                     PD-1487&1488-15                                   PD-1487&1488-15
                                                             COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                          Transmitted 11/17/2015 10:30:20 AM
                                                             Accepted 11/17/2015 2:46:41 PM
                                                                              ABEL ACOSTA
                      NO. __________________                                          CLERK




                             TO THE

COURT OF CRIMINAL APPEALS
                           OF TEXAS

                          ***************

           MICHAEL DON DENTON
                                            Petitioner,
                                v.

             THE STATE OF TEXAS
                                            Respondent.
                          ***************
 PETITION FOR DISCRETIONARY REVIEW IN CAUSE NUMBERS
  07-15-181-CR AND 07-15-182-CR FROM THE SEVENTH COURT
      OF APPEALS AND 18,607-B AND 18, 608-B FROM THE
         181st DISTRICT COURT OF RANDALL COUNTY
                          ***************

PETITION FOR DISCRETIONARY REVIEW
                          ***************

                                     John Bennett
                                     Post Office Box 19144
                                     Amarillo, TX 79114
 November 17, 2015                   Telephone: (806) 282-4455
                                     Fax: (806) 398-1988
                                     AppealsAttorney@gmail.com
                                     State Bar No. 00785691
                                     Attorney for the Petitioner

        THE PETITIONER REQUESTS ORAL ARGUMENT
                IDENTITY OF PARTIES AND COUNSEL

1.   Trial Court Judge

     Hon. John B. Board


2.   Petitioner

     Michael Don Denton

     Trial Counsel:   Terry D. McEachern (State Bar No. 13577801)
                      109 East Sixth Street
                      Plainview, Texas 79072
                      Telephone: (806) 293-2669

     Initial          David Martinez (State Bar No. 13141650)
     Appellate        1663 Broadway Street
     Counsel:         Lubbock, Texas 79401
                      Telephone: (806) 744-1692

     Habeas           Bonita Gunden (State Bar No. 08620450)
     Counsel:         500 South Taylor Street
                      Lobby Box 214
                      Amarillo, Texas 79101
                      Telephone: (806) 324-2370

     Appellate        John Bennett (State Bar No. 00785691)
     Counsel:         P.O. Box 19144
                      Amarillo, Texas 79114
                      Telephone: (806) 282-4455


3.   Respondent

     The State of Texas



                                    2
Trial       Robert A. Love II (State Bar No. 00787925)
Counsel:    Lacy E. Miller (State Bar No. 24034852)
            Randall County Criminal District Attorney’s Office
            2309 Russell Long Boulevard, Suite 120
            Canyon, Texas 79015
            Telephone: (806) 468-5570

Appellate   Kristy L. Wright (State Bar No. 00798601)
Counsel:    Randall County Criminal District Attorney’s Office
            2309 Russell Long Boulevard, Suite 120
            Canyon, Texas 79015
            Telephone: (806) 468-5570




                           3
                                     TABLE OF CONTENTS

Index of Authorities ..............................................................................................5

Statement Regarding Oral Argument ...................................................................8

Statement of the Case............................................................................................8

Statement of Procedural History...........................................................................8

Grounds for Review............................................................................................10

                1.     Where a federal court conditionally grants habeas
         relief under 28 U.S.C. § 2254, ordering that the conviction itself
         will be vacated unless the State affords the petitioner an out-of-
         time direct appeal, do the state courts automatically have
         jurisdiction to hear such an out-of-time appeal?

               2.     Does the Takings Clause of TEX. CONST. ART. I, §
         17, apply solely to matters of eminent domain?

Argument for Ground One..................................................................................10

Argument for Ground Two .................................................................................14

Prayer for Relief..................................................................................................15

Certificate of Compliance ...................................................................................15

Certificate of Service ..........................................................................................16

Opinion and Denial of Rehearing Below.................................. following page 16




                                                          4
                                   INDEX OF AUTHORITIES

Constitutional Provisions

TEX. CONST. ART. I, § 17 (Vernon supp. 2014).................................... 4,10,14

TEX. CONST. ART. V, § 31(c) (Vernon supp. 2014).......................................11


Cases

Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex.Crim.
       App. 1991) .......................................................................................... 11-13

Carmell v. State, 331 S.W.3d 450 (Tex.App. – Fort Worth
     2010, pet. ref’d) ........................................................................................13

Denton v. State, __ S.W.3d __, 2015 WL 5965276 (Tex.App.
     – Amarillo, October 8, 2015) ...................................................................10

Denton v. State, 2010 WL 4260089 (Tex.App. – Amarillo,
     October 8, 2010, no pet.) (not designated for
     publication) .................................................................................................8

Denton v. State, 2010 WL 3943432 (Tex.App. – Amarillo,
     October 8, 2010, no pet.) (not designated for
     publication) .................................................................................................8

Denton v. Stephens, 2015 WL 1239379 (N.D. Tex., March
     17, 2015) (not designated for publication) .................................................9

Ex parte Hood, 304 S.W.3d 397 (Tex.Crim.App. 2010)....................................12

Parr v. State, 206 S.W.3d 143 (Tex.App. – El Paso 2006,
      no pet.) ................................................................................................ 11-13

Passmore v. State, 617 S.W.2d 682 (Tex.Crim.App. 1981)...............................12

Ragston v. State, 424 S.W.3d 49 (Tex.Crim.App. 2014) ...................................12


                                                          5
Reed v. State, 744 S.W.2d 112 (Tex.Crim.App. 1988).......................................12

Rylander v. Palais Royal, Incorporated, 81 S.W.3d 909
     (Tex.App. – Austin 2002, pet. denied) .....................................................14

State v. Morales, 869 S.W.3d 941 (Tex. 1994) ..................................................10

State ex rel Pan American Production Company v. Texas
       City, 157 Tex 450, 303 S.W.3d 780 (Tex. 1957) .....................................14

Texas Workforce Commission v. Midfirst Bank, 40 S.W.3d
      690 (Tex.App. – Austin 2001, pet. denied) ..............................................14


Statutory Provisions

28 U.S.C.A. § 2254 (West 2014).....................................................................4,10

TEX. CODE CRIM. PRO. ANN. Art. 11.07 (Vernon
     supp. 2014) ......................................................................................... 11-12


Rules

TEX. R. APP. P. 66.3(a) ............................................................................... 13-14

TEX. R. APP. P. 66.3(c) .....................................................................................14




                                                       6
                           NO. __________________


                                    TO THE

COURT OF CRIMINAL APPEALS
                                  OF TEXAS

                                ***************

               MICHAEL DON DENTON
                                                    Petitioner,
                                        v.

                 THE STATE OF TEXAS
                                                    Respondent.
                                ***************
    PETITION FOR DISCRETIONARY REVIEW IN CAUSE NUMBERS
     07-15-181-CR AND 07-15-182-CR FROM THE SEVENTH COURT
         OF APPEALS AND 18,607-B AND 18, 608-B FROM THE
            181st DISTRICT COURT OF RANDALL COUNTY
                                ***************

PETITION FOR DISCRETIONARY REVIEW
                                ***************


To the Honorable Judges of the Court of Criminal Appeals:

      COMES NOW Michael Don Denton, petitioner, and submits this petition

for discretionary review in support of his request for a declaration that the court

of appeals had no jurisdiction to hear his appeal, or remand of this cause to the

court of appeals for review of his Takings Clause claim on its merits.


                                        7
           STATEMENT REGARDING ORAL ARGUMENT

      Since an issue of first impression is presented which concerns appellate

jurisdiction, the petitioner requests oral argument.



                       STATEMENT OF THE CASE

      The petitioner pled guilty to two charges of delivery of a controlled

substance and was placed on deferred adjudication community supervision.

Later the trial court proceeded to adjudication and sentenced him to twenty

years’ imprisonment in each case, to run concurrently.



              STATEMENT OF PROCEDURAL HISTORY

      Shortly after the adjudication and sentencing, the petitioner initially filed

a notice of appeal in each case, but on the advice of counsel, later asked that the

appeals be dismissed. The court of appeals dismissed the appeals on October 8,

2010. Denton v. State, 2010 WL 3943432 (Tex.App. – Amarillo, October 8,

2010, no pet.) (not designated for publication); Denton v. State, 2010 WL

4260089 (Tex.App. – Amarillo, October 8, 2010, no pet.) (not designated for

publication). The mandate issued the same day. Represented by new counsel,

the petitioner then filed habeas proceedings in state and then federal court,

claiming among other things denial of effective assistance of appellate counsel.


                                         8
      Ultimately the Magistrate Judge for the United States District Court for

the Northern District of Texas, Amarillo Division, found merit in the

ineffectiveness argument, and recommended granting the writ.              The relief

ordered, though, entailed vacating the petitioner’s convictions in the event the

State had not, within 60 days, afforded him an out-of-time appeal:

      The Writ of Habeas Corpus vacating petitioner's convictions should
      issue unless petitioner is afforded an out of time appeal with the
      assistance of counsel within sixty (60) days from the date of this order.

Denton v. Stephens, 2015 WL 1239379, at *1 (N.D. Tex., March 17, 2015) (not

designated for publication). The Order was issued on March 17, 2015. Id.

      The trial court appointed undersigned counsel to represent the petitioner

in the court of appeals; counsel then duly filed notices of appeal. But otherwise

no action was taken by the parties or the courts until May 18, 2015 – two days

after the federal court deadline expired. On that day the court of appeals issued

a letter directing the parties to show why jurisdiction lay over the appeal.

      In their responses, the appellant asserted that a want of jurisdiction

existed; he also filed a motion in the federal court asking that the federal writ be

issued and the petitioner’s convictions vacated. The Texas Attorney General,

filed a response on the state’s behalf, arguing that jurisdiction lies to hear the

appeal. The Amarillo federal district court denied the motion without prejudice,

pending the state courts’ decision on the jurisdictional question.


                                         9
      Then, after briefing, in a published opinion on October 8, 2015, the

Seventh Court of Appeals found that jurisdiction existed and affirmed the

convictions. Denton v. State, __ S.W.3d __, 2015 WL 5965276 (Tex.App. –

Amarillo, October 8, 2015). A copy of the ruling is attached. A motion for

rehearing was filed on October 12, 2015, but overruled without opinion on

October 22, 2015. A copy of the letter overruling rehearing is also attached.



                         GROUNDS FOR REVIEW

      1.     Where a federal court conditionally grants habeas relief under 28
U.S.C. § 2254, ordering that the conviction itself will be vacated unless the
State affords the petitioner an out-of-time direct appeal, do the state courts
automatically have jurisdiction to hear such an out-of-time appeal?

       2.    Does the Takings Clause of TEX. CONST. ART. I, § 17, apply
solely to matters of eminent domain?



                    ARGUMENT FOR GROUND ONE

       Where a federal court conditionally grants habeas relief under 28 U.S.C. §
2254, ordering that the conviction itself will be vacated unless the State affords
the petitioner an out-of-time direct appeal, do the state courts automatically have
jurisdiction to hear such an out-of-time appeal?

      The “jurisdiction of Texas courts – the very authority to decide cases – is

conferred solely by the constitution and the statutes of the state.” State v.

Morales, 869 S.W.3d 941, 942 (Tex. 1994). Via statutes the Legislature “may



                                        10
delegate to the Supreme Court or” this Court “the power to promulgate such

other rules as may be prescribed by law or this Constitution, subject to such

limitations and procedures as may be provided by law.” TEX. CONST. ART.

V, § 31(c) (Vernon supp. 2014). But jurisdiction “must be expressly given – the

“standard for determining jurisdiction is not whether the appeal is precluded by

law, but whether the appeal is authorized by law.” Ragston v. State, 424 S.W.3d

49, 52 (Tex.Crim.App. 2014) (emphases added).

      Specifically in this regard, the Court has noted that it is “the only court

with jurisdiction in final post-conviction felony proceedings.” Ater v. Eighth

Court of Appeals, 802 S.W.2d 241, 243 (Tex.Crim.App. 1991) (emphasis

added). And based on this and on TEX. CODE CRIM. PRO. Art. 11.07, several

courts of appeals have found that this Court “has the exclusive authority to grant

post-felony conviction relief, such as an out-of-time appeal, if the defendant is

then confined as a result of that final felony conviction.” Parr v. State, 206

S.W.3d 143, 145 (Tex.App. – El Paso 2006, no pet.).

      Accordingly, a federal court’s conditional order vacating a conviction in

the event that an out-of-time appeal is not afforded, as here, appears to invoke

no jurisdiction in the state courts. Such an order does not even require the state

courts to hear an out-of-time appeal – it simply gives the State a chance to save

the convictions by permitting a new appeal.


                                       11
      In these circumstances, the State might well seek an order from this Court,

such as by moving the Court to reconsider the petitioner’s original Article 11.07

application on the Court’s own motion, as the Court has done in previous habeas

applications, e.g. Ex parte Hood, 304 S.W.3d 397 (Tex.Crim.App. 2010). An

appropriate order would vest the court of appeals with jurisdiction to hear the

out-of-time appeal under Ater and Parr. But the State did nothing along these

lines to ensure that jurisdiction would lie to hear the appeal.

      Yet the court of appeals deemed jurisdiction proper based on a footnote to

an old case, Passmore v. State, 617 S.W.2d 682 (Tex.Crim.App. 1981),

overruled on other grounds by Reed v. State, 744 S.W.2d 112 (Tex.Crim.App.

1988). In Passmore this Court wrote that the appellant had “been granted an

out-of-time appeal by virtue of his filing a federal writ of habeas corpus. Id. at

683, n. 1.    But while Passmore does not mention jurisdiction, in a brief

paragraph the court of appeals held that, under Passmore, a federal court itself

may, “via a habeas proceeding,” order an out-of-time state appeal, and “thereby

vest” the state court of appeals “with jurisdiction to entertain the matter” (court

of appeals opinion, attached, p. 3). The brief footnote in question in Passmore

appears to be nothing more than a statement that the federal writ petition was

filed and that an out-of-time appeal was granted – the opinion does not mention

what else may have been done to ensure that jurisdiction would lie.


                                         12
      The court of appeals also cited a case which, while not mentioning Ater or

Parr, deemed jurisdiction proper based entirely on the new notice of appeal

being filed “within the time specified by the federal court in its order.” Carmell

v. State, 331 S.W.3d 450, 454-5, 458 (Tex.App. – Fort Worth 2010, pet. ref’d)

(court of appeals opinion, p. 3). This does not address the situation at hand;

unless the federal court order could itself vested the court of appeals with

jurisdiction to hear the out-of-time appeal, Mr. Carmell’s new notice of appeal –

and that filed recently by the petitioner here – were submitted far more than 30

days after sentencing, and were therefore still untimely. The discussion of

jurisdiction in Carmell addresses mainly the court of appeals’ jurisdiction to

hear matters not mentioned in the federal court’s order – and since the federal

court’s order here does not discuss possible issues to be raised in an out-of-time

appeal, that question here is moot.

      Accordingly, the court of appeals’ opinion – and that of Carmell as well –

both conflict with those of this Court in Ater and Parr.         The conflict is

considered as a factor “in deciding whether to grant discretionary review.”

TEX. R. APP. P. 66.3(a)&(c).




                                       13
                   ARGUMENT FOR GROUND TWO

      Does the Takings Clause of TEX. CONST. ART. I, § 17, apply solely to
matters of eminent domain?

      The petitioner below claimed that part of the court costs charged him

violated the Takings Clause of TEX. CONST., article I, § 17 (Vernon supp.

2014). In response, after finding the issue properly raised, the court of appeals,

citing State ex rel Pan American Production Company v. Texas City, 157 Tex

450, 303 S.W.3d 780 (Tex. 1957), concluded that the Takings Clause applies

only to cases of eminent domain. (Court of Appeals’ Opinion, p. 5).

      But later cases from other courts of appeals have applied the Takings

Clause of Article I, § 17 to situations other than eminent domain, and the Texas

Supreme Court has not seen fit to overturn these holdings. See e.g. Rylander v.

Palais Royal, Incorporated, 81 S.W.3d 909, 915 (Tex.App. – Austin 2002, pet.

denied) (“[State] takings-clause claims are not absolutely limited to eminent

domain”) (emphasis added); Texas Workforce Commission v. Midfirst Bank, 40

S.W.3d 690, 697 (Tex.App. – Austin 2001, pet. denied) (“we will not limit

takings-clause actions to situations involving eminent domain”).

      Again, therefore, the court of appeals’ decision conflicts with those of

other courts of appeals. The case for discretionary review is strengthened by

this. TEX. R. APP. P. 66.3(a) (emphasis added).



                                       14
                           PRAYER FOR RELIEF

      The petitioner therefore prays the Court grant discretionary review and

find a want of jurisdiction at the court of appeals, or remand for analysis of the

Takings Clause claim on its merits, or grant all appropriate relief.

                                             Respectfully submitted,

                                             /s/ JOHN BENNETT
                                             John Bennett
                                             Post Office Box 19144
                                             Amarillo, TX 79114
                                             Telephone: (806) 282-4455
                                             Fax: (806) 398-1988
                                             Email: AppealsAttorney@gmail.com
                                             State Bar No. 00785691
                                             Attorney for the Petitioner




                    CERTIFICATE OF COMPLIANCE

      I certify that this entire PDR contains 2,521 words, and thus within the

prescribed limit. TEX. R. APP. P. 93(i)(2)(D).

                                             /s/ JOHN BENNETT
                                             John Bennett


                                        15
                      CERTIFICATE OF SERVICE

      I certify that a true and correct copy of this PDR has been served by

prepaid U.S. Mail, first class delivery prepaid, on Kristy Wright, Esq., Assistant

Criminal District Attorney for Randall County, by United States Mail, first class

delivery prepaid, to her at 2309 Russell Long Blvd #110, Canyon, TX 79015,

and by email to her at klscrivner@yahoo.com, and on Lisa McMinn, Esq., State

Prosecuting Attorney, by United States Mail, first class delivery prepaid, to her

at P.O. Box 13046, Austin, Texas 78711, and by email to her at

lisa.mcminn@spa.texas.gov, all on November 17, 2015.

                                            /s/ JOHN BENNETT
                                            John Bennett




                                       16
                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                             Nos. 07-15-00181-CR
                                                  07-15-00182-CR


                            MICHAEL DON DENTON, APPELLANT

                                                     V.

                               THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 181st District Court
                                      Randall County, Texas
            Trial Court Nos. 18,607-B & 18,608-B, Honorable John B. Board, Presiding

                                              October 8, 2015

                                                OPINION
                    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      “What a long, strange trip it’s been.”1 And, it doesn’t seem to be over due to the

continued meanderings of the cause before us and the arguments posed by appellant

and his counsel.

      The State indicted Michael Don Denton for delivering controlled substances.

Rather than undergoing trial, he pled guilty to the offenses.          That resulted in the




      1
          “Truckin’” by the Grateful Dead.
adjudication of his guilt being deferred by the trial court. No appeal was taken from the

order memorializing such deferral.

         Eventually, the State moved to have appellant’s guilt adjudicated and such

motions were eventually granted.        Consequently, appellant was convicted.       After

perfecting appeals from the two convictions, he and his attorney represented to this

court that they no longer cared to prosecute the matters. So, we dismissed the appeals.

Nevertheless, several attempts were then made to attack the convictions via petitions

for habeas corpus filed with the Texas Court of Criminal Appeals. When those efforts

proved unsuccessful, appellant sought relief via a federal habeas proceeding

questioning the effectiveness of his appellate counsel.

         Relief ultimately came to appellant in the form of an order issued by the United

States District Court for the Northern District of Texas in Cause No. 2:12-CV-0192.

Therein, the court held: “The Writ of Habeas Corpus vacating petitioner's convictions

should issue unless petitioner is afforded an out of time appeal with the assistance of

counsel within sixty (60) days from the date of this order.” Per this federal court order,

appellant was appointed counsel by the State district court which had pronounced his

guilt.

         Appointed counsel filed notices of appeal stating: “. . . Michael Don Denton,

Defendant in the above-styled and numbered cause . . . having been granted an out-of-

time appeal by the United States District Court for the Northern District of Texas,

Amarillo Division. . . desires to appeal his conviction[s] and sentence[s] to the Seventh

Court of Appeals of Texas.” Despite doing so and after securing a federal court order

effectively directing us to afford him an appeal, he now contends that we have no

jurisdiction to proceed. Also urged before us are two issues. One involves whether


                                             2
appellant is obligated to pay a fine that was not assessed while the other concerns

whether requiring him to pay a particular fee constituted an unlawful taking of property

in violation of the Texas Constitution. We affirm.

       Jurisdiction

       The State conceded that a federal court may 1) order, via a habeas proceeding,

that an applicant be afforded an out-of-time appeal, and 2) thereby vest us with

jurisdiction to entertain the matter. See Carmell v. State, 331 S.W.3d 450 (Tex. App.—

Fort Worth 2010, pet. ref’d). More importantly, the Court of Criminal Appeals has so

recognized. E.g. Passmore v. State, 617 S.W.2d 682, 683 n.1 (Tex. Crim. App. [Panel

Op.] 1981), overruled on other grounds by Reed v. State, 744 S.W.2d 112 (Tex. Crim.

App.1988) (stating that: “On original submission, appellant's conviction was affirmed in a

per curiam opinion on June 30, 1976. Appellant has been granted an out-of-time appeal

by virtue of his filing of a federal writ of habeas corpus. See Passmore v. Estelle, 607

F.2d 662 (5th Cir. 1979).”).    So, after fighting to secure an opportunity to appeal,

securing that opportunity, and then questioning our authority to entertain the appeal,

appellant mistakenly urged that we lack jurisdiction to act.

       $2,000 Fine

       Next, appellant believes he should not have to pay a $2000 fine that was not

imposed upon him after his adjudication of guilt and during the oral pronouncement of

sentence. We agree he should not. Yet, we overrule the issue.

       If one were to look at the appellate record, the trial court did not assess such a

fine either when pronouncing sentence or via its written judgment.          So, contrary to

appellant’s belief, he was not sentenced to pay a $2000 fine. Nor is he entitled to be

reimbursed for paying a fine as part of his sentence that he did not pay.


                                             3
       The judgment does refer to a $2000 fine imposed upon appellant when the trial

court decided to originally defer his adjudication of guilt. Such was permitted by statute.

See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (West Supp. 2014) (stating that a

“judge may impose a fine applicable to the offense and require any reasonable

conditions of community supervision . . . that a judge could impose on a defendant

placed on community supervision for a conviction that was probated and suspended,

including confinement.”).           To the extent that this may be the fine about which he

complains and which was described within the bill of costs as “paid,” appellant should

have raised the matter via appeal from the order deferring his adjudication of guilt. It is

too late to complain once adjudicated guilty, convicted and sentenced. Riles v. State,

452 S.W.333, 338 (Tex. Crim. App. 2015).

       Unconstitutional Taking

       Next, appellant asks whether “. . . TEX. LOCAL GOV’T CODE ANN. §

133.102(e)(7) (Vernon supp. 2010), requiring a defendant convicted of a felony to pay

fees for a public use, violate[s] – as applied to the appellant – the Takings Clause of

Article I, § 17 of the Texas Constitution?”2 He suggests it does. We overrule the issue.

       Instead of addressing the substance of appellant’s argument, the State merely

questions whether it was preserved. That issue seems rather settled in view of recent

       2
           Article 1, § 17 of the Texas Constitution states that:

       No person's property shall be taken, damaged, or destroyed for or applied to public use without
       adequate compensation being made, unless by the consent of such person, and only if the
       taking, damage, or destruction is for:

       (1) the ownership, use, and enjoyment of the property, notwithstanding an incidental use, by:

           (A) the State, a political subdivision of the State, or the public at large; or
           (B) an entity granted the power of eminent domain under law; or

        (2) the elimination of urban blight on a particular parcel of property.

TEX. CONST. art. I, § 17 (amended 2009).

                                                        4
precedent from the Court of Criminal Appeals. It held that “[c]onvicted defendants have

. . . the opportunity to object to the assessment of court costs against them for the first

time on appeal or in a proceeding under article 103.008 of the Texas Code of Criminal

Procedure.” Cardenas v. State, 423 S.W.3d 396, 399 (Tex. Crim. App. 2014). The

proceeding before us is a direct appeal, despite its having arrived via a rather circuitous

route. Additionally, the issue we are being asked to review encompasses an aspect of

the court costs levied upon appellant. Consequently, it can be raised here for the first

time.

        Next, the outcome of the dispute is controlled by State ex rel. Pan Am. Prod. v.

Texas City, 157 Tex. 450, 303 S.W.2d 780 (Tex. 1957). There, our Supreme Court held

that the Texas constitutional prohibition against the governmental taking of private

property without just compensation “has reference solely to the exercise of the right of

eminent domain. . . .” Id. at 782 (involving the levy of a tax). Assessing the fee in

question as a court cost was and is not an exercise in what we commonly know to be

eminent domain. Instead, it is akin to a levy of a tax. As such, it falls outside the scope

of the takings clause. Id.

        What a long, strange trip it’s been and, no doubt, will continue to be. But, at this

stop, we affirm the judgment of the trial court.

                                                   Brian Quinn
                                                   Chief Justice

Publish.




                                              5
                                                                                  FILE COPY




      BRIAN QUINN
       Chief Justice
                                  Court of Appeals                              VIVIAN LONG
                                                                                    Clerk

  JAMES T. CAMPBELL
        Justice
                                  Seventh District of Texas                   MAILING ADDRESS:
  MACKEY K. HANCOCK
        Justice
                                Potter County Courts Building                   P. O. Box 9540
                                                                                  79105-9540
                                 501 S. Fillmore, Suite 2-A
   PATRICK A. PIRTLE
         Justice                 Amarillo, Texas 79101-2449                     (806) 342-2650

                                www.txcourts.gov/7thcoa.aspx

                                     October 22, 2015

John Bennett                                   Warren L. Clark
Attorney at Law                                Kristy Wright
P. O. Box 19144                                Asst. Criminal District Attorney
Amarillo, TX 79114                             Randall County Justice Center
* DELIVERED VIA E-MAIL *                       2309 Russell Long Blvd., Suite 120
                                               Canyon, TX 79015
                                               * DELIVERED VIA E-MAIL *

RE:      Case Number: 07-15-00181-CR, 07-15-00182-CR
         Trial Court Case Number: 18,607-B, 18,608-B

Style: Michael Don Denton v. The State of Texas

Dear Counsel:

         By Order of the Court, Appellant’s Motion for Rehearing is this day overruled.

                                                  Very truly yours,
                                                  Vivian Long
                                                  VIVIAN LONG, CLERK
