://www.lbb.state.tx.us/Other_Pubs/Financing%20the%20Judiciary%20in
%20Texas%20Legislative%20Primer%202011.pdf
5
      http://www.lbb.state.tx.us/GAA/General_Appropriations_Act_2010-11.pdf
page IV-45.
                                     23
criminal trial. He should not pay for highway funding or grant funded programs

wholly unrelated to the trial of a criminal case.

                                         P RAYER

       Mr. Peraza prays this Court affirm the modification of judgments and find that

the DNA record fee is unconstitutional.

                                                    Respectfully submitted,

                                                    A LEXANDER B UNIN
                                                    Chief Public Defender
                                                    Harris County Texas

                                                    /s/ Jani J. Maselli Wood
                                                    ______________________
                                                    J ANI J. M ASELLI W OOD
                                                    Assistant Public Defender
                                                    Harris County Texas
                                                    1201 Franklin, 13th Floor
                                                    Houston Texas 77002
                                                    Jani.Maselli@pdo.hctx.net
                                                    (713) 368-0016
                                                    (713) 368-4322
                                                    TBA No. 00791195




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                              C ERTIFICATE OF S ERVICE

      Pursuant to Tex. R. App. Proc. 9.5, this certifies that on April 23, 2015, a copy

of the foregoing was served electronically to counsel for the state (through

texfile.com) at the following address:

      Lisa McMinn
      State Prosecuting Attorney
      P.O. Box 13046,
      Austin, TX 78711
      information@spa.texas.gov

                                                     /s/ Jani Maselli Wood

                                              ______________________________

                                              JANI J. MASELLI WOOD




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                         CERTIFICATE OF COMPLIANCE

      Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this

petition complies with the type-volume limitations of Tex. R. App. Proc. 9.4(i)(2)(D).

      1.     Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this

petition contains 6796 words printed in a proportionally spaced typeface.

      2.     This petition is printed in a proportionally spaced, serif typeface using

Garamond 14 point font in text and Garamond 14 point font in footnotes produced

by Corel WordPerfect software.

      3.     Undersigned counsel understands that a material misrepresentation in

completing this certificate, or circumvention of the type-volume limits in Tex. R. App.

Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against

the person who signed it.



                                                       /s/ Jani Maselli Wood

                                                ____________________________
                                                JANI J. MASELLI WOOD




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