                                 NO. 12-16-00217-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

RAFAEL RODRIGUEZ,                               §      APPEAL FROM THE 432ND
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      TARRANT COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Rafael Rodriguez appeals from his conviction for burglary of a building. In two issues,
Appellant contends the judgment contains an error and section 133.102 of the local government
code is unconstitutional. We affirm as modified.


                                         BACKGROUND
       In an open plea, Appellant pleaded “guilty” to the state jail felony offense of burglary of
a building. Appellant also pleaded “true” to two enhancement allegations. The trial court
assessed Appellant’s punishment at confinement for four years.         The judgment states that
Appellant was convicted of a second degree felony. The judgment further assesses court costs,
including a $133 fee pursuant to the consolidated fee statute. This appeal followed.


                                      LEVEL OF OFFENSE
       In his first issue, Appellant contends the judgment of conviction should show that he was
convicted of a state jail felony instead of a second degree felony. Appellant and the State agree
that the judgment should be modified to reflect the offense for which Appellant was convicted.
       The trial court’s judgment shows that Appellant was convicted of a second degree felony
rather than a state jail felony. However, Appellant was convicted of burglary of a building,
which is a state jail felony. TEX. PENAL CODE ANN. § 30.02(c)(1) (West 2011). Appellant’s
punishment was enhanced to that of a second degree felony, because he had been twice
convicted of a prior felony. Accordingly, the trial court’s judgment incorrectly states Appellant
was convicted of a second degree felony. Thus, Appellant’s first issue is sustained.
       This court has the authority to modify an incorrect judgment when it has sufficient
information to do so. TEX. R. APP. P. 43.2(b). Because we have sufficient information in this
case, we modify the judgment to show that Appellant was convicted of a state jail felony offense.
See Garza v. State, 298 S.W.3d 837, 845 (Tex. App.—Amarillo 2009, no pet.).


                                CONSTITUTIONALITY OF STATUTE
       In his second issue, Appellant maintains that section 133.102(a)(1) of the local
government code is facially unconstitutional, because it violates the separation of powers clause
of the Texas Constitution. See TEX. CONST. art. II, § 1. Specifically, Appellant challenges the
law enforcement standards and education fee, the comprehensive rehabilitation fee, and the
abused children’s counseling fee as unrelated to the administration of criminal justice.
Standard of Review
       When reviewing the constitutionality of a statute, an appellate court must presume that
the statute is valid and that the legislature was neither unreasonable nor arbitrary in enacting it.
Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978). The party challenging the
statute has the burden of establishing that it is unconstitutional. Id. An appellate court must
uphold the challenged statute if it can be reasonably construed in a manner consistent with the
legislative intent and is not repugnant to the Constitution. See id.
       There are two types of constitutional challenges to a statute. An as-applied challenge
claims the statute operates unconstitutionally as applied to the challenger’s particular
circumstances. Fluellen v. State, 104 S.W.3d 152, 167 (Tex. App.—Texarkana 2003, no pet.).
A facial challenge is a claim that a statute, by its terms, operates unconstitutionally in all possible
circumstances. State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013).
       Whether a statute is facially constitutional is a question of law that the appellate court
reviews de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). In order to prevail in
a facial constitutional challenge, the “challenger must establish that no set of circumstances




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exists under which the statute will be valid.” Santikos v. State, 836 S.W.2d 631, 633 (Tex.
Crim. App. 1992).
Applicable Law
        Section 133.102 of the local government code mandates that a person convicted of a
felony must pay $133 “as a court cost, in addition to all other costs.” TEX. LOC. GOV’T CODE
ANN. § 133.102(a)(1) (West Supp. 2016). The collected amounts must be remitted to the
comptroller, who in turn must allocate this money to fourteen specified accounts:


   1.   Abused children’s counseling;

   2.   Crime stoppers assistance;

   3.   Breath alcohol testing;

   4.   Bill Blackwood Enforcement Management Institute;

   5.   Law enforcement officers standards and education;

   6.   Comprehensive rehabilitation;

   7.   Law enforcement and custodial officer supplemental retirement fund;

   8.   Criminal justice planning;

   9.   An account in the state treasury to be used only for the establishment and operation of the Center for the
        Study and Prevention of Juvenile Crime and Delinquency at Prairie View A&M University;

   10. Compensation to victims of crime fund;

   11. Emergency radio infrastructure account;

   12. Judicial and court personnel training fund;

   13. An account in the state treasury to be used for the establishment and operation of the Correctional
       Management Institute of Texas and Criminal Justice Center Account; and

   14. Fair defense account.


Id. § 133.102(e). Subsection (e) provides that the designated funds “may not receive less than”
certain percentages of the collected amounts. Id.
        In Peraza v. State, the court of criminal appeals set out a test for determining whether a
court cost was an unconstitutional tax.

        [I]f 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, then the




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        statute allows for a constitutional application that will not render the courts tax gatherers in
        violation of the separation of powers clause. 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.


Peraza v. State, 467 S.W.3d 508, 517-18 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1188
(2016). An appellant can raise complaints about costs for the first time on appeal when they are
not imposed in open court, including complaints about the constitutionality of the statutes
authorizing those costs. See London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016).
Preservation of Constitutional Challenge
        We first address the State’s argument that Appellant cannot raise a facial challenge to the
constitutionality of section 133.102 for the first time on appeal. The State relies on Karenev v.
State, wherein the court of criminal appeals held that “a defendant may not raise for the first time
on appeal a facial challenge to the constitutionality of a statute.” 281 S.W.3d 428, 434 (Tex.
Crim. App. 2009).         The State acknowledges that a “penal statute’s compliance with the
Separation of Powers provision of the Texas Constitution is a systemic [absolute]1 requirement.”
Therefore, an appellant may raise a separation of powers challenge to a penal statute for the first
time on appeal. See Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004); Aldrich v.
State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003). Given that Texas Local Government Code
section 133.102 is not a penal statute, the State contends Appellant’s challenge does not allege
the denial of a systemic requirement. Because Appellant did not raise his separation of powers
challenge to the constitutionality of section 133.102 at trial or in a motion for new trial, the State
maintains he cannot raise it on appeal.
        In London, the court of criminal appeals held that constitutional challenges to court costs
can be raised for the first time on direct appeal if, as in this case, the defendant did not have an
opportunity to object at trial. See London, 490 S.W.3d at 507. The state argues that since
London dealt with an as-applied constitutional challenge, it does not support Appellant’s attempt
to raise a facial challenge to the constitutionality of section 133.102 for the first time on direct
appeal. However, the court in London made no such distinction. See id. Therefore, we shall
address Appellant’s issue.

        1
           “A ‘systemic requirement’ (also known as an ‘absolute requirement or prohibition’) is a law that a trial
court has a duty to follow even if the parties wish otherwise. Any party that is entitled to appeal may complain on
appeal that such a requirement was violated, even if the party failed to complain about the failure or waived the
application of the law.” Mendez, 138 S.W.3d at 340.


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Law enforcement officers’ standards and education fund
       Section 133.102(e)(5) directs the comptroller to allocate 5.0034% of the proceeds to “law
enforcement officers’ standards and education.” TEX. LOC. GOV’T CODE ANN. § 133.102(e)(5)
(West Supp. 2016). Two-thirds of these proceeds may be used “only to pay expenses related to
continuing education” for law enforcement officers licensed under Chapter 1701 of the
occupations code, and the remaining 33.3 cents may be used only to pay related administrative
expenses. Id. § 133.102(f) (West Supp. 2016). The Law Enforcement Officer Standards and
Education Fund is defined in the Texas Occupation Code, as follows:


       (a) The law enforcement officer standards and education fund is in the general revenue fund.

       (b) The commission shall use the account in administering this chapter and performing
       other commission duties established by law.

       (c) The Department of Public Safety may use the money appropriated to the department
       from the account to award grants to local law enforcement agencies for training on
       incident-based reporting systems to be used for reporting information and statistics
       concerning criminal offenses committed in this state. The department shall adopt rules
       governing the award of grants by the department under this subsection.


TEX. OCC. CODE ANN. § 1701.156 (West Supp. 2016).
       Appellant argues that since the money collected from this fee is merely an account in the
general resource revenue fund and not directly allocated to a cost related to the administration of
the criminal justice system, it is an unlawful tax under the Peraza test. In Peraza, 65% of the
DNA Testing Fee was allocated to the criminal justice planning account in the general revenue
fund and 35% to the state highway fund. Peraza, 467 S.W.3d at 511, 518. The Peraza court
held that the DNA Testing Fee was not an unconstitutional tax, although 65% of it went to an
account within the general revenue fund.               Id. at 518-19.       Thus, under Peraza, the law
enforcement officer standards and education fund is not rendered an unlawful tax by its location
in the general revenue fund.
       As for Appellant’s complaint that the money collected is “not directly allocated to a cost
related to the administration of the criminal justice system,” Peraza only requires that the
allocation of court costs be related to the administration of criminal justice even if only through
interconnected statutes. See id. at 517-18.




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       The name of the challenged fee, the Law Enforcement Officers Standards and Education
Fee, strongly suggests that it relates to the administration of criminal justice. Moreover, a
reasonable reading of section 1701.153 of the occupations code shows that the challenged fee is
related to the administration of criminal justice and therefore constitutional under the Peraza test.
See TEX. OCC. CODE ANN. § 1701.156; see also Peraza, 1167 S.W.3d at 517-18. Specifically,
the statute authorizes the Department of Public Safety to “use money appropriated to the
department from the account to award grants to local law enforcement agencies for training on
incident-based reporting systems to be used for reporting information and statistics concerning
criminal offenses committed in this state.” TEX. OCC. CODE ANN. § 1701.156(c). Appellant has
not explained how a special account in the general revenue fund, from which DPS may allocate
funds in the manner described in section 1701.156, is unrelated to the administration of criminal
justice. Therefore, he has not met his burden of proving that it is impossible for the challenged
statute to operate constitutionally under any circumstances. See Santikos, 836 S.W.2d at 633.
Comprehensive Rehabilitation Fee and Abused Children’s Counseling
       Section 133.102 directs the comptroller to allocate 9.8218 percent of the proceeds to
“comprehensive rehabilitation” and .0088 percent to “abused children’s counseling.” TEX. LOC.
GOV’T CODE ANN. § 133.102(e)(1),(6) (West Supp. 2016). The court of criminal appeals has
held that both of these costs are facially unconstitutional. Salinas v. State, No. PD-0170-16,
2017 WL 915525, at *1 (Tex. Crim. App. Mar. 8, 2017). The court held that any fee assessed
pursuant to the statute must be reduced pro rata to eliminate the percentage of the fee associated
with these accounts. Id. Nevertheless, the court further held that its holding applies only to (1) a
defendant who raised the appropriate claim in a petition for discretionary review before the date
of the court’s opinion, if that petition is still pending on that date and the claim would otherwise
be properly before the court on discretionary review, or (2) a defendant whose trial ends after the
mandate in Salinas issues. Id. at *6. In this case, because there is no petition for discretionary
review pending on Appellant’s claim, and the proceedings in the trial court ended on June 21,
2016—well before the court of criminal appeals’s decision in Salinas—the court’s holding in
that case does not apply. See id. Accordingly, we overrule Appellant’s second issue.




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                                                   DISPOSITION
         Because we sustained Appellant first issue, we modify the trial court’s judgment to
reflect that Appellant was convicted of a state jail felony.                   As modified, the judgment is
affirmed.


                                                                               BILL BASS
                                                                                Justice




Opinion delivered May 31, 2017.
Panel consisted of Worthen, C.J., Neeley, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.




                                             (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             MAY 31, 2017


                                          NO. 12-16-00217-CR


                                      RAFAEL RODRIGUEZ,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 432nd District Court
                          of Tarrant County, Texas (Tr.Ct.No. 1416040D)

                       THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
                       It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be modified to show that Appellant, RAFAEL RODRIGUEZ, was
convicted of a state jail felony; and as modified, the trial court’s judgment is affirmed; and that
this decision be certified to the trial court below for observance.
                    Bill Bass, Justice.
                    Panel consisted of Worthen, C.J., Neeley, J. and Bass, Retired J., Twelfth Court of Appeals,
                    sitting by assignment.
