             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                      NO. PD-1042-18



                             RUBEN LEE ALLEN, Appellant

                                              v.

                                 THE STATE OF TEXAS

ON APPELLANT’S AND STATE’S PETITIONS FOR DISCRETIONARY REVIEW
               FROM THE FIRST COURT OF APPEALS
                       HARRIS COUNTY

       K EEL, J., filed a concurring and dissenting opinion.

                    CONCURRING AND DISSENTING OPINION

       The idea that a court cost might really be a tax because of the separation-of-powers

doctrine is a recent hybrid of doubtful stock. We should root it out now.

       Our separation-of-powers clause has never substantively changed. Compare T EX.

C ONST. art. II, § 1 with T EX. C ONST. OF 1845 art. II, § 1; T EX. C ONST. OF 1861 art. II, §

1; T EX. C ONST. OF 1866 art. II, § 1; T EX. C ONST. OF 1869 art. II, § 1. And for more than

a century it was no impediment to statutes that directed court costs to the State treasury
                                                     Allen Concurring and Dissenting—Page 2

without dedicating them to particular purposes. T EX. C ODE C RIM. P ROC. Art. 956 (1856);

T EX. C ODE C RIM. P ROC. Art. 1061 (1879) (court costs directed to State treasury); Act of

March 19, 1846, 1st Leg., An Act Defining the Duties of State Treasurer, § 5, reprinted in

2 H.P.N. Gammel, The Laws of Texas 1822–1897, at 1317 (Austin, Gammel Book Co.

1898) (1846 law directing state treasurer to keep a single account for State property and

money); T EX. R EV. C IV. S TAT. Art. 2769 (1879) (same); T EX. C ODE C RIM. P ROC. art.

1059 (1879) (court costs not directed to particular expenditures).

       Peraza, however, overlooked our legal history and relied on Ex parte Carson, 159

S.W.2d 126 (Tex. Crim. App. 1942) (orig. op. and op. on reh’g), to hold that court costs

might really be taxes because of the separation-of-powers doctrine. Peraza v. State, 467

S.W.3d 508, 517 (Tex. Crim. App. 2015). That reliance was misplaced. Carson never

used the words “separation” or “powers” or any variations of them, it did not cite article

II, section 1 of the Texas Constitution, and its only use of the noun “tax” meant

“assessment.” Carson, 159 S.W.2d at 127 (“We, therefore, conclude, as several states

have, that the tax imposed by the bill is not and cannot be logically considered a proper

item of cost in litigation, particularly in criminal cases.”). Carson was not a separation-

of-powers case and did not try to distinguish between court costs and taxes. Peraza’s

misreading of it created a separation-of-powers issue where none existed before.

       Peraza also relied on Weir v. State, 278 S.W.3d 364 (Tex. Crim. App. 2009), for

the proposition “that court costs should be related to the recoupment of costs of judicial
                                                     Allen Concurring and Dissenting—Page 3

resources.” Peraza, 567 S.W.3d at 517 (emphasis added). But Weir said no such thing.

Weir held that the Legislature intended the court cost statute at issue there to be “a

nonpunitive ‘recoupment of the costs of judicial resources expended in connection with

the trial of the case.’” Weir, 278 S.W.3d at 366. Weir did not say that court costs

generally must be such a recoupment.

       Peraza’s last-resort authority was out-of-state cases, from one of which it imported

an angst about courts becoming “tax gatherers.” Peraza, 467 S.W.3d at 516–17. The

problem was that the out-of-state cases shed no light on the meaning of the Texas

Constitution’s separation-of-powers provision.

       On the strength of these underpinnings, Peraza decided that a court cost statute

offends separation of powers unless it dedicates the money to a legitimate criminal justice

purpose, i.e., one “that relates to the administration of our criminal justice system.” Id. at

517–18. But the criminal justice system is not a branch of government, so Peraza’s

holding makes little sense in a separation-of-powers context, especially since it upheld a

statute that directed the judiciary to collect a fee funding an executive branch agency. Id.

at 518–20; T EX. G OV’T C ODE § 411.142 (DPS to manage DNA database); T EX. G OV’T

C ODE, Title 4, Subtitle B (DPS is part of the executive branch).

       Nevertheless, Peraza led to Salinas v. State, 523 S.W.3d 103, 109–10 (Tex. Crim.

App. 2017), in which this Court struck two parts of a court-cost statute for their failures to
                                                     Allen Concurring and Dissenting—Page 4

fund criminal justice purposes. See T EX. L OCAL G OV’T C ODE § 133.102 (2013) (hereafter

“Section 133.102”). Salinas erred in two ways.

       The first error was to overlook the underlying purpose and constitutional basis for

Section 133.102. The purpose of Chapter 133 of the Local Government Code was:

       to consolidate and standardize:

              (1) collection of fees in criminal and civil matters by:

                     (A) an officer of a court for deposit in a county
                     or municipal treasury; or

                     (B) an officer of a county or municipality for
                     deposit in the county or municipal treasury, as
                     appropriate;

              (2) remittance of those fees to the comptroller as required by
              this chapter and other law; and

              (3) distribution of those fees by the comptroller to the proper
              accounts and funds in the state treasury.

T EX. L OCAL G OV’T C ODE § 133.001. The constitutional basis for the program was Texas

Constitution Article III, section 46(b). Given that constitutional authorization, any

separation-of-powers concern about the fees collected under Section 133.102 should have

been dispelled.

       Salinas’s second error was to violate the separation-of-powers doctrine. The State

budget is the constitutional domain of the legislative and executive branches. See T EX.

C ONST. art. IV, § 9 (Governor’s duty to present the budget to the Legislature); id. art. IV,

§ 14 (Governor’s authority to veto the budget and line items within the budget); id. art.
                                                     Allen Concurring and Dissenting—Page 5

VIII, § 22(b) (Legislature’s authority to raise the appropriations limit in emergencies); id.

art. III, § 49a(b) (Legislature’s duty to enact a balanced budget). Undue interference with

another branch’s constitutionally assigned powers is a separation-of-powers violation.

Vandyke v. State, 538 S.W.3d 561, 571 (Tex. Crim. App. 2017). Salinas unduly

interfered with constitutionally assigned executive and legislative powers by striking part

of the court-cost statute. Salinas thus violated the separation-of-powers doctrine.

       In any event, Peraza and Salinas depend on a fiction. As the State Prosecuting

Attorney documents, the State of Texas spends more on the criminal justice system than it

collects in court costs. And as the district attorney observes, money is fungible. Thus,

any court cost directed to the general revenue fund is directed to a criminal justice

purpose.

       We have seventeen—and counting—court cost cases pending review. We would

correctly resolve them all by overruling Peraza and Salinas. Doing so would put an end

to this noxious court-cost litigation without offending stare decisis. See Febus v. State,

542 S.W.3d 568, 575–76 (Tex. Crim. App. 2018) (adhering to poor reasoning does not

serve the goals of stare decisis). Since the majority instead takes a narrow approach that

disregards the State’s arguments and dismisses its cross petition, I dissent to its methods

and concur only in the result it reaches.

Filed: November 20, 2019

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