State’s Motion for Rehearing Granted, Appellant’s Motion for Rehearing
Denied, Affirmed, and Majority Opinion and Concurring and Dissenting
Opinion on Rehearing filed October 11, 2018.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-16-00658-CR

                  JERMAINE EARVIN JOHNSON, Appellant
                                          V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 263rd District Court
                            Harris County, Texas
                        Trial Court Cause No. 1444554

 CONCURRING AND DISSENTING OPINION
           ON REHEARING
      Appellant Jermaine Earvin Johnson challenges his conviction for aggravated
robbery, asserting in his first issue that the trial court lacked jurisdiction over his
case because a grand jury impaneled by a district court other than the trial court
presented the indictment to the trial court. I join section III.A. of the Majority
Opinion on Rehearing, in which the court analyzes this issue and concludes that
the trial court had jurisdiction over this case. But, I part ways with the majority on
the court’s disposition of appellant’s second issue, in which appellant asserts that
article 102.004(a) of the Texas Code of Criminal Procedure violates the separation-
of-powers provision of the Texas Constitution.               Under the Court of Criminal
Appeals’s recent opinion in Salinas v. State,1 this court should find article
102.004(a) facially unconstitutional. Though the majority agrees that the Salinas
precedent applies, the majority concludes article 102.004(a) does not violate the
separation-of-powers provision. Because I disagree with the majority’s analysis of
this issue and with its conclusion that article 102.004(a) does not violate the
separation-of-powers provision, I respectfully dissent.

                            Appellant’s Constitutional Challenge

         In his second issue, appellant asserts that the jury-fee statute violates the
Texas Constitution’s separation-of-powers provision because the jury fee
constitutes an impermissible tax collected by the judiciary, rather than a legitimate
court cost. Article 102.004(a) imposes a $40 fee on a defendant convicted by a
jury in a constitutional county court, a county court at law, or a district court.2           In
bringing a facial challenge to the constitutionality of article 102.004(a), appellant
contends that article 102.004(a) violates the separation-of-powers provision
because the statute does not direct that the funds collected be expended for
something that is a legitimate criminal-justice purpose.3


1
    523 S.W.3d 105, 106–10 (Tex. Crim. App. 2017).
2
    See Tex. Code Crim. Proc. Ann. art. 102.004(a) (West, Westlaw through 2017 1st C.S.).
3
  Under article 102.0045, a person convicted of any offense, other than an offense relating to a
pedestrian or the parking of a motor vehicle, shall pay as a court cost, in addition to all other
costs, a fee of $4 to be used to reimburse counties for the cost of juror services as provided
by Government Code section 61.0015. Tex. Code Crim. Proc. Ann. art. 102.0045(a) (West,
Westlaw through 2017 1st C.S.). The court clerk shall remit the fees collected under this article
to the comptroller in the manner provided by chapter 133, subchapter B of the Local Government
                                                2
          We review the constitutionality of a criminal statute de novo as a question of
law.4 Because one making a facial challenge attacks the statute itself as opposed to
a particular application, the challenger must establish that no set of circumstances
exists under which the statute would be valid.5 Under the proper facial-challenge
analysis, we are to consider only applications in which the statute actually
authorizes or prohibits conduct.6

                                 Separation-of-Powers Provision

          The Texas Constitution expressly guarantees the separation of powers
among the three branches of government.7 Article II, section 1 states:

          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. 8
This section of the Texas Constitution ensures that the powers granted to one
governmental branch may be exercised only by that branch, to the exclusion of the
other branches.9 When one branch of government assumes or is delegated a power
more properly attached to another branch, that assumption or delegation of power

Code. Id. 102.0045(b). The comptroller shall deposit the fees in the jury service fund. Id. The
jury service fund is created in the state treasury. Id. 102.0045(c). Appellant has not challenged
the jury-reimbursement fee under article 102.0045. See id.
4
    Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013).
5
    Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015).
6
    Id.
7
    Tex. Const. art. II, § 1; Salinas, 523 S.W.3d at 106.
8
    Tex. Const. art. II, § 1.
9
    Ex parte Lo, 424 S.W.3d at 28.

                                                    3
violates the separation-of-powers provision.10 If a statute turns the courts into tax
gatherers, then the statute delegates to the courts a power more properly attached to
the executive branch.11

                    The Court of Criminal Appeals’s Opinion in Peraza

          We look to Court of Criminal Appeals’s precedent to determine the legal
standard by which we should analyze appellant’s constitutional challenge. In
Peraza v. State, the Court of Criminal Appeals reviewed its 1942 opinion in Ex
parte Carson, in which the high court found a $1 library-fund court cost invalid
because the court cost was neither “necessary nor incidental to the trial of a
criminal case.”12 Though the Carson case did not involve an allegation that the
court cost violated the Texas Constitution’s separation-of-powers provision, the
intermediate court of appeals in Peraza relied upon the Carson precedent in
determining that the statute in Peraza violated the Texas Constitution’s separation-
of-powers provision.13 The Court of Criminal Appeals in Peraza concluded that
“necessary and incidental to the trial of a criminal case” should not be the legal
standard for determining whether court-cost statutes violate the separation-of-
powers provision.14 The high court based this decision on its conclusion that the
rejected standard would be “too limiting” and would “ignore the legitimacy of
costs that, although not necessary to, or an incidental expense of, the actual trial of
a criminal case, may nevertheless be directly related to the recoupment of costs of
judicial resources expended in connection with the prosecution of criminal cases

10
     Salinas, 523 S.W.3d at 106–07.
11
     Id. at 107.
12
  Ex parte Carson, 159 S.W.2d 126, 130 (Tex. Crim. App. 1942); see Peraza, 467 S.W.3d at
515–17.
13
     See Peraza, 467 S.W.3d at 512–13; Ex parte Carson, 159 S.W.2d at 127–30.
14
     See Peraza, 467 S.W.3d at 517.

                                               4
within our criminal justice system.”15

           The Peraza court held that, “if the statute under which court costs are
assessed (or an interconnected statute) provides for an allocation of such court
costs to be expended for legitimate criminal-justice purposes, then the statute
allows for a constitutional application that will not render the courts tax gatherers
in violation of the separation of powers clause.”16 For the purposes of this legal
standard, the Peraza court stated that a criminal-justice purpose is one that relates
to the administration of the criminal-justice system and that courts must determine
the legitimacy of a purported criminal-justice purpose on a statute-by-statute, case-
by-case basis.17 The Peraza court also emphasized that the challenger shouldered
the burden of establishing that the statute operates unconstitutionally in all possible
circumstances.18 The Peraza court indicated that a party asserting a facial
challenge to the constitutionality of a court-costs statute under the separation-of-
powers provision must show that no circumstance exists under which the statute or
an interconnected statute provides for an allocation of such court costs to be
expended for legitimate criminal-justice purposes.19

           In Peraza, the challenged statute required that the court costs collected be
sent to the comptroller and that the comptroller deposit thirty-five percent of the
funds into the state treasury to the credit of the state highway fund and sixty-five
percent of the funds to the credit of the criminal-justice planning account in the
general revenue fund.20 The Peraza court noted that article 102.056 of the Code of

15
     Id.
16
     Id. (footnote omitted).
17
     Id. at 517–18.
18
     See id. at 516.
19
     See id. at 517–19.
20
     See Tex. Code Crim. Proc. Ann. art. 102.020(e),(h) (West 2010); Peraza, 467 S.W.3d at 519–
                                                5
Criminal Procedure requires that funds in the criminal-justice planning account be
used to reimburse law-enforcement agencies for expenses incurred in collecting a
DNA specimen from every person charged with certain crimes.21 Even if the court
costs deposited into the criminal-justice planning account were used to fund
criminal-justice projects unrelated to managing the statewide DNA database, the
funds still would be used for legitimate criminal-justice purposes.22

         As to the funds deposited into the state treasury to the credit of the state
highway fund, Government Code section 411.145 requires that these funds be used
to defray the cost of administering the part of the Government Code governing the
collection and management of DNA samples, which the Peraza court deemed a
legitimate criminal-justice purpose.23 The Peraza court held that the challenger
had not met his burden of showing that it was impossible for the court-cost statute
to operate constitutionally under any circumstance.24 The court-cost statute
challenged in Peraza did not involve the recoupment of costs necessary and
incidental to the trial of a criminal case.25              Nonetheless, the Peraza court
articulated a single legal standard for determining whether a party has shown that a
court-cost statute facially violates the Texas Constitution’s separation-of-powers
provision, and the high court did not state that this standard would differ depending



21.
21
     See Peraza, 467 S.W.3d at 518–19.
22
   See Peraza, 467 S.W.3d at 519 (concluding that “[t]he statutory scheme allocating these
resources to the criminal-justice planning account are required, via interconnected statutory
provisions, to be expended for legitimate criminal-justice purposes”).
23
     See Tex. Gov’t Code Ann. § 411.145 (West 2010); Peraza, 467 S.W.3d at 519–21.
24
     Peraza, 467 S.W.3d at 521.
25
     See Tex. Code Crim. Proc. Ann. art. 102.020; Peraza, 467 S.W.3d at 518–21.

                                                6
on the type of court-cost statute.26

                    The Court of Criminal Appeals’s Opinion in Salinas

          Two years later, in Salinas v. State, the Court of Criminal Appeals addressed
the constitutionality of a statute requiring every convicted felon to pay $133 as a
court cost.27 Though the statute contained an express provision allocating the court
costs among various accounts, the high court concluded that two of the accounts
did not qualify as an allocation of funds to be expended for legitimate criminal-
justice purposes and to that extent the statute was facially unconstitutional in
violation of the separation-of-powers provision.28

          The Salinas court said that it was applying the legal standard from Peraza.29
As to the legal standard required to show that a court-cost statute facially violates
the separation-of-powers provision, the teachings of Peraza and Salinas are quite
similar.30 Nonetheless, the Salinas court used different words to describe the legal
standard.31 Though the Peraza court spoke in terms of statutes “provid[ing] for an
allocation of such court costs to be expended for a legitimate criminal justice
purpose,” the Salinas court stated that “Peraza requires that the relevant statutes
26
    See Peraza, 467 S.W.3d at 513–21. The majority purports to apply the legal standards from
Peraza and Salinas (which the majority concludes are the same) to today’s case, even though the
statute in today’s case involves the recoupment of costs that are necessary and incidental to the
trial of a criminal case. See ante at 8–18 & n.3. The majority concludes that it is unnecessary to
address whether a separate legal standard applies in recoupment cases because appellant has not
shown that the statute facially violates the separation-of-powers provision under the Salinas
standard. See ante at 18 n.3.
27
     See 523 S.W.3d 103, 106–10 (Tex. Crim. App. 2017).
28
     See id.
29
  See id. at 107 (reciting legal standard from Peraza); id. at 109 n. 26 (assertng that the State and
the dissenting judges misunderstood Peraza and stating what the Salinas court concluded is
required under Peraza).
30
     See id. at 106–10; Peraza, 467 S.W.3d at 513–21.
31
     See Salinas, 523 S.W.3d at 106–10; Peraza, 467 S.W.3d at 513–21.

                                                 7
direct that the funds be used for something that is a legitimate criminal justice
purpose.”32 In finding the statute at issue unconstitutional, the Salinas court
concluded that the failure of any statute to direct that the court costs be used for a
legitimate criminal-justice purpose alone suffices to show that the statute imposing
the court cost facially violates the separation-of-powers provision:

          Because the constitutional infirmity in this case is the statute’s failure
          to direct the funds to be used in a manner that would make it a court
          cost (i.e., for something that is a [legitimate] criminal justice purpose),
          the statute operates unconstitutionally every time the fee is collected,
          making the statute unconstitutional on its face.33
The Salinas court emphasized twice in broad language that it found the statute
facially unconstitutional because the statute failed to direct the funds to be used for
a legitimate criminal-justice purpose.34 The high court stated that courts should
base the determination of what constitutes a legitimate criminal-justice purpose on
what the governing statute says about the intended use of the funds, not on whether
the funds actually are used for a legitimate criminal-justice purpose.35

          The Salinas case did not involve a statute under which the court recoups
costs that are necessary and incidental to the trial of a criminal case, nor did
Salinas involve a statute that was silent as to the allocation of the court costs
collected.36 Yet, the Salinas court used broad language and did not mention any
exception for such statutes.37 Even presuming that appellant’s separation-of-
powers challenge does not fall within the Salinas court’s holding, the high court’s
32
     Compare Salinas, 523 S.W.3d at 109 n. 26, with Peraza, 467 S.W.3d at 517.
33
     Salinas, 523 S.W.3d at 109 n. 26 (emphasis in original).
34
     See id. at 109–10, nn. 26 & 36.
35
     See id. at 107.
36
     See id. at 106–10.
37
     See id.

                                                  8
statements constitute deliberate and unequivocal declarations of the law made after
mature consideration and for future guidance of the bench and bar.38 As judicial
dicta, the Salinas court’s declarations bind this court.39 Thus, the Salinas decision
requires this court to apply the legal standard in that case to all facial, separation-
of-powers challenges to court-cost statutes.40

         Showing that a statute facially violates a constitutional provision ordinarily
presents a mighty challenge and a heavy burden, but under Salinas, to show that a
court-cost statute on its face violates the separation-of-powers provision, a
challenger need only show that neither the court-cost statute nor any
interconnected statute directs that the funds collected under the court-cost statute
be expended for something that is a legitimate criminal-justice purpose.41 The
majority purports to apply the Salinas legal standard to this case.42 The Salinas
standard applies to article 102.004(a), even though the statute appears to involve
recoupment of costs incurred by the county that are necessary and incidental to the
trial of a criminal case, and even though the statute is silent as to the allocation of


38
  See Salinas, 523 S.W.3d at 106–10; Murray v. State, 261 S.W.3d 255, 257 (Tex. App.—
Houston [14th Dist.] 2008), aff’d, 302 S.W.3d 874 (Tex. Crim. App. 2009).
39
  See Murray, 261 S.W.3d at 257; see also Cervantes-Guevara v. State, 532 S.W.3d 827, 832
(Tex. App.—Houston [14th Dist.] 2017, no pet.) (holding that when the Court of Criminal
Appeals “has deliberately and unequivocally interpreted the law in a criminal matter, we must
adhere to its interpretation”).
40
   See id. at 106–10, nn. 26 & 36; Hernandez v. State, No. 01-16-00755-CR, 2017 WL 3429414,
at 6–7 (Tex. App.—Houston [1st Dist.] Aug. 10, 2017, no pet. h.) (applying Salinas legal
standard to court-court statute that was silent as to the allocation of the court costs collected and
that involved the recoupment of costs necessary and incidental to the trial of a criminal case).
41
     See Salinas, 523 S.W.3d at 106–10, nn. 26 & 36; Hernandez, 2017 WL 3429414, at 6–7.
42
   See ante at 8–18 & n.3. The majority concludes that it is unnecessary to address whether a
separate legal standard applies in recoupment cases because appellant has not shown that the
statute facially violates the separation-of-powers provision under the Salinas standard. See ante
at 18 n.3.

                                                 9
the court costs collected.43 Though the Salinas legal standard is worded differently
from the Peraza legal standard, the Salinas legal standard is not inconsistent with
the result in Peraza because the Peraza court indicated that the court-cost statutes
and interconnected statutes directed that the funds collected be expended for
something that is a legitimate criminal-justice purpose.44

                              The Language of Article 102.004

Article 102.004, entitled “Jury Fee,” provides:

          (a) A defendant convicted by a jury in a trial before a justice or
          municipal court shall pay a jury fee of $3. A defendant in a justice or
          municipal court who requests a trial by jury and who withdraws the
          request not earlier than 24 hours before the time of trial shall pay a
          jury fee of $3, if the defendant is convicted of the offense or final
          disposition of the defendant’s case is deferred. A defendant convicted
          by a jury in a county court, a county court at law, or a district court
          shall pay a jury fee of $40.
          (b) If two or more defendants are tried jointly in a justice or municipal
          court, only one jury fee of $3 may be imposed under this article. If the
          defendants sever and are tried separately, each defendant convicted
          shall pay a jury fee.
          (c) In this article, “conviction” has the meaning assigned by Section
          133.101, Local Government Code.45

Article 102.004 does not allocate the jury fee to any specific fund, nor does the
statute give any direction as to how the funds collected should be expended.46

          On original submission appellant and the State agreed that the funds
collected under this statute are deposited into the county’s general fund. Shifting


43
     See Salinas, 523 S.W.3d at 106–10, nn. 26 & 36; Hernandez, 2017 WL 3429414, at *6–7.
44
     See Peraza, 467 S.W.3d at 513–21.
45
     Tex. Code Crim. Proc. Ann. art. 102.004 (West, Westlaw through 2017 1st C.S.).
46
     See id.

                                                10
its position on rehearing, the State now maintains that the funds collected are
deposited into the fund referenced in Local Government Code section
113.004(b)(1).47 In either case, under article 102.004’s unambiguous language, the
statute does not direct that the funds collected be expended for something that is a
legitimate criminal-justice purpose.48

            That funds can be used for a legitimate criminal-justice purpose does not
satisfy the Salinas legal standard, under which we must determine what constitutes
a legitimate criminal-justice purpose based on what article 102.004 and any
interconnected statute say about the intended use of the funds, not on the actual use
of the funds.49 In Salinas, the Court of Criminal Appeals concluded that directing
court costs to fund the “Comprehensive Rehabilitation” account — a general-
revenue fund dedicated to providing rehabilitation services — violated the Texas
Constitution’s separation-of-powers provision.50 In rejecting the argument that the
account assists individuals with rehabilitation from injuries that easily could be
caused by crime, the Court of Criminal Appeals noted that the statute did not (1)
describe the functions or services being funded, (2) impose a criminal-justice
restriction on the use of the funds, or (3) mention a criminal-justice purpose.51
Under Salinas, to pass muster under the separation-of-powers provision, article
102.004 or an interconnected statute must direct that the funds collected be
expended for something that is a legitimate criminal-justice purpose.52 Like Local
Government Code section 133.102, which the Court of Criminal Appeals found

47
     See Tex. Local Gov’t Code Ann. § 113.004 (West, Westlaw through 2017 1st C.S.).
48
     See Tex. Code Crim. Proc. Ann. art. 102.004.
49
     See Salinas, 523 S.W.3d at 106–10, nn. 26 & 36; Hernandez, 2017 WL 3429414, at 6–7.
50
     See id. at 107–08.
51
     See id. at 108.
52
     See id. at 106–10, nn. 26 & 36.

                                                11
unconstitutional, article 102.004(a) fails to limit the use of the funds collected to
serving a criminal-justice purpose.53 Indeed, article 102.004 does not say anything
about how the funds collected should be expended or where they should be held.54

          On rehearing, the State suggests that Local Government Code section
113.004 is an interconnected statute, under which the Legislature directs that the
funds collected under article 102.004 be expended for something that is a
legitimate criminal-justice purpose.           Local Government Code section 113.004,
entitled “Classes of County Funds,” provides:

          (a) The county treasurer shall divide the funds received by the
          treasurer’s office into three classes. The treasurer shall appropriate the
          money in each class of funds to the payment of the claims registered
          in the corresponding class of claims.
          (b) The classes of funds consist of:
                 (1) jury fees, money received from the sale of estrays, and
                 occupation taxes;
                 (2) money received under the provisions of a road and bridge
                 law, including penalties recovered from railroads for the failure
                 to repair crossings, and all fines and forfeitures; and
                 (3) other money received by the treasurer’s office that is not
                 otherwise appropriated by this section or by the commissioners
                 court.
          (c) The commissioners court, as it considers proper, may require other
          accounts to be kept, creating other classes of funds. The court may
          require scrip to be issued against those accounts and to be registered
          accordingly.
          (d) The commissioners court by order may transfer money on hand
          from one fund to another as it considers necessary, but amounts that
          belong to the first class of funds may not be transferred from the
          payment of claims registered in that class unless there is an excess
53
  Compare Local Govt. Code Ann. § 133.102 (West, Westlaw through 2017 1st C.S.) with Tex.
Code Crim. Proc. Ann. art. 102.004.
54
     See Tex. Code Crim. Proc. Ann. art. 102.004.

                                                12
          amount in that class.55

Section 113.004 directs that the county treasurer shall divide the funds received by
the treasurer’s office into three classes.56 The treasurer must appropriate the money
in each fund to the payment of claims registered in the class of claims
corresponding to the fund.57 The statute requires the treasurer to put the jury fees
the treasurer’s office receives into the first fund.58 The commissioners court may
transfer money on hand from one fund to another as it considers necessary, but
amounts in the first fund may not be transferred from the payment of claims
registered in that fund unless there is an excess amount in that class.59

          Though section 113.004 only applies to funds received by a county
treasurer’s office, neither the State nor the majority cite any statute requiring that
the funds collected under article 102.004 be forwarded to a county treasurer’s
office.        Without such a statute, section 113.004 cannot direct that the funds
collected under article 102.004 be expended for a legitimate criminal-justice
purpose because even if the statute required that the funds received by a county
treasurer’s office be used for such a purpose, no statute requires that the funds
collected under article 102.004 be given to the county treasurer’s office.60

          In addition, this court may presume, without deciding, that the jury fees paid
under article 102.004 are funds received by the treasurer’s office that are placed in



55
     Tex. Local Gov’t Code Ann. § 113.004 (West, Westlaw through 2017 1st C.S.).
56
     See id. § 113.004(a).
57
     See id.
58
     See id. § 113.004(b).
59
     See id. § 113.004(d).
60
     See Salinas, 523 S.W.3d at 106–10, nn. 26 & 36; Hernandez, 2017 WL 3429414, at 6–7.

                                               13
the first fund under Local Government Code section 113.004.61 Yet, even under
this presumption, section 113.004 allows the money in the first fund to be paid for
any claim “registered in the corresponding class of claims,” without any direction
that the money be expended for something that is a legitimate criminal-justice
purpose.62 The State has not cited and research has not revealed any statute that
restricts the nature of the class of claims that may be registered against the first
fund under Local Government Code section 113.004. Neither section 113.004 nor
any other statute limits the use of the money in the first fund to purposes that are
legitimate criminal-justice purposes.63 If and when the first fund contains an
excess amount, section 113.004 allows the commissioners court to transfer the
money in the first fund to another fund if the commissioners court deems it
necessary, without any restriction on how the money should be used.64 Like the
statute in Salinas, section 113.004 does not (1) describe the functions or services
being funded by the first fund, (2) impose a criminal-justice restriction on the use
of the first fund, or (3) mention a criminal-justice purpose.65 Under the statute’s
clear text, section 113.004 does not direct that the funds collected under article
102.004 be expended for a legitimate criminal-justice purpose.66

          According to the majority, section 113.004 provides that “the monies in the
first fund may be spent only on expenses relating to the first fund, which expressly
includes juries.”67          Section 113.04 contains no such restriction.68   Rather, the

61
     See id. § 113.004 (a),(b).
62
     See id. § 113.004.
63
     See id.
64
     See id. § 113.004(d).
65
     See Salinas, 523 S.W.3d at 108.
66
     See Tex. Local Gov’t Code Ann. § 113.004.
67
     Ante at 17.

                                                 14
statute allows the first fund to be used to pay any claim “registered in the
corresponding class of claims,” without requiring that the corresponding class of
claims for the first fund relate to juries, estrays, or occupation taxes.69

          In any event, even under the majority’s interpretation of section 113.004, the
majority concludes that claims “registered in the corresponding class of claims”
against the first fund must relate to juries, estrays, or occupation taxes.70 But, even
if the statute so provided, the statute still would allow the first fund to be used to
pay for matters relating to juries in civil cases, estrays, and occupation taxes, none
of which would amount to a legitimate criminal-justice purpose.71 Thus, even
under the majority’s construction of section 113.004, the statute does not direct
that the funds collected under article 102.004 be expended for a legitimate
criminal-justice purpose.72

          Though the majority states in conclusory terms that section 113.004
“mandates that jury fees collected under article 102.004 be used for some
legitimate criminal justice purpose,”73 under its unambiguous language, section
113.004 contains no such mandate.74 Some statutes direct that the court clerk
forward the funds collected under a court-cost statute to the county treasurer with



68
     See Tex. Local Gov’t Code Ann. § 113.004.
69
  See id. An “estray” is “[a] valuable tame animal found wandering and ownerless[,] an animal
that has escaped from its owner and wanders about.” Black’s Law Dictionary 572 (7th ed.
1999).
70
     See ante at 17.
71
     See Salinas, 523 S.W.3d at 107.
72
     See Tex. Local Gov’t Code Ann. § 113.004.
73
     Ante at 17.
74
     See Tex. Local Gov’t Code Ann. § 113.004.

                                                 15
the requirement that the funds be used for a legitimate criminal-justice purpose.75
Section 113.004 is not one of these statutes.76 Under the clear and unambiguous
text of section 113.004, that statute does not mandate that funds collected under
article 102.004 be expended for a legitimate criminal-justice purpose, and the
majority errs in adding this mandate to section 113.004 under the guise of
interpretation.77

          On rehearing, the State also cites Government Code section 61.001(b) for
the proposition that the reimbursement of juror expenses under section 61.001(a)
must be paid out of the county’s jury fund.78 Presuming, without deciding, that the
jury fund to which section 61.001(b) refers is the first fund under Local
Government Code section 113.004(b) and that section 61.001(b) requires the
reimbursement of juror expenses to be paid out of this fund, this court still could
not fairly read the text of section 61.001 as directing that the funds collected under
article 102.004 be expended for a legitimate criminal-justice purpose.79 Nor could
this court conclude under a fair reading of the statute that the statute requires that
the money in the jury fund be used only for legitimate criminal-justice purposes.80


75
   See, e.g., Tex. Code Crim. Proc. Ann. art. 102.022 (West, Westlaw through 2017 1st C.S.)
(requiring court clerk to deposit court cost collected under the statute in the county treasury or
municipal treasury, as applicable, and requiring the treasurer to send the funds to the comptroller
with the restriction that the funds be used only by the Texas Commission on Law Enforcement
for certain purposes).
76
     See Tex. Local Gov’t Code Ann. § 113.004.
77
  See O’Brien v. State, 544 S.W.3d 376, 384 (Tex. Crim. App. 2018) (stating that “[i]f the plain
language [of a statute] is clear and unambiguous, our analysis ends because the Legislature must
be understood to mean what it has expressed, and it is not for the courts to add or subtract from
such a statute”) (internal quotations omitted).
78
     See Tex. Gov’t Code Ann. § 61.001(a), (b) (West, Westlaw through 2017 1st C.S.).
79
     See id.
80
     See id. § 61.001.

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           Under the Salinas legal standard, appellant has shown that article 102.004
facially violates the separation-of-powers provision because neither article 102.004
nor an interconnected statute directs that the funds collected under article
102.004(a) be expended for something that is a legitimate criminal-justice
purpose.81 The State cites Davis v. State, in support of its position that the jury-fee
statute is constitutional. In Davis, the First Court of Appeals held that Texas Code
of Criminal Procedure article 102.005, which authorizes courts to collect a $40
clerk’s fee, was not facially unconstitutional under the separation-of-powers
provision.82        But, Davis differs in key respects. The appellant in Davis
“acknowledge[d] that the statutory purposes for the fee are constitutional.”83 In
addition, the Davis court applied the Peraza legal standard rather than the Salinas
legal standard that applies to today’s case.84

           Under Salinas, the failure of article 102.004 or an interconnected statute to
direct the funds collected to be used for something that is a legitimate criminal-
justice purpose makes article 102.004(a) facially unconstitutional, in violation of
article II, section I of the Texas Constitution.85

                                           Conclusion

           Under Salinas, article 102.004(a), which imposes a $40 jury fee, on its face
violates article II, section I of the Texas Constitution. Thus, this court should

81
     See Salinas, 523 S.W.3d at 106–10, nn. 26 & 36; Hernandez, 2017 WL 3429414, at 6–7.
82
     See Davis v. State, 519 S.W.3d 251, 257 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).
83
     Id.
84
     See id.
85
     See Salinas, 523 S.W.3d at 107–10; Hernandez, 2017 WL 3429414, at 6–7.



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sustain appellant’s second issue (making it unnecessary to address appellant’s third
issue), modify the judgment to delete the unconstitutional fee, and affirm the trial
court’s judgment as modified.



                                /s/   Kem Thompson Frost
                                      Chief Justice



Panel consists of Chief Justice Frost and Justices Boyce and Jewell (Jewell, J.,
majority).
Publish — TEX. R. APP. P. 47.2(b).




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