Opinion issued August 30, 2018




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-16-00768-CR
                           ———————————
                       RUBEN LEE ALLEN, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 337th District Court
                          Harris County, Texas
                      Trial Court Case No. 1487627


                DISSENTING OPINION ON REHEARING

     [O]ur clerks 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.1

1
     State v. Lanclos, 980 So. 2d 643, 651 (La. 2008) (internal quotations omitted)
     (holding $5.00 fee assessed against criminal defendants pursuant to Louisiana
     statute constituted “a tax collected by the courts, and thus a violation of the
     [S]eparation of [P]owers doctrine”); see also LeCroy v. Hanlon, 713 S.W.2d 335,
      A jury found appellant, Ruben Lee Allen, guilty of the offense of aggravated

robbery with a deadly weapon.2 After finding true the allegation in an enhancement

paragraph that he had previously been convicted of a felony offense, the jury

assessed his punishment at confinement for twenty-five years. In the judgment of

conviction, the trial court ordered appellant to pay court costs, “[a]s [a]ssessed,”

which included a $200 charge for “Summoning Witness/Mileage.”3 In his second

issue, appellant contends that the “Summoning Witness/Mileage” fee assessed

against him is unconstitutional.

      Because the majority, on rehearing, errs in holding that appellant has not met

his burden of establishing the unconstitutionality of Texas Code of Criminal

Procedure article 102.011(a)(3) and (b), I respectfully dissent.

                        “Summoning Witness/Mileage” Fee

      In his second issue, appellant argues that the $200 “Summoning

Witness/Mileage” fee assessed against him, an indigent criminal defendant, by the




      342 (Tex. 1986) (“If the right to obtain justice freely is to be a meaningful guarantee,
      it must preclude the legislature from raising general revenue through charges
      assessed to those who would utilize our courts.” (internal quotations omitted)).
2
      See TEX. PENAL CODE ANN. § 29.03(a)(2) (Vernon 2011).
3
      See TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(3), (b) (Vernon 2018) (imposing
      $5 charge on criminal defendant convicted of felony “for summoning [each]
      witness” and requiring defendant to pay “29 cents per mile for mileage required of
      an officer to perform a service . . . and to return from performing that service”).

                                             2
trial court is (1) facially unconstitutional because it violates the Separation of Powers

clause of the Texas Constitution and (2) unconstitutional as applied to him because

it violates his constitutional rights to compulsory process and confrontation.4 See

U.S. CONST. amend. VI; TEX. CONST. art. I, § 10 (rights to compulsory process and

confrontation), TEX. CONST. art. II, § 1 (Separation of Powers clause); see also TEX.

CODE CRIM. PROC. ANN. art. 1.05 (Vernon 2005).

      We review the constitutionality of a criminal statute de novo as a question of

law. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013); Maloney v. State, 294

S.W.3d 613, 626 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). When presented

with a challenge to the constitutionality of a statute, we presume that the statute is

valid and the legislature did not act unreasonably or arbitrarily. Rodriguez v. State,

93 S.W.3d 60, 69 (Tex. Crim. App. 2002); Maloney, 294 S.W.3d at 626. The party

challenging the statute has the burden to establish its unconstitutionality. Rodriguez,

93 S.W.3d at 69; Maloney, 294 S.W.3d at 626. We must uphold the statute if we

can apply a reasonable construction that will render it constitutional. Ely v. State,

582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.] 1979); see also Maloney, 294



4
      A criminal defendant may challenge the imposition of mandatory court costs for the
      first time on direct appeal when those costs are not imposed in open court and the
      judgment does not contain an itemization of the imposed court costs. See London
      v. State, 490 S.W.3d 503, 506–07 (Tex. Crim. App. 2016); see also Johnson v. State,
      423 S.W.3d 385, 390–91 (Tex. Crim. App. 2014); Casas v. State, 524 S.W.3d 921,
      925 (Tex. App.—Fort Worth 2017, no pet.).

                                           3
S.W.3d at 626 (if statute can be interpreted in two different ways, one of which

sustains its validity, we apply interpretation sustaining its validity).

      “A facial challenge to a statute is the most difficult challenge to mount

successfully” because it is an attack on the statute itself, rather than a particular

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

Toledo v. State, 519 S.W.3d 273, 279 (Tex. App.—Houston [1st Dist.] 2017, pet.

ref’d). To prevail on a facial challenge to a statute, the challenging party must

establish that no set of circumstances exists under which the statute would be

constitutionally valid. State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App.

2013); see also Horhn v. State, 481 S.W.3d 363, 372 (Tex. App.—Houston [1st

Dist.] 2015, pet. ref’d).

      Appellant argues that the “Summoning Witness/Mileage” fee assessed against

him, an indigent criminal defendant, by the trial court, violates the Separation of

Powers clause of the Texas Constitution and constitutes an impermissible tax

collected by the judiciary because “the funds” received from criminal defendants for

the fee are “not directed by statute to be used for a criminal justice purpose.” Instead,

“the funds” are “directed towards the general revenue fund of the county” “in which

the convicting court is located.”

      Article II, section 1, of the Texas Constitution provides:

      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
                                            4
      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.

TEX. CONST. art. II, § 1; see also Meshell v. State, 739 S.W.2d 246, 252 (Tex. Crim.

App. 1987) (“[This] single, tersely phrased paragraph, provides that the

constitutional division of the government into three departments (Legislative,

Executive and Judicial) shall remain intact, ‘except in the instances herein expressly

permitted.’” (quoting TEX. CONST. art. II, § 1)). “This division ensures that [the]

power granted [to] one branch may be exercised by only that branch, to the exclusion

of the others.” Ex parte Lo, 424 S.W.3d at 28; see also Gen. Servs. Comm’n v.

Little-Tex   Insulation   Co.,   39    S.W.3d     591,   600    (Tex.   2001)      (“The

[S]eparation-of-[P]owers doctrine prohibits one branch of government from

exercising a power inherently belonging to another branch.”); Meshell, 739 S.W.2d

at 252 (“[A]ny attempt by one department of government to interfere with the powers

of another is null and void.” (internal quotations omitted)).

      The Separation of Powers clause is violated “when one branch of government

assumes or is delegated a power more properly attached to another branch.” Ex parte

Lo, 424 S.W.3d at 28 (internal quotations omitted); see also Salinas v. State, 523

S.W.3d 103, 106–07 (Tex. Crim. App. 2017). A court is delegated a power more

properly attached to the executive branch, rather than to the judiciary, where a statute


                                           5
turns the court into a “tax gatherer[].” Salinas, 523 S.W.3d at 107, 109 n.26 (quoting

Peraza v. State, 467 S.W.3d 508, 517 (Tex. Crim. App. 2015)) (explaining “[t]he

issue is whether the fee in question is a court cost (which is allowed) or a tax (which

is unconstitutional)”).

      However, the collection of fees by a court in a criminal case constitutes a

judicial function, and thus does not violate the Separation of Powers clause of the

Texas Constitution, where a “statute under which [a] court cost[] [is] assessed (or an

interconnected statute) provides for an allocation of such [a] court cost[] to be

expended for [a] legitimate criminal justice purpose[].” Salinas, 523 S.W.3d at 107,

109 n.26 (quoting Peraza, 467 S.W.3d at 517); see also Casas v. State, 524 S.W.3d

921, 925–27 (Tex. App.—Fort Worth 2017, no pet.) (“Although courts may not

operate as tax gatherers, which is a function reserved to the executive branch of

government, courts may collect fees in criminal cases as part of [their] judicial

function if the statute under which [the] court costs are assessed (or an

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

expended for legitimate criminal justice purposes.” (internal quotations omitted)).

      “What constitutes a legitimate criminal justice purpose is a question to be

answered on a statute-by-statute/case-by-case basis.” Salinas, 523 S.W.3d at 107;

see also Peraza, 467 S.W.3d at 518. “And the answer to that question is determined

by what [a] governing statute says about the intended use of the funds [collected


                                          6
from criminal defendants], not whether [the] funds are actually used for a criminal

justice purpose.” Salinas, 523 S.W.3d at 107, 109 n.26; see also Casas, 524 S.W.3d

at 926. In other words, in order to not run afoul of the Separation of Powers clause

of the Texas Constitution, a statute that imposes a court cost on a criminal defendant

must direct “that the funds [collected pursuant to that statute] be used for something

that is a legitimate criminal justice purpose; it is not enough that some of the funds

may ultimately benefit someone who has some connection with the criminal justice

system.” Salinas, 523 S.W.3d at 109 n.26.

      As the Texas Court of Criminal Appeals has noted, “[w]hen a defendant is

convicted in a criminal case, various statutes require [him to] pay[] [certain] fees as

court costs.” Salinas, 523 S.W.3d at 105; see also Johnson v. State, 423 S.W.3d

385, 389 (Tex. Crim. App. 2014) (“Only statutorily authorized court costs may be

assessed against a criminal defendant . . . .”). Relevant to the instant case, article

102.011(a)(3) and (b) require a defendant “convicted of a felony or misdemeanor”

to pay fees for certain services “performed . . . by a peace officer,” including “$5 for

summoning [each] witness” and “29 cents per mile for mileage required of an officer

to perform [the] service . . . and to return from performing that service.” TEX. CODE

CRIM. PROC. ANN. art. 102.011(a)(3), (b) (Vernon 2018).

      In Salinas, the court of criminal appeals held that Local Government Code

section 133.102, which requires a person convicted of a criminal offense to pay a


                                           7
“Consolidated Court Cost” fee,5 violates the Separation of Powers clause of the

Texas Constitution to the extent that it allocates funds received from criminal

defendants to the “abused children’s counseling” account.6 523 S.W.3d at 105, 109–

110, 109 n.26 (internal quotations omitted). In doing so, the court explained that the

funds received from criminal defendants for the “Consolidated Court Cost” fee that



5
      See TEX. LOCAL GOV’T CODE ANN. § 133.102(a) (Vernon Supp. 2017) (“A person
      convicted of an offense shall pay as a court cost, in addition to all other costs:
      (1) $133 on conviction of a felony; (2) $83 on conviction of a Class A or B
      misdemeanor; or (3) $40 on conviction of a nonjailable misdemeanor offense,
      including a criminal violation of a municipal ordinance, other than a conviction of
      an offense relating to a pedestrian or the parking of a motor vehicle.”); see also
      Salinas v. State, 523 S.W.3d 103, 105 (Tex. Crim. App. 2017) (under Local
      Government Code section 133.102, “[a] defendant pays a single fee, but the money
      from that fee is divided up among a variety of different state government accounts
      according to percentages dictated by the statute”).
6
      The court also held that Local Government Code section 133.102 is
      unconstitutional, in violation of the Separation of Powers clause, to the extent that
      it allocates funds received from criminal defendants to the “[c]omprehensive
      [r]ehabilitation” account because such funds serve “[n]o criminal justice purpose.”
      Salinas, 523 S.W.3d at 105, 107–09 (internal quotations omitted). Since Salinas,
      the court of criminal appeals has repeatedly held that the portions of the
      “Consolidated Court Cost” fee that allocate funds received for the fee to the “abused
      children’s counsel” account and the “comprehensive rehabilitation” account are
      unconstitutional. See, e.g., Carter v. State, No. PD-1449-16, 2018 WL 1101310, at
      *1–2 (Tex. Crim. App. Feb. 28, 2018); Amie v. State, Nos. PD-0253-16,
      PD-0254-16, 2017 WL 5476352, at *1 (Tex. Crim. App. Nov. 15, 2017); Johnson
      v. State, 537 S.W.3d 929, 929–30 (Tex. Crim. App. 2017); Davis v. State, No.
      PD-1314-15, 2017 WL 4410265, at *1 (Tex. Crim. App. Oct. 4, 2017); Guerrero v.
      State, Nos. PD-0665-15, PD-0666-15, 2017 WL 4410256, at *1 (Tex. Crim. App.
      Oct. 4, 2017); Penright v. State, 537 S.W.3d 916, 916–17 (Tex. Crim. App. 2017);
      see also Act of May 18, 2017, 85th Leg., R.S., ch. 966, § 1, 2017 Tex. Sess. Law
      Serv. 3917 (amending Local Government Code section 133.102 to remove the
      “abused children’s counseling” account and “comprehensive rehabilitation”
      account identified by the court of criminal appeals as unconstitutional).

                                            8
are allocated to the “abused children’s counseling” account are actually “deposited

in the [State’s] General Revenue Fund.” Id. at 110 (internal quotations omitted).

Accordingly, the court concluded:

      We cannot uphold the constitutionality of funding [the “abused
      children’s counseling”] account through court costs on the basis of its
      name or its former use when all the funds in the account go to general
      revenue. Consequently, the allocation of funds to the “abused
      children’s counseling” account does not currently qualify as an
      allocation of funds “to be expended for legitimate criminal justice
      purposes.” To the extent that § 133.102 allocates funds to the “abused
      children’s counseling” account, it is facially unconstitutional in
      violation of the Separation of Powers provision of the Texas
      Constitution.

Id. at 110 (emphasis added).

      Essentially, the court of criminal appeals, in Salinas, explained that there are

“limits” to the types of fees that the legislature “c[an] require the courts to collect”

and “it [was simply] not enough that some of the funds [collected pursuant to the

‘Consolidated Court Cost’ fee] may ultimately benefit someone who has some

connection with the criminal justice system.” Id. at 109 n.26. Instead, the court held

that where a statute fails “to direct the funds [collected from criminal defendants] to

be used in a manner that would make it a court cost (i.e., for something that is a

criminal justice purpose), th[at] statute operates unconstitutionally every time the

fee is collected, making the statute unconstitutional on its face.” Id. at 109 n.26, 110

n.36 (“The fee is unconstitutional because the funds are not directed by statute to be

used for a criminal justice purpose.”).
                                           9
         This Court, relying on the court of criminal appeals’ decision in Salinas, has

since addressed the issue of whether the $25 “[P]rosecutor’s fee” assessed against a

criminal defendant, pursuant to Texas Code of Criminal Procedure article

102.008(a), is facially unconstitutional because it violates the Separation of Powers

clause     of    the   Texas     Constitution.       See    Hernandez   v.   State,   No.

01-16-000755-CR, --- S.W.3d ---, 2017 WL 3429414, at *6–7 (Tex. App.—Houston

[1st Dist.] Aug. 10, 2017, no pet. h.).7 In doing so, we noted that article 102.008(a)

requires “a defendant convicted of a misdemeanor” to pay “a fee of $25 for the trying

of [his] case by the district or county attorney.” Id. at *6 (quoting TEX. CODE CRIM.

PROC. ANN. art. 102.008(a) (Vernon 2018)). However, article 102.008(a) “does not

[actually] state where the [funds received from criminal defendants for the] $25

[‘Prosecutor’s] fee[’] [are] to be directed.” Id.; see TEX. CODE CRIM. PROC. ANN.

art. 102.008(a).

         Instead, we noted that the Office of Court Administration’s website shows

that “100% of the money collected” for the “[P]rosecutor’s fee” remains “with the

[c]ounty (or the [c]ity),” which the court serves and “is directed to th[at] [c]ounty’s

(or [c]ity’s) General Fund.” Hernandez, 2017 WL 3429414, at *6 (quoting Office

of Court Administration, Study of the Necessity of Certain Court Costs and Fees in

Texas (Sept. 1, 2014), at 6–7 in Criminal Court Costs Section (Fee No. 13,

7
         This case is currently before the Court on rehearing.

                                              10
“Prosecutor’s          Fee”),           http://www.txcourts.gov/media/495634/SB19

08-Report-FINAL.pdf (purpose of study, ordered by Senate Bill 1908, to “identif[y]

each statutory law imposing a court fee or cost in a court in this state” and

“[d]etermine whether each identified fee or cost is necessary to accomplish the stated

statutory purpose”))8; see also Salinas, 523 S.W.3d at 110 (noting, based on Texas

Comptroller’s website, funds collected pursuant to Local Government Code section

133.102 for “abused children’s counseling” account “deposited in the [State’s]

General Revenue Fund”). And “[m]oney in a county’s [or city’s] general fund can

be spent for ‘any proper county [or city] purpose.’” Hernandez, 2017 WL 3429414,

at *6 (quoting Tex. Att’y Gen. Op. No. JM-530 (1986)).

      Thus, relying on Salinas, we explained that “the constitutional infirmity” in

Hernandez was that article 102.008(a) did not “direct the funds [collected from

criminal defendants for the ‘[P]rosecutor’s fee’] to be used in a manner that would

make it a court cost (i.e., for something that is a criminal justice purpose).” 9 Id. at


8
      The study conducted by the Office of Court Administration identified several
      concerns, including the fact that “some fees and costs [ordered to be collected from
      criminal defendants] have no stated statutory purpose,” “court fees and costs
      collected from [criminal defendants] are oftentimes used to fund programs outside
      of and unrelated to the judiciary,” and “many court fees and costs are collected for
      a purpose but [are] not dedicated or restricted to be used exclusively for that
      intended purpose.” See Office of Court Administration, Study of the Necessity of
      Certain Court Costs and Fees in Texas (Sept. 1, 2014), at 2,
      http://www.txcourts.gov/media/495634/SB1908-Report-FINAL.pdf.
9
      The State, in its motion for rehearing in Hernandez, concedes that article 102.008(a)
      does not contain language directing the funds collected from criminal defendants
                                           11
*7 (quoting Salinas, 523 S.W.3d at 109 n.26); see also Johnson v. State, No.

14-16-00658-CR, --- S.W.3d ---, 2018 WL 1476275, at *4–5 (Tex. App.—Houston

[14th Dist.] Mar. 27, 2018, no pet. h.) (Texas Code of Criminal Procedure article

102.004, imposing $40 fee on criminal defendant convicted by jury, “on its face[,]

violates [S]eparation-of-[P]owers provision because the statute does not direct that

the funds collected be expended for something that is a legitimate criminal-justice

purpose”). And we concluded that article 102.008(a) “operates unconstitutionally

every time the [‘Prosecutor’s] fee[’] is collected,” making the statute

unconstitutional on its face. Hernandez, 2017 WL 3429414, at *7 (quoting Salinas,

523 S.W.3d at 109 n.26). Further, we noted that although “some of the money

collected” for the “[P]rosecutor’s fee” “may ultimately be spent on something that

would be a legitimate criminal justice purpose,” this “is not sufficient to create a

constitutional application of the statute because the actual spending of the money is

not what makes a fee a court cost.” Id. (quoting Salinas, 523 S.W.3d at 109 n.26).

      Accordingly, we held that because article 102.008(a) does not direct that the

funds received from criminal defendants for the $25 “[P]rosecutor’s fee” be

expended for a criminal justice purpose, the statute is unconstitutional in violation

of the Separation of Powers clause, as “it allocates [the] funds [collected] to



      for the “[P]rosecutor’s fee” to be expended for any legitimate criminal justice
      purpose.

                                         12
the . . . general fund” of the county that the court serves and allows such funds to be

spent “for purposes other than legitimate criminal justice purposes.” Id.; see also

Salinas, 523 S.W.3d at 109–10 (“We cannot uphold the constitutionality of funding

th[e] [‘abused children’s counseling’] account . . . when all the funds in the account

go to [the State’s] general revenue [fund].”); Peraza, 467 S.W.3d at 518 n.17

(agreeing “court costs should [generally] relate to the recoupment of judicial

resources”); Johnson, 2018 WL 1476275, at *4–5 (holding Code of Criminal

Procedure article 102.004 unconstitutional, in violation of Separation of Powers

clause, where it “fail[ed] to direct the funds collected to be used for something that

is a legitimate criminal-justice purpose”); Toomer v. State, No. 02-16-00058-CR,

2017 WL 4413146, at *3 (Tex. App.—Fort Worth Oct. 5, 2017, pet. ref’d) (holding

Code of Criminal Procedure article 102.0185 unconstitutional, in violation of

Separation of Powers clause, because “[n]either the statute authorizing the collection

of the emergency-services costs nor its attendant statutes direct the funds to be used

for a legitimate, criminal-justice purpose”); Casas, 524 S.W.3d at 925–27 (holding

Code of Criminal Procedure article 102.0185 unconstitutional, in violation of

Separation    of   Powers     clause,   and    noting   “monies     collected”   from

“emergency-services cost” allocated to general revenue fund); Tex. Att’y Gen. Op.

No. JC-0158 (1999) (“Court fees that are used for general purposes are characterized

as taxes, and a tax imposed on a litigant . . . violat[es] . . . the constitution.”).


                                          13
Accordingly, we modified the trial court’s judgment to delete the $25

“[P]rosecutor’s fee” from the costs assessed against the criminal defendant.

Hernandez, 2017 WL 3429414, at *7.

      Surprisingly, here, the majority concludes, unlike we did in Hernandez, that

Salinas and its progeny are irrelevant to the instant case. And now, on rehearing,

the majority strains to distinguish both Hernandez and Salinas10 so that it may hold

that Texas Code of Criminal Procedure article 102.011(a)(3) and (b) are not facially

unconstitutional.11 In doing so, the majority misinterprets the court of criminal



10
      While the majority takes great pains to distinguish these cases and reconcile its
      opinion on rehearing with their controlling nature, I am not persuaded and “cannot
      join the [laborious effort] in which the majority engages by forcing a square peg
      into a round hole.” See Saunders v. Lee, 180 S.W.3d 742, 746 (Tex. App.—Waco
      2005, no pet.) (Gray, C.J., dissenting).
11
      It is imperative to remember that when the legislature oversteps its bounds and
      passes a statute that violates the Texas Constitution, there is no shame in a court
      saying so. See LeCroy, 713 S.W.2d at 339 (courts have “the power and duty to
      protect the . . . guaranteed rights of all Texans” and “[b]y enforcing [the]
      constitution, [courts] provide Texans with their full individual rights”). As Justice
      Franklin Spears has explained:
             [The legislature may not] force the judiciary into the role of a
             subordinate and supplicant governmental service—in effect, a mere
             agency. The judiciary is not an agency, but is a constitutionally
             established separate, equal and independent branch of government.
             ....
             . . . . The judicial power provides a check on the abuse of authority
             by other governmental branches. If the courts are to provide that
             check, they cannot be subservient to the other branches of government
             but must ferociously shield their ability to judge independently and
             fairly. This is the essence of our very existence; we owe the people
             of Texas no less than our unflinching insistence on a true tripartite
                                           14
appeals’ decision in Peraza, which pre-dates Salinas, and fails to apply the correct

legal standard pronounced in Salinas to the instant case.

      In Peraza, the Texas Court of Criminal Appeals addressed whether a $250

“DNA record fee” assessed against a criminal defendant pursuant to Texas Code of

Criminal Procedure article 102.020 was “an unconstitutional tax that violate[d] the

[S]eparation of [P]owers clause under the Texas Constitution.” 467 S.W.3d at 510–

12. In its opinion, the court of criminal appeals explained that “court costs should

be related to the recoupment of costs of judicial resources . . . expended in

connection with the prosecution of criminal cases within [the] criminal justice

system.” Id. at 517. And the court held that in order to determine whether a court

cost assessed against a criminal defendant runs afoul of the Separation of Powers

clause, the question is not whether “such costs [are] ‘necessary’ and ‘incidental’ to

the trial of a criminal case,” but rather whether a “statute under which [a] court cost[]

[is] assessed (or an interconnected statute) provides for an allocation of such [a] court




             government. It is the responsibility of this court to preserve this
             constitutional framework.
             . . . . The judiciary may often be denominated as the “third” branch of
             government, but that does not mean it is third in importance; it is in
             reality one of three equal branches. As such, the judiciary is an
             integral part of our government and cannot be impeded in its
             function . . . .
      Mays v. Fifth Court of Appeals, 755 S.W.2d 80–81 (Tex. 1988) (Spears, J.,
      concurring) (internal footnotes and quotations omitted).

                                           15
cost[] to be expended for [a] legitimate criminal justice purpose[].” Id. at 517–18.

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

justice system,” and “[w]hether a criminal justice purpose is ‘legitimate’ is a

question to be answered on a statute-by-statute/case-by-case basis.” Id.

      Utilizing the above standard, the court of criminal appeals, in Peraza, went on

to hold that the criminal defendant in that case had not met his burden of establishing

that Texas Code of Criminal Procedure article 102.020, which imposes the “DNA

record fee,” could not operate constitutionally under any circumstance. Id. at 521.

Thus, the court held that article 102.020 was not facially unconstitutional in violation

of the Separation of Powers clause of the Texas Constitution.12 Id.

      Following Peraza, the court of criminal appeals in Salinas, as previously

discussed, addressed the constitutionality, under the Separation of Powers clause, of

Local Government Code section 133.102, which assesses a $133 “Consolidated

Court Cost” fee against criminal defendants. 523 S.W.3d at 105–10, 113. There,

the court looked at whether “some of the funds [received] from the [‘C]onsolidated

[Court Cost’] fee [were] statutorily apportioned to accounts[, namely, the



12
      Certainly, what the court of criminal appeals did not do in Peraza was hold, as the
      majority now concludes, that under the Separation of Powers clause “at least two
      types of fees assessed as court costs are constitutionally permissible: (1) court costs
      to reimburse criminal justice expenses incurred in connection with that criminal
      prosecutions and (2) court costs to be expended in the future to off-set future
      criminal-justice costs.”

                                            16
‘comprehensive rehabilitation’ account and the ‘abused children’s counseling’

account] that d[id] not serve legitimate criminal justice purposes.” Id. at 105–07

(noting “[t]he question here is whether the two accounts at issue (‘abused children’s

counseling’ and ‘comprehensive rehabilitation’) meet the requirement that the

relevant statutes provide for the allocation of funds ‘to be expended for legitimate

criminal justice purposes’”). The court ultimately concluded that the funds collected

from criminal defendants and allocated to the “comprehensive rehabilitation”

account and the “abused children’s counseling” account did not qualify as funds to

be expended for legitimate criminal justice purposes; and, thus, the court held that,

to the extent that Local Government Code section 133.102 allocates funds to those

accounts, the statute is facially unconstitutional. Id. at 106–10, 113. Notably, in

doing so, the court twice emphasized, using broad language, that section 133.102

was unconstitutional because the statute “fail[ed] to direct the funds to be used in a

manner that would make it a court cost (i.e., for something that is a criminal-justice

purpose).” Id. at 109 n.26, 110 n.36 (emphasis added).

      Although the majority, here, would like to assert that Salinas is different from

the instant case, it, by doing so, fails to recognize the court of criminal appeals’ use

of broad language in Salinas and the fact that the court did not limit its holding to

the circumstances of that case. See id. 106–10, 109 n.26, 110 n.36; see also Johnson,

2018 WL 1476275, at *4 (recognizing “broad language” employed by Salinas court


                                          17
and applying Salinas legal standard to “statute [that] is silent as to the allocation of

the court costs collected” from criminal defendants). Instead, what is clear after the

court of criminal appeals’ decision in Salinas is that our Court must apply the legal

standard utilized in that case (as well as Peraza) to appeals involving facial

constitutional challenges to court-cost statutes based on violations of the Separation

of Powers clause of the Texas Constitution. See State ex rel. Vance v. Clawson, 465

S.W.2d 164, 168 (Tex. Crim. App. 1971) (“The Court of Criminal Appeals is the

court of last resort in this state in criminal matters. This being so, no other court of

this state has authority to overrule or circumvent its decisions, or disobey its

mandates.” (internal quotations omitted)); Johnson, 2018 WL 1476275, at *4

(“[T]he Salinas decision requires us to apply the legal standard in that case to all

facial challenges based on the [S]eparation-of-[P]owers provision to court-cost

statutes.”); Cervantes-Guervara v. State, 532 S.W.3d 827, 832 (Tex. App.—

Houston [14th Dist.] 2017, no pet.) (when court of criminal appeals “has deliberately

and unequivocally interpreted the law in a criminal matter, [the courts of appeals]

must adhere to its interpretation”). Thus, after Salinas, to avoid being declared

facially unconstitutional, in violation of the Separation of Powers clause of the Texas

Constitution, a statute that imposes a court cost on a criminal defendant must direct

“that the funds [collected pursuant to that statute] be used for something that is a

legitimate criminal justice purpose.” Salinas, 523 S.W.3d at 109 n.26, 110 n.36; see


                                          18
also Peraza, 467 S.W.3d at 517–18 (“[I]f [a] statute under which court costs are

assessed . . . provides for an allocation of . . . court costs to be expended for

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

application that will not render the courts tax gatherers in violation of the

[S]eparation of [P]owers clause.” (internal footnote omitted)).      This the legal

standard to be applied in the instant case.

      Turning back to this case, the Court has been asked to determine whether the

“Summoning Witness/Mileage” fee assessed against criminal defendants, including

appellant, pursuant to Texas Code of Criminal Procedure article 102.011(a)(3) and

(b), is facially unconstitutional because it violates the Separation of Powers clause

of the Texas Constitution. See TEX. CONST. art. II, § 1. Article 102.011(a)(3) and

(b) require a defendant “convicted of a felony or misdemeanor” to pay fees for

certain services “performed . . . by a peace officer,” including “$5 for summoning

[each] witness” and “29 cents per mile for mileage required of an officer to perform

[the] service . . . and to return from performing that service.” See TEX. CODE CRIM.

PROC. ANN. art. 102.011(a)(3), (b). However, the statute does not actually state

where the funds received from criminal defendants for the “Summoning

Witness/Mileage” fee are to be directed. See id.; see also Tex Att’y Gen. Op. No.

JC-0031 (1999) (noting “[a] myriad of statutes authorize district clerks to collect

court fees in criminal and civil cases” and “[s]ome of these statutes earmark court


                                          19
fees for deposit in specific state or county accounts,” while “others are silent with

respect to this issue” (emphasis added) (internal footnotes omitted)). Under such

circumstances, the funds collected pursuant to article 102.011(a)(3) and (b) end up

in the general fund of the county in which the convicting court serves or the general

fund of the State. Cf. Johnson, 2018 WL 1476275, at *4 (Code of Criminal

Procedure article 102.004, imposing $40 fee on criminal defendant convicted by

jury, does not allocate jury fee to any specific fund; and, under such circumstances,

defendant and State agreed funds collected were deposited in general fund);

Hernandez, 2017 WL 3429414, at *6–7 (funds collected from criminal defendants

pursuant to Code of Criminal Procedure 102.008(a), which is silent as to where such

funds are directed, deposited in general fund of county or city court serves); see also

Tex Att’y Gen. Op. No. JC-0031 (if fee provision is silent with respect to fee’s

proper disposition and fee is for official service performed by district clerk, then

funds must be deposited in county treasury).

      In fact, the Office of Court Administration’s website even notes, in regard to

article 102.011(a)(3) and (b), that “100% of the money” collected for the

“Summoning Witness/Mileage” fee, including appellant’s money, remains “with the

county or city which the [c]ourt serves” and is directed to that county’s or city’s

“General Fund.” See Office of Court Administration, Study of the Necessity of

Certain Court Costs and Fees in Texas (Sept. 1, 2014), at 12, 51 in Criminal Court


                                          20
Costs Section (Fee No. 26, “Peace Officer Fee – Summoning a Witness”; Fee No.

118, “Peace Officer Fee – Mileage”), http://www.txcourts.gov/media/495634/SB

1908-Report-FINAL.pdf; see also Salinas, 523 S.W.3d at 110 & n.36 (noting “[t]he

[Texas] Comptroller’s website says that the money collected for [the] [‘]abused

children’s counseling[’] [account] is deposited in the General Revenue Fund”);

Hernandez, 2017 WL 3429414, at *6. Further, the Office of Court Administration’s

website explains that if a “peace officer” is employed by the State then “the [c]ity or

[c]ounty,” which the court serves, “keeps 80% of the [‘Summoning

Witness/Mileage’] fee,” which is then “direct[ed] . . . to the [c]ounty’s (or [c]ity’s)

General Fund,” while “[t]he [remaining] 20% of the money [collected for the

‘Summoning Witness/Mileage’ fee] is sent to the State for deposit in the State’s

General Revenue Fund.”13        See Office of Court Administration, Study of the

Necessity of Certain Court Costs and Fees in Texas (Sept. 1, 2014), at 12, 51 in

13
      Although the majority concludes that the Office of Court Administration’s website
      has “limited value,” the majority does not assert that the information from the
      website is inaccurate. Cf. Salinas, 523 S.W.3d at 110 n.36. Further, article
      102.011(a)(3) and (b) are not facially unconstitutional because of the information
      contained on the Office of Court Administration’s website. Instead, as explained
      above, in order to pass muster under the Separation of Powers clause of the Texas
      Constitution, article 102.011(a)(3) and (b), or an interconnected statute, must direct
      that the funds collected from criminal defendants for the “Summoning
      Witness/Mileage” fee be expended for something that constitutes a legitimate
      criminal justice purpose. Here, the statute simply does not do that; it does not state
      where the funds collected for the “Summoning Witness/Mileage” fee are to be
      directed. Accordingly, the funds collected pursuant to article 102.011(a)(3) and (b)
      are deposited in the county’s general fund or the State’s general fund to be used for
      any legal purpose. This is what renders the statute unconstitutional.

                                            21
Criminal Court Costs Section (Fee No. 26, “Peace Officer Fee – Summoning a

Witness”;       Fee    No.    118,    “Peace     Officer    Fee     –     Mileage”),

http://www.txcourts.gov/media/495634/SB1908-Report-FINAL.pdf;            see    also

Salinas, 523 S.W.3d at 110 & n.36. And because the funds received for the

“Summoning Witness/Mileage” fee are “directed to the General Fund (at both the

State and local level),” they “need not be spent only on law enforcement [purposes].”

See Office of Court Administration, Study of the Necessity of Certain Court Costs

and Fees in Texas (Sept. 1, 2014), at 12, 51 in Criminal Court Costs Section (Fee

No. 26, “Peace Officer Fee – Summoning a Witness”; Fee No. 118, “Peace Officer

Fee         –         Mileage”),      http://www.txcourts.gov/media/495634/SB19

08-Report-FINAL.pdf; see also Salinas, 523 S.W.3d at 110 & n.36 (noting “[t]he

[Texas] Comptroller’s website says that the money collected for [the] [‘]abused

children’s counseling[’] [account] is deposited in the General Revenue Fund”);

Hernandez, 2017 WL 3429414, at *6 (holding Code of Criminal Procedure article

102.008(a) unconstitutional, in violation of Separation of Powers clause, because “it

allocates funds to the county’s general fund” and those funds spent “for purposes

other than legitimate criminal justice purposes”); Casas, 524 S.W.3d at 925–27

(Code of Criminal Procedure article 102.0185 unconstitutional, in violation of

Separation of Powers clause, where funds collected from “emergency-services cost”

allocated to general revenue fund); Tex. Att’y Gen. Op. No. JC-0158 (“Court fees


                                         22
that are used for general purposes are characterized as taxes, and a tax imposed on a

litigant . . . violat[es] . . . the constitution.”); Tex. Att’y Gen. Op. No. JM-530

(money in county’s general fund may be spent on “any proper county purpose”).

      Thus, in this case, as in Salinas, “the constitutional infirmity” is that article

102.011(a)(3) and (b) do not direct the funds collected from criminal defendants for

the “Summoning Witness/Mileage” fee to be used in a manner that would make them

a court cost (i.e., for something that is a legitimate criminal justice purpose).14 See

523 S.W.3d at 109 n.26, 110 n.36; see also Peraza, 467 S.W.3d at 517–18 (“[I]f [a]

statute under which court costs are assessed . . . provides for an allocation

of . . . court costs to be expended for legitimate criminal justice purposes, then the

statute allows for a constitutional application that will not render the courts tax

gatherers in violation of the [S]eparation of [P]owers clause.” (internal footnote


14
      It may be helpful to look at the necessary inquiry that we must make in this case as
      a two-step process. First, we must ask whether article 102.011(a)(3) and (b) direct
      the funds collected from criminal defendants for the “Summoning
      Witness/Mileage” fee to a particular “place.” Second, if article 102.011(a)(3) and
      (b) do so direct the funds, we must ask whether that particular “place” fulfills a
      legitimate criminal justice purpose. As noted above, article 102.011(a)(3) and (b)’s
      fatal flaw is that they do not actually state where the funds received from criminal
      defendants for the “Summoning Witness/Mileage” fee are to be directed. See TEX.
      CODE CRIM. PROC. ANN. art. 102.011(a)(3), (b); Hernandez v. State, No.
      01-16-000755-CR, --- S.W.3d ---, 2017 WL 3429414, at *6–7 (Tex. App.—
      Houston [1st Dist.] Aug. 10, 2017, no pet. h.) (“The statute does not state where the
      $25 fee is to be directed.”); cf. Salinas, 523 S.W.3d at 107–10 (after first noting
      “Consolidated Court Cost” fee statute directed funds collected to “abused children’s
      counseling” account and “comprehensive rehabilitation” account, then considering
      whether funds contained in either account are used for legitimate criminal justice
      purposes).

                                           23
omitted); Johnson, 2018 WL 1476275, at *4–5 (“Under Salinas, article 102.004(a)’s

failure to direct the funds collected to be used for something that is a legitimate

criminal-justice purpose makes the statute facially unconstitutional, in violation of

article II, section I of the Texas Constitution.”); Toomer, 2017 WL 4413146, at *3;

Hernandez, 2017 WL 3429414, at *7; Casas, 524 S.W.3d at 927 (because “[n]either

the statute authorizing the collection of the emergency-services cost nor its attendant

statutes direct the funds to be used for a legitimate, criminal-justice purpose; . . . it

is a tax that is facially unconstitutional”); Tex. Att’y Gen. Op. No. JC-0158 (“Court

fees that are used for general purposes are characterized as taxes, and a tax imposed

on a litigant . . . violat[es] . . . the constitution.”).   And this means that article

102.011(a)(3) and (b) operate unconstitutionally every time that the “Summoning

Witness/Mileage” fee is collected. See Salinas, 523 S.W.3d at 109 n.26; see also

Johnson, 2018 WL 1476275, at *4–5; Hernandez, 2017 WL 3429414, at *7.

       Further, even if “some of the money collected” for the “Summoning

Witness/Mileage” fee “may ultimately be spent on something that would [constitute]

a legitimate criminal justice purpose,” this would not be “sufficient to create a

constitutional application of the statute because the actual spending of the money is

not what makes a fee a court cost.” Salinas, 523 S.W.3d at 109 n.26; see also

Johnson, 2018 WL 1476275, at *4 (“That funds can be used for a legitimate

criminal-justice purpose does not satisfy the Salinas legal standard . . . .”).


                                             24
      Thus, as the court of criminal appeals concluded in Salinas, article

102.011(a)(3) and (b) do not direct the funds received from criminal defendants for

the “Summoning Witness/Mileage” fee to be expended for a legitimate criminal

justice purpose. 523 S.W.3d at 109–10, 109 n.26, 110 n.36; see also Peraza, 467

S.W.3d at 517–18 (“[I]f [a] statute under which court costs are assessed . . . provides

for an allocation of . . . court costs to be expended for legitimate criminal justice

purposes, then the statute allows for a constitutional application that will not render

the courts tax gatherers in violation of the [S]eparation of [P]owers clause.” (internal

footnote omitted)). Accordingly, I would hold that article 102.011(a)(3) and (b) are

facially unconstitutional as they “allocate[] [the] funds” received for the

“Summoning Witness/Mileage” fee to the general revenue fund of either the county

or the State and allow such money to be spent for purposes other than legitimate

criminal justice purposes in violation of the Separation of Powers clause of the Texas

Constitution.15    See Salinas, 523 S.W.3d at 109–10 (“We cannot uphold the


15
      For reasons expressed in previous cases, I would also hold that Texas Code of
      Criminal Procedure article 102.011(a)(3) and (b) are unconstitutional as applied to
      appellant because the statute violates his constitutional right to confrontation. See
      U.S. CONST. amend. VI; TEX. CONST. art. I, § 10 (right to confrontation); TEX. CODE
      CRIM. PROC. ANN. art. 1.05 (Vernon 2005); Castello v. State, No.
      01-16-00742-CR, --- S.W.3d ---, 2018 WL 2660520, at *7–13 (Tex. App.—
      Houston [1st Dist.] June 5, 2018, pet. filed) (Jennings, J., concurring); London v.
      State, 526 S.W.3d 596, 605–12 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d)
      (Jennings, J., dissenting). However, I recognize that this Court has already rejected
      the arguments presented by appellant. See, e.g., Castello, 2018 WL 2660520, at *5–
      7; Robles v. State, No. 01-16-00199-CR, 2018 WL 1056482, at *6 (Tex. App.—
      Houston [1st Dist.] Feb. 27, 2018, pet. ref’d) (mem. op., not designated for
                                           25
constitutionality of funding th[e] [‘abused children’s counseling’] account . . . when

all the funds in the account go to general revenue.”); Peraza, 467 S.W.3d at 518 n.17

(agreeing “court costs should [generally] relate to the recoupment of judicial

resources”).

      I would sustain appellant’s second issue and modify the trial court’s judgment

to delete the $200 “Summoning Witness/Mileage” fee from the assessed court costs.

See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013) (holding proper

remedy when trial court erroneously includes amounts as court costs is to modify

judgment to delete erroneous amounts); Hernandez, 2017 WL 3429414, at *7.

Further, I continue to urge the legislature to reevaluate the fee system currently in

place in light of the enormous, and potentially unjustified, burden it too often




      publication); Buford v. State, No. 01-16-00727-CR, 2017 WL 6759199, at *6–7
      (Tex. App.—Houston [1st Dist.] Dec. 28, 2017, pet. ref’d) (mem. op., not
      designated for publication); Macias v. State, 539 S.W.3d 410, 421–24 (Tex. App.—
      Houston [1st Dist.] 2017, pet. ref’d); London, 526 S.W.3d at 598–602, 604; see also
      Benge v. Williams, 472 S.W.3d 684, 738 (Tex. App.—Houston [1st Dist.] 2014)
      (Jennings, J., dissenting from denial of en banc reconsideration) (although “we are
      not free to disregard binding precedent,” as appellate court justices, “we . . . are
      certainly free to point out any flaws in the reasoning of the [binding] opinions”),
      aff’d, 548 S.W.3d 466 (Tex. 2018); Jones v. State, 962 S.W.2d 96, 99 (Tex. App.—
      Houston 1997) (Taft, J., concurring) (noting although “we are bound by
      precedent . . . , we are not gagged” by it), aff’d, 984 S.W.2d 254 (Tex. Crim. App.
      1998); Precedent, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining precedent
      as “a decided case that furnishes a basis for determining later cases involving similar
      facts or issues”).

                                            26
imposes “on the poorest members of society ensnared in Texas’ criminal justice

system.”16




                                               Terry Jennings
                                               Justice

Panel consists of Justices Jennings, Bland, and Brown.

Jennings, J., dissenting.

En banc reconsideration was requested. See TEX. R. APP. P. 49.7.

The en banc court has unanimously voted to deny the motion for en banc
reconsideration.

En banc court consists of Chief Justice Radack and Justices Jennings, Keyes, Higley,
Bland, Massengale, Brown, Lloyd, and Caughey.

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




16
      Matt Clarke, Texas Criminal Court Fees are a Tax on Poor Defendants, PRISON
      LEGAL NEWS (Mar. 15, 2014), https://www.prisonlegalnews.org/news
      /2014/mar/15/texas-criminal-court-fees-are-a-tax-on-poor-defendants/      (because
      “people who have been convicted of crimes elicit much less sympathy,” “the myriad
      of criminal court fees and their misuses will most likely continue unabated”); see
      also Eric Dexheimer, Hard-up Defendants Pay as State Siphons Court Fees for
      Unrelated Uses, STATESMAN (Sept. 20, 2012), https://www.statesman.com/news
      /special-reports/hard-defendants-pay-state-siphons-court-fees-for-unrelated-uses/o
      Nyf6HCFKbA4Nlq0UCLiRM/ (“‘We’re trying to squeeze more money from
      people who have a hard time getting jobs because they have a criminal record, or
      have mental illness problems or substance abuse problems’ . . . . ‘These fees are a
      tax on the poor.’” (quoting executive director of the Texas Criminal Justice
      Coalition)).

                                          27
