Affirmed and Opinion filed December 11, 2018.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-17-00594-CR

                       ALFRED T. MOLIERE, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

                 On Appeal from the Co Crim Ct at Law No 8
                           Harris County, Texas
                      Trial Court Cause No. 2120891

                                 OPINION


      Appellant Alfred T. Moliere appeals his sentence for misdemeanor assault
involving family violence in violation of section 22.01(a)(1) of the Texas Penal
Code. In his first issue, appellant contends Article 42.013 of the Code of Criminal
Procedure, which requires the trial court to make an affirmative finding of family
violence in the judgment, is unconstitutional under Apprendi v. New Jersey, 530 U.S.
466 (2000). Appellant argues that a finding under Article 42.013 increases his
penalty beyond the prescribed statutory maximum by depriving him of his right to
possess a firearm without a finding by the jury. We overrule this issue because
appellant did not preserve it and, in any event, appellant has not shown a violation
of Apprendi.

      In his second and third issues, appellant challenges as facially unconstitutional
two court costs: the $25 district attorney fee authorized by article 102.008(a) of the
Code of Criminal Procedure, and the $40 clerk’s fee authorized by article 102.005(a)
of the Code of Criminal Procedure.         Appellant contends the fees violate the
separation of powers clause of the Texas Constitution because the statutes
authorizing the fees do not direct the fees to be spent for a legitimate criminal justice
purpose, thereby turning the courts into tax gatherers. We overrule these issues
because the costs assessed represent a recoupment of expenses for the trial of the
case. We affirm the trial court’s judgment.

                                    BACKGROUND

      The State charged appellant by information with a misdemeanor offense of
assault involving a family member.         Testimony during the trial revealed that
appellant and the complainant were in a relationship and had two children. While
in the parking lot of a local restaurant, appellant grabbed the complainant by her hair
and punched her in the face multiple times. The jury found appellant guilty of
assaulting the complainant, a person with whom he had a dating relationship. After
the jury’s guilty verdict, the trial court sentenced appellant to confinement for one
year in the Harris County Jail. The trial court also found on the record that:

      this was a – at least a dating relationship and perhaps husband and wife
      relationship. . . . [I]t is clearly an intimate relationship per the law for
      affirmative findings of family violence, which means, sir, that you may



                                           2
        not possess or transfer firearms or fire ammunition under Federal Law.1

The trial court included the family violence finding in the judgment. The judgment
also assessed several costs against appellant, including a “district attorney fee” of
$25.00 and a “district clerk’s fee” of $40.00.

                                    ANALYSIS

        Appellant raises three issues on appeal: (1) a facial constitutional challenge
that article 42.013 violates Apprendi v. New Jersey; (2) a facial constitutional
challenge to the $25 district attorney fee because he argues the revenue from the fee
is directed to the Harris County general fund, allowing the money to be spent for
purposes other than criminal justice purposes; and (3) a facial constitutional
challenge to the $40 district clerk fee for the same reason. We address each issue in
turn.

I.      Appellant has not shown that article 42.013’s requirement of a court
        finding of family violence is facially unconstitutional.

        A.    Appellant did not preserve his facial challenge.
        Appellant argues that article 42.013 is unconstitutional on its face and violates
both his Fourteenth Amendment right to due process and his Sixth Amendment right
to a jury trial. Appellant did not raise this facial constitutional challenge to article
42.013 in the trial court. Failure to raise a facial constitutional challenge to a statute
in the trial court waives the right to complain of the statute on appeal. Karenev v.
State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (“A facial challenge to the
constitutionality of a statute falls within” the category of rights that can be forfeited
if not raised in the trial court); Merrit v. State, 529 S.W.3d 549, 555 (Tex. App.—

        1
         Both state and federal law limit weapons possession by persons convicted of
misdemeanor offenses involving domestic violence. See 18 U.S.C. § 922(g)(9); Tex. Penal Code
Ann. § 46.04(b) (West 2011).

                                             3
Houston [14th Dist.] 2017, pet. ref’d). We have held that an appellant waives an
Apprendi complaint by not raising it in the trial court. Massouth v. State, Nos. 14-
03-00605-CR, 14-03-00606-CR, No. 2004 WL 1381027, at *2 (Tex. App.—
Houston [14th Dist.] June 22, 2004, pet. ref’d) (mem. op.).

      Appellant argues the rule in Karenev does not apply because his complaint
concerns an illegal sentence and thus may be raised for the first time on appeal.
Appellant is correct that a court may always notice and correct an illegal sentence,
even if a party did not make a contemporaneous objection in the trial court. Mizell
v. State, 119 S.W.3d 804, 806 & n.6 (Tex. Crim. App. 2003) (en banc). We
conclude, however, that appellant’s sentence was not illegal and thus he cannot rely
on that doctrine to raise his issue on appeal.

      An illegal sentence is one that is not authorized by law. Ex parte Parrott, 396
S.W.3d 531, 534 (Tex. Crim. App. 2013); Mizell, 119 S.W.3d at 806 (“A sentence
that is outside the maximum or minimum range of punishment is unauthorized by
law and therefore illegal.”). Appellant received a sentence of confinement for one
year in the county jail, a sentence within the range allowed for a misdemeanor
assault. See Tex. Penal Code § 12.21 (individual found guilty of a Class A
misdemeanor, such as assault, shall be punished by a fine not to exceed four
thousand dollars, confinement in jail for a term not to exceed one year, or both).

      Article 42.013 expressly authorizes and requires a trial court to make a finding
of family violence and enter it in the judgment of the case. Butler v. State, 189
S.W.3d 299, 302 (Tex. Crim. App. 2006). Appellant does not challenge the merits
of the trial court’s finding of family violence; instead, appellant argues the law
allowing the trial court to make the finding is unconstitutional. But, “[s]tatutes are
presumed to be constitutional until it is determined otherwise.” Karenev, 281
S.W.3d at 434; see also Ex parte Beck, 541 S.W.3d 846, 854 (Tex. Crim. App. 2017).

                                           4
To establish that his sentence is illegal, appellant must first establish that the statute
is facially unconstitutional—a challenge he has not preserved. Karenev, 281 S.W.3d
at 434; see Massouth, 2004 WL 1381027, at *2; cf. Ex parte Beck, 541 S.W.3d at
855 (noting exception to preservation rule exists only if statute has already been
declared unconstitutional; otherwise, facial challenge must be preserved in trial
court).

      B.     An article 42.013 finding does not unconstitutionally increase
             appellant’s punishment.
      Assuming appellant can raise his argument for the first time on appeal, we
conclude appellant has not met his burden.             Whether a criminal statute is
constitutional is a question of law that we review de novo. Ex parte Lo, 424 S.W.3d
10, 14 (Tex. Crim. App. 2013). A facial challenge is an attack on the statute itself
as opposed to a particular application. Salinas v. State, 523 S.W.3d 103, 106 (Tex.
Crim. App. 2017). As stated above, we presume the statute is valid, and we uphold
the statute if we can apply a reasonable construction rendering the statute
constitutional. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.]
1979); Kfouri v. State, 312 S.W.3d 89, 92 (Tex. App.—Houston [14th Dist.] 2010,
no pet.). “A facial challenge to a statute is the most difficult challenge to mount
successfully because the challenger must establish that no set of circumstances exists
under which the statute will be valid.” Santikos v. State, 836 S.W.2d 631, 633 (Tex.
Crim. App.), cert. denied, 506 U.S. 999 (1992); see also United States v. Salerno,
481 U.S. 739, 745 (1987). Except when First Amendment freedoms are at issue, a
facial challenge requires the appellant to challenge the statute in all its applications.
Salinas, 523 S.W.3d at 106.

      Under Apprendi v. New Jersey, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury and proven


                                            5
beyond a reasonable doubt to avoid violating a defendant’s rights to due process and
trial by jury. 530 U.S. 466, 490 (2000); see Butler, 189 S.W.3d at 302. Apprendi is
implicated only if a finding increases an appellant’s punishment beyond the
prescribed statutory maximum.2 Butler, 189 S.W.3d at 302. Appellant points to the
loss of his right to possess weapons for a stated length of time as the enhanced
punishment resulting from a family-violence finding under article 42.013. See Tex.
Penal Code § 46.04 (prohibiting person convicted of family-violence assault from
possessing a firearm before fifth anniversary of later of date of person’s release from
confinement or release from community supervision); see also 18 U.S.C. § 922(g)(9)
(prohibiting person convicted of misdemeanor domestic violence from shipping or
transporting, possessing in or affecting interstate or foreign commerce a firearm or
ammunition).

       The loss of the right to possess firearms for a stated length of time, however,
is not part of the punishment for appellant’s crime. In a different context, the Court
of Criminal Appeals has described a restriction on weapons possession as a direct
non-punitive consequence of certain crimes. Mitschke v. State, 129 S.W.3d 130, 135
(Tex. Crim. App. 2004) (noting “there are a number of direct consequences of a plea
of guilty, such as the loss for a period of years of the right to vote and the right to
possess firearms . . . that do not necessarily render an otherwise voluntary plea


       2
          The statutory maximum means the “maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely v. Washington,
542 U.S. 296, 303 (2004) (emphasis in original). We note that the jury here found appellant
committed assault against the complainant, “a person with whom [he] had a dating relationship.”
Thus, the jury’s verdict reflects the facts necessary to support a finding of family violence. Tex.
Fam. Code Ann. § 71.004 (West 2014). Appellant argues the jury’s finding is immaterial because
the statute requires the trial court to make the finding. But a defendant asserting a facial challenge
to a statute must also establish that the law is unconstitutional as applied to him in his situation.
Santikos, 836 S.W.2d at 633. Here, the jury made the finding necessary to establish family
violence, which undercuts the required showing that the statute violated Apprendi as applied to
appellant in this case.

                                                  6
involuntary by the failure of the trial court to admonish a defendant of each of those
direct, non-punitive consequences.”). In addition, the Dallas Court of Appeals
considered whether loss of the right to possess weapons was part of a defendant’s
sentence for purposes of Apprendi and concluded it was not. Williams v. State, No.
05-10-00696-CR, 2011 WL 3484807, at *4 (Tex. App.—Dallas Aug. 10, 2011, pet.
ref’d) (not designated for publication) (noting appellant cited no case in which any
court has held gun restrictions are punitive).3 We agree with the holding in Williams
and conclude that the restriction on weapons possession is a non-punitive
consequence of appellant’s conviction rather than a part of his sentence for Apprendi
purposes.     Cf. Butler, 189 S.W.3d at 303 (additional burdens of community
supervision that arose upon the family violence finding did not increase “appellant’s
punishment beyond the prescribed statutory maximum, thus Apprendi does not
apply”); Williams, 2011 WL 3484807, at *4.

       In any event, we conclude appellant cannot prevail on a facial challenge
because he has not established that article 42.013 operates unconstitutionally in all
circumstances. Appellant argues that the statute requiring the trial court to make the
family-violence finding always operates unconstitutionally because by its terms
article 42.013 requires the trial court, and not the jury, to make the finding. But
appellant has not addressed situations in which the judge, rather than the jury, is the
trier of fact. In such situations, the trial court’s determination of whether the assault
involved family violence would not run afoul of Apprendi even under appellant’s
view of that case. Furthermore, the Apprendi rule is inapplicable to certain petty
offenses that do not trigger the right to a jury trial. See S. Union Co. v. U.S., 567


       3
         See also Hitch v. State, 51 N.E.3d 216, 225 (Ind. 2016) (loss of right to possess firearm
is non-punitive part of regulatory regime aimed at protecting public); D’Alessandro v. Pa. State
Police, 937 A.2d 404, 411 n.7 (Pa. 2007) (noting gun restrictions imposed by section 922(g) “are
not punitive in purpose or effect” and do not implicate Apprendi due-process concerns).

                                                7
U.S. 343, 350-51 (2012) (“Where a fine is so insubstantial that the underlying
offense is considered ‘petty,’ the Sixth Amendment right of jury trial is not triggered,
and no Apprendi issue arises.”). There are certain assault offenses in the Penal Code
that could give rise to a family-violence finding under article 42.013, though they
are classified as low-level misdemeanors carrying insubstantial jail time or fines.
See, e.g., Tex. Penal Code § 22.01(c) (classifying assault under (a)(2) and (3) as class
C misdemeanors). Because the Sixth and Fourteenth Amendments do not require
any jury findings in such cases, appellant has not established that the statute is
unconstitutional in all circumstances. We overrule appellant’s first issue.

II.   The challenged court costs do not violate the separation of powers.
      Although appellant did not object to costs in the trial court, the costs were not
imposed in open court and the judgment does not contain an itemization of the
imposed costs. Thus, appellant may challenge the constitutionality of the costs for
the first time on appeal. See Johnson v. State, 537 S.W.3d 929, 929 (Tex. Crim.
App. 2017) (per curiam); London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App.
2016). In considering appellant’s issues challenging two of the costs, we first
address the standards for analyzing the constitutionality of court-cost statutes and
then apply those standards to the specific costs challenged by appellant.

      A.     Standards governing facial challenges to court costs
      The party challenging a court-cost statute has the burden of establishing its
unconstitutionality. Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015).
Appellant bases his facial challenge to the cost statutes on the doctrine of separation
of powers. The Separation of Powers provision 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
      separate body of magistracy, to wit: Those which are Legislative to one;
      those which are Executive to another, and those which are Judicial to
                                           8
       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. This division “ensures that power granted one branch may
be exercised by only that branch, to the exclusion of the others.” Ex parte Lo, 424
S.W.3d 10, 28 (Tex. Crim. App. 2013) (op. on reh’g). “The courts are delegated a
power more properly attached to the executive branch” in violation of this provision
if a court-cost statute “turns the courts into ‘tax gatherers.’” Salinas, 523 S.W.3d at
107.

       The standard for determining whether a court-cost statute violates the
Separation of Powers provision has evolved over time. See Allen v. State, ___
S.W.3d ___, 2018 WL 4138965, at *6 (Tex. App.—Houston [1st Dist.] 2018, pet.
filed) (describing developing standards applied by Court of Criminal Appeals in
determining whether cost statutes are constitutional). Seventy-six years ago, in Ex
parte Carson, the Court of Criminal Appeals held unconstitutional a $1 library fee
because it was “neither necessary nor incidental to the trial of a criminal case.” 159
S.W.2d 126, 130 (Tex. Crim. App. 1942) (op. on reh’g). That standard remained
unchanged until 2015.

       In Peraza v. State, the high court found Carson’s “necessary or incidental to
the trial” standard “too limiting,” explaining that it “ignores the legitimacy” of many
costs that are “directly related to the recoupment of costs of judicial resources
expended in connection with the prosecution of criminal cases within our criminal
justice system.” 467 S.W.3d at 517; see also id. (holding “that court costs should be
related to the recoupment of costs of judicial resources”). The Peraza court went on
to uphold the constitutionality of the DNA record fee collected under Article
102.020 of the Code of Criminal Procedure, explaining that interconnected statutory
provisions provided for allocation of the funds to be expended for legitimate criminal
                                          9
justice purposes. Id. at 521. Thus, Peraza casts no doubt on the constitutionality of
recouping past costs relating to a criminal trial, which the court long ago upheld in
Carson. Rather, Peraza shows that court-cost statutes are also constitutional if the
funds collected are allocated to be spent in the future in a manner consistent with the
functions of the Judicial Branch.

      In Johnson v. State, we recently construed Peraza’s standard as allowing two
types of court-cost statutes to pass constitutional muster: (1) statutes under which a
court recoups expenditures necessary or incidental to a criminal trial; and (2) statutes
providing for an allocation of the costs to be expended for any legitimate criminal
justice purpose. ___ S.W.3d ___, 2018 WL 4925456, at *5 (Tex. App.—Houston
[14th Dist.] 2018, no pet. h.). An analysis of whether a statute falls within the first
category is backward-looking, while an analysis under the second category is
forward-looking. As we explain below, the two statutes challenged here fall within
the first category of constitutional court-cost statutes.

      Our sister court also follows this two-category approach. In addressing the
constitutionality of the witness summoning/mileage fee found in Article 102.011 of
the Code of Criminal Procedure, it explained “Peraza suggests that a statute that
requires a convicted defendant to reimburse the State for court costs that have
already been ‘incurred in the administration of the criminal justice system’ in that
prosecution remain proper and facially valid.’” Allen, 2018 WL 4138965, at *7.
The Allen court further interpreted Peraza as allowing for two types of costs: (1)
court costs to reimburse criminal justice expenses incurred in connection with that
criminal prosecution; and (2) court costs to be expended in the future to off-set future
criminal-justice costs. Id.

      Two years after Peraza, the Court of Criminal Appeals considered another
court-cost challenge in Salinas, holding it was unconstitutional to allocate some of

                                           10
the funds collected under the consolidated fee statute (section 133.102 of the Local
Government Code) to two particular accounts. 523 S.W.3d at 113. Because the
challenge was specific to how the fees were allocated, the court applied Peraza’s
forward-looking standard that “the collection of fees in criminal cases is a part of the
judicial function ‘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.’” Id. at 107 (quoting Peraza, 467 S.W.3d
at 517). The question of what constitutes a legitimate criminal justice purpose must
be answered on a statute-by-statute and case-by-case basis. Id. Salinas explained
that whether a future allocation of costs relates to the administration of our criminal
justice system depends on what the statute says about the intended use of the funds,
not how the funds are actually used. See id. at 107, 109 n.26.

      The fee in Salinas was not related to any costs incurred in a criminal trial.
Accordingly, we conclude that the court’s use of a forward-looking standard in
Salinas does not affect the holding in Carson and recognition in Peraza that a court-
cost statute may constitutionally recoup expenses necessary or incidental to a
criminal prosecution. In other words, Salinas was analyzing whether the statute fell
within the second category of constitutional court-cost statutes, not the first. See
Johnson, 2018 WL 4925456, at *6. As discussed above, Carson’s holding was
broadened in Peraza to allow more court-cost statutes to pass constitutional muster.
See Johnson, 2018 WL 4925456, at *5; Allen, 2018 WL 4138965, at *7.

      B.     The district attorney fee is facially constitutional.

      In his second issue, appellant challenges the $25 district attorney fee, which
is authorized by article 102.008(a) of the Code of Criminal Procedure. That
provision states in pertinent part as follows:

      Except as provided by Subsection (b) [not applicable here], a defendant
                                          11
       convicted of a misdemeanor or a gambling offense shall pay a fee of
       $25 for the trying of the case by the district or county attorney. If the
       court appoints an attorney to represent the state in the absence of the
       district or county attorney, the appointed attorney is entitled to the fee
       otherwise due.

Tex. Code Crim. Proc. art. 102.008(a). As in Salinas, the statute does not contain
any language requiring that the fee be deposited into a specific account for future
criminal justice expenses. We conclude this fact is not dispositive, however, because
the face of the statute shows the fee is collected to recoup costs of judicial resources
previously expended in connection with the prosecution of the case.

       According to the statute, the fee is “for the trying of the case by the district or
county attorney.” Tex. Code Crim. Proc. art. 102.008(a). If an attorney is appointed
to represent the State, then that particular attorney is entitled to the fee. Id. Thus,
the fee passes constitutional muster under the first category of constitutional court-
cost statutes: it is collected to reimburse the State—or an outside attorney appointed
to represent the State—for costs incurred in trying the case. Peraza makes clear that
statutes allowing for the recoupment of costs expended in connection with the
prosecution of the case remain valid. See Peraza, 467 S.W.3d at 517; Carson, 159
S.W.2d at 130; see also Johnson, 2018 WL 4925456, at *5 (under Peraza, court
costs that are necessary and incidental to a criminal trial remain constitutionally
valid); Allen, 2018 WL 4138965, at *8.4

       Appellant argues that the statute is simply a tax because it does not direct


       4
         In Allen, the court distinguished its prior opinion in Hernandez v. State, No. 01-16-00755-
CR, 2017 WL 3429414 (Tex. App.—Houston [1st Dist.] Aug. 10, 2017, motion for reh’g filed),
which dealt with the same fee as in this case. The Allen court stated: “[n]either party argued—and
the Hernandez opinion did not analyze—whether the fee could survive a constitutional challenge
looking back to the source of the fee versus looking forward to show how the collected fee might
be spent, but Peraza supports such an analysis.” Allen, 2018 WL 4138965, at *8. We likewise
find Hernandez distinguishable.

                                                12
where the funds are to be deposited once collected from the defendant—that is, the
statute does not fall within the second category of constitutional court-cost statutes.
According to appellant, the funds are deposited into the general revenue fund,5
making the statute unconstitutional.

       Appellant is incorrect for three reasons. First, a court-cost statute need only
fall within one category to be constitutional, and it falls within the first category as
explained above.

       Second, if the court appoints an attorney to represent the State, the statute does
direct where the fee will go: it will be paid to that attorney. See Salinas, 523 S.W.3d
at 107 (directing courts to focus on what statute says about intended use of funds,
not on their actual use). Thus, in certain cases, the statute can be applied in a manner
that passes constitutional muster under the second, forward-looking category.
Appellant’s facial challenge would therefore fail even if we applied only the
forward-looking standard in Salinas. See Santikos, 836 S.W.2d at 633.

       Third, we disagree with appellant’s blanket statement that “when the revenue
from a court cost goes to a governmental body’s general revenue fund, the court cost
is unconstitutional.” Appellant cites Salinas for this proposition, but we do not read
Salinas as invalidating the statute at issue merely because the funds were ultimately
deposited into the general revenue fund.



       5
          In support of his argument that the funds are directed to the general revenue fund,
appellant cites an Office of Court Administration report titled “Study of the Necessity of Certain
Court Costs and Fees in Texas (available at http://www.txcourts.gov/publications-
training/publications/filing-fees-courts-costs.aspx). The report states that 100% of the money
collected for the prosecutor’s fee stays with the county or city it serves and is deposited into the
county or city’s general fund. We agree with the court in Allen that the report is of limited use
because the report was not part of the record in the trial court and because failure of the statute to
direct the funds to a segregated account does not make the courts tax gatherers. Allen, 2018 WL
4138965, at *9.

                                                 13
         In Salinas, the court held two portions of the consolidated fee statute
unconstitutional. One portion, directing funds to the “comprehensive rehabilitation
account,” did not “on its face, appear to serve a legitimate criminal justice purpose,”
and the interconnecting statutes directing the money to a certain department did not
direct the use of the funds to those relating to the criminal justice system. Salinas,
523 S.W.3d at 108. The other portion of the statute, directing funds to the “abused
children’s counseling” account, directed funds to an account that no longer existed,
causing the funds to revert to the general revenue fund with no direction as to the
use of the funds. Id. at 110. In neither case did the court invalidate the statute solely
because the funds were ultimately deposited into the general fund. In addition, the
cost statutes at issue in Salinas did not seek to recoup funds expended in connection
with the prosecution of the case. See Allen, 2018 WL 4138965, at *8 (“Salinas did
not involve court costs directly related to the trial of that particular case.”). Like the
court in Allen, we find Salinas distinguishable. We overrule appellant’s second
issue.

         C.     The district clerk’s fee is facially constitutional.

         Appellant challenges the $40 district clerk’s fee in his third issue. This fee is
authorized by article 102.005 of the Code of Criminal Procedure, which provides in
pertinent part:

         (a) A defendant convicted of an offense in a county court, a county court
             at law, or a district court shall pay for the services of the clerk of the
             court a fee of $40.

                                              * * *
         (c) Except as provided by Subsection (d), the fee imposed under
         Subsection (a) is for all clerical duties performed by the clerk,
         including:

                (1) filing a complaint or information;

                                              14
             (2) docketing the case;

             (3) taxing costs against the defendant;

             (4) issuing original writs and subpoenas;

             (5) swearing in and impaneling a jury;

             (6) receiving and recording the verdict;

             (7) filing each paper entered in the case; and
             (8) swearing in witnesses in the case.

Tex. Code Crim. Proc. art. 102.005.

      Appellant concedes that “[t]here is no question that the foregoing services
provided by the clerk are legitimate criminal justice purposes.” Appellant argues
that, like the prosecutor’s fee, the district clerk’s fee is unconstitutional because
revenue from the court cost is not directed to the district clerk by statute, but instead
goes to the general fund. For the reasons discussed above, we disagree. Article
102.005(c) shows that the fee falls within the first category of constitutional court-
cost statutes: it is collected to recoup costs expended in the trial of the case. See
Peraza, 467 S.W.3d at 517 (“We continue to hold, as we did in Weir [v. State, 278
S.W.3d 364 (Tex. Crim. App. 2009)], that court costs should be related to the
recoupment of costs of judicial resources.”); Carson, 159 S.W.2d at 130; Johnson,
2018 WL 4925456, at *5; Allen, 2018 WL 4138965, at *8.

      Two other courts of appeals recently have addressed facial constitutional
challenges to the district clerk’s fee, and both upheld the statute as constitutional.
See Thornton v. State, No. 05-17-00220-CR, 2018 WL 2773390, at *3 (Tex. App.—
Dallas June 11, 2018, no pet.); Davis v. State, 519 S.W.3d 251, 257 (Tex. App.—
Houston [1st Dist.] 2017, pet. ref’d). Both courts addressed arguments like those
made by appellant here: that the statute is facially unconstitutional because it does

                                           15
not direct where the funds are to be spent or because the funds “might be spent for a
purpose not contemplated by the statute.” Thornton, 2018 WL 2773390, at *2, *3;
Davis, 519 S.W.3d at 257. Both courts rejected the argument, relying on the
directive in Peraza that an appellant cannot succeed on a facial challenge to a statute
simply based on “how the revenues might be spent in practice.” Id. Like the courts
in Thornton and Davis, we conclude the statute authorizing the collection of the
district clerk’s fee is constitutional. We overrule appellant’s third issue.

                                    CONCLUSION

      Having overruled appellant’s three issues on appeal, we affirm the trial court’s
judgment.




                                        /s/    J. Brett Busby
                                               Justice



Panel consists of Justices Busby, Brown, and Jewell.
Publish—TEX. R. APP. P. 47.2(b).




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