             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                          NO. PD-0170-16


                  ORLANDO SALINAS, Appellant

                                   v.

                       THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
      FROM THE FOURTEENTH COURT OF APPEALS
                  HARRIS COUNTY

      N EWELL, J. filed a dissenting opinion, in which R ICHARDSON,
J., joined.

     Of late, this Court has gotten fairly adept at striking down statutes

as facially unconstitutional. Though there are some exceptions, these

cases have generally applied a different standard of review than the one

at work in this case.      Those cases dealt with First Amendment,

“overbreadth” challenges rather than the type of pure facial challenge we

consider here that attacks a statute in its every application. See e.g. Ex
                                                        Salinas Dissent – 2

parte Perry, 483 S.W.3d 884 (Tex. Crim. App. 2016); State v. Johnson,

475 S.W.3d 860 (Tex. Crim. App. 2015); Ex parte Thompson, 442 S.W.3d

325 (Tex. Crim. App. 2014); Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App.

2013).   The legislature even passed a law requiring courts to provide

notice to the Attorney General before holding a statute unconstitutional,

which this Court promptly held unconstitutional. See Ex parte Lo, 424

S.W.3d 10, 27 (Tex. Crim. App. 2013) (opinion on reh’g.) (holding that

section 402.010 of the Texas Government Code unconstitutional because

it violates the separation-of-powers provision of the Texas Constitution).

Nevertheless, the Court’s analysis in this regard has always been

appropriately rigorous given the drastic nature of holding a statute

unconstitutional.

     That is not the case here. As Judge Yeary’s dissent explains, a true

facial challenge to a statute requires this Court to look for ways to uphold

the statute, not ways to strike the statute down.         United States v.

Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative

Act, is, of course, the most difficult challenge to mount successfully, since

the challenger must establish that no set of circumstances exists under

which the Act would be valid.”). If the statute can result in the collection

of funds for a legitimate criminal justice purpose, then it is not
                                                               Salinas Dissent – 3

unconstitutional in every application. Peraza v. State, 467 S.W.3d 508,

516 (Tex. Crim. App. 2015) (“To determine whether a statute always

operates unconstitutionally in all possible circumstances, we must look to

see   if   there   are   potential   applications   of   the    statute   that   are

constitutionally valid.”).     There is no question that funds limited at

collection to pay for comprehensive rehabilitation and abused children’s

counseling could be used for legitimate criminal justice purposes. The

Court concedes as much. Maj. op. at 7.

      That is why I do not agree with the Court that the failure of a

statute to further specifically direct that the funds deposited in general

revenue be used for a criminal justice purpose–aside from the limitations

provided by the description of the fee itself and other interrelated

statutes–means the legislature drafted a facially unconstitutional court-

cost statute. Peraza, 467 S.W.3d at 519 (rejecting argument that DNA

Record Fee was facially unconstitutional simply because it was deposited

into the criminal justice planning account which funded other projects

unrelated to managing the statewide criminal DNA database).                      The

statutory provisions at issue are not simply general revenue collection;

they direct funds collected go to particular purposes, and there are

circumstances under which those funds would serve a legitimate criminal
                                                      Salinas Dissent – 4

justice purpose. Yet, the Court relies upon the possibility that the funds

could be used for some other, illegitimate purpose to suggest that the

statute is facially unconstitutional. On the one hand, the Court rejects

the possible use of the funds for a legitimate criminal justice purpose as

irrelevant to the analysis. But on the other, the Court links the facial

constitutional flaw to the possibility that the funds could be used for an

illegitimate purpose.

     The Court compounds this problem by reading the limitations in the

statutory provisions at issue in Peraza to be a necessary condition for

constitutionality rather than merely a sufficient one. Unquestionably, the

statutes at issue in Peraza provided more express limitations on the use

of the court costs collected than are present in this case. See Peraza,

467 S.W.3d at 519. (“Because a portion of the DNA record fee collected

is deposited into the criminal justice planning account, and the criminal

justice planning account is statutorily required to reimburse monies spent

collecting DNA specimens from offenders charged with certain offenses

(including aggravated sexual assault of a child under 14), we hold that

the statute allows for constitutionally permitted applications.”). And we

rejected Peraza’s claims that the statutes providing for deposits in the

criminal justice planning account and the state highway fund were facially
                                                        Salinas Dissent – 5

unconstitutional because specific statutes limited the use of the funds for

a criminal justice purpose. Id. at 520-21. We held that Peraza, and the

First Court of Appeals, were simply wrong that some of the money

collected could be used for a purpose other than managing the statewide

criminal DNA database or defraying the cost of administering it.

     Yet, we never held that those limitations were required; we simply

held that the interconnected statutory provisions “allow” for such funds

to be expended for legitimate criminal justice purposes.        Id. at 521.

When we focused upon the remoteness of potential unconstitutional

“applications”, we still focused on how the money could have been spent,

not on how it had been collected. Id. at 521. (“The statutory scheme

allocating these resources to the state highway fund are required, via

interconnected statutory provisions, to be expended for legitimate

criminal justice purposes.”). And at all times we maintained that it was

the defendant’s burden to show that it was not possible for the statute to

operate constitutionally under any circumstance. Id.

     If we are truly looking at whether the interconnected statutes are

facially unconstitutional without regard to how the money is spent, then

we should only be looking at whether the terms of the statutes

specifically prevent, at the time of collection, the use of the funds for any
                                                        Salinas Dissent – 6

legitimate criminal justice purpose. Peraza, 467 S.W.3d at 516 (“[W]e

cannot hold a statute requiring the assessment of court costs facially

unconstitutional simply because there might be a potential and/or remote

circumstance in which it may be applied unconstitutionally.”). If such a

statute were passed, it would, by its own terms rather than its possible

effects, be unconstitutional in all of its applications. Admittedly, such a

statute would seem unlikely to pass because it would be notoriously

unconstitutional. But that accurately reflects how difficult it should be for

the legislature to draft a statute that is unconstitutional in every

application and how easy and obvious it should be to spot such

constitutional infirmities.

      The court’s requirement of an express limitation of the statutes in

question to only constitutional applications obviates the need for any

presumption of constitutionality. State v. Rosseau, 396 S.W.3d 550, 557

(Tex. Crim. App. 2013) (“[A]nalysis of a statute’s constitutionality must

begin with the presumption that the statute is valid and that the

Legislature did not act arbitrarily or unreasonably in enacting it.”).

Moreover, it turns that well-established presumption on its head and
                                                                      Salinas Dissent – 7

removes any need for as-applied constitutional challenges.1 This Court’s

holding could have far-reaching consequences for facial constitutional

challenges to other statutes. That is why I whole-heartedly agree with

Judge Yeary, and why I join his dissent.

       But I write separately to clarify that arguing that the statutes at

issue are constitutional is not the same thing as endorsing the

legislature’s drafting or the legislation’s effect. As the Court thoroughly

sets out, the statutes governing the collection of fees in criminal cases

are written very broadly and with no express limitations on how fees

deposited in the general revenue fund are ultimately spent, except that

they must go to comprehensive rehabilitation and abused children’s

counseling. They could be used for legitimate criminal justice purposes,

but they could also be used as a tax to fund any number of governmental

initiatives unrelated to the proper functioning of the criminal justice

system. Without the inclusions of more definite limitations, a “user-pay

system”      creates     a   devilishly    tempting       incentive     for   a   “tax-free”

governmental revenue stream. Unchecked, these types of fee statutes


       1
         Indeed, the Court fails to m ention any duty to em ploy a reasonable narrowing
construction of the statutes at issue to avoid a constitutional violation. See e.g. State v.
Johnson, 475 S.W .3d 860, 872 (Tex. Crim . App. 2015) (noting the duty of Texas courts to
em ploy, if possible, a reasonable narrowing construction to avoid a constitutional violation);
Ex parte Thom pson, 442 S.W .3d 325, 339 (Tex. Crim . App. 2014) (sam e).
                                                        Salinas Dissent – 8

could threaten to grow the criminal justice system atop the court-cost

equivalent of a sub-prime mortgage bubble.

     That is why the recent public momentum for addressing the

collection and administration of court costs in the legislature is not at all

surprising. Many have noted that incarcerating the indigent for the failure

to pay fines and court costs threatens to turn our jails into debtors

prisons. See e.g. Cain v. City of New Orleans, 184 F. Supp. 3d. 349 (E.D.

La. 2016); Joseph Shapiro, As Court Fees Rise, The Poor are Paying the

Price, http://www.npr.org/2014/05/19/312158516/increasing-court-fees-

punish-the-poor; Shaila Dewan and Andrew W. Lehren, After a Crime, the

Price of a Second Chance, N.Y. T IMES, Dec. 12, 2016. The Chief Justice

of the Texas Supreme Court, in his recent State of the Judiciary Address,

remarked, “Jailing criminal defendants who cannot pay their fines and

court costs – commonly called debtors’ prison– keeps them from jobs,

hurts their families, makes them dependent on society and costs the

taxpayers money.” Jonathan Silver, Legislature Should Prioritize Judicial

Security,   Texas   Supreme     Court    Justice   Says,   Texas    Tribune,

https://w w w.texastribune.org/2017/02/01/state-judiciary.              The

legislature has heard these concerns and is moving to respond.

Legislation is currently pending that begins to address the serious
                                                       Salinas Dissent – 9

problems attendant to funding the criminal justice system through fees

paid by indigent criminal defendants. See Tex. H.B. 1465, 85th Leg., R.S.

(2017).

     But by stepping in to address a political issue as a constitutional

one, we risk stealing that momentum away from the branch of

government best able to treat the issue as a systemic one after input

from all the relevant stakeholders.    See Washington State Grange v.

Washington State Republican Party, 552 U.S. 442, 451 (2008) (noting

that, “facial challenges threaten to short circuit the democratic process

by preventing laws embodying the will of the people from being

implemented in a manner consistent with the Constitution.”); see also

Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 329

(2006) (noting that courts must keep in mind that “‘[a] ruling of

unconstitutionality frustrates the intent of the elected representatives of

the people.’”).   As a Court, we can only look at the issue through an

analytical keyhole–made all the more tiny by a harshly deferential

standard of review–as each statute winds its way through the court

system. Peraza, 467 S.W.3d at 518 (“Whether a criminal justice purpose

is “legitimate” is a question to be answered on a statute-by-statute/case-
                                                                     Salinas Dissent – 10

by-case basis.”).2 It is ironic that we have intruded upon the province of

another branch of government in the name of preserving the separation

of powers.

       The late Supreme Court Justice Antonin Scalia famously quipped

that “a lot of stuff that’s stupid is not unconstitutional.” Jennifer Senior,

In Conversation: Antonin Scalia, N EW Y ORK M AGAZINE, Oct. 6, 2013. He

was, of course, expressing the view that not everything that is

undesirable, annoying, or even harmful rises to                            the level of a

constitutional crisis. Brown v. Chicago Board of Education, 824 F.3d 713,



       2
          The Court attem pts to am eliorate this concern by adding the issue of retroactivity to
our holding in this case and deciding it in favor of the State. I would not address an issue
the court of appeals has not had the opportunity to consider. See e.g. Arm strong v. State,
805 S.W .2d 791, 794 (Tex. Crim . App. 1991) (“This Court and the Court of Appeals are
without authority to render advisory opinions.”). Assum ing we should address it, there are
also significant problem s with the Court’s analysis, which borrows retroactivity jurisprudence
for “court-m ade” rules and applies it to a holding striking down a duly-passed statute as
facially unconstitutional. See Griffith v. Kentucky, 479 U.S. 314 (1987) (considering
retroactivity of court-m ade rule announced in Batson v. Kentucky); Stovall v. Denno, 388
U.S. 293, 296-97 (1967) (considering retroactivity of court-m ade rule regarding
adm issibility of tainted eyewitness identification testim ony). The Court fails to account for
our jurisprudence holding a statute void ab initio when it has been declared facially
unconstitutional. Sm ith v. State, 463 S.W .3d 890, 895 (Tex. Crim . App. 2015); Reyes v.
State, 753 S.W .2d 382, 383 (Tex. Crim . App. 1988); Ex parte Bockhorn, 62 Tex. Crim . App.
651, 138 S.W . 706, 707 (1911). Declaring a statute facially unconstitutional is not finding
constitutional court error or announcing a new court-m ade rule of crim inal procedure; it is
holding that the legislature passed a statute so blatantly unconstitutional it should have
never been passed. Reyes, 753 S.W .2d at 384 (holding that the determ ination that Article
32A.02 was void due to a violation of the separation of powers rendered the statute void
from inception). If we are going to address “retroactivity” at all, Reyes v. State would seem
to control. At the very least, I would not decide the issue without first ordering the parties
to brief it, assum ing it is even appropriate to address it in this case at all. Cf. Teague v.
Lane, 489 U.S. 288, 300 (1989) (deciding the issue of retroactivity of a court-m ade rule of
crim inal procedure at tim e the new rule was announced where retroactivity was raised in an
am icus brief and addressed in reference to a related claim by the parties).
                                                    Salinas Dissent – 11

714 (7th Cir. 2016).   He even went so far as to suggest that judges

should be given a stamp that says, “stupid but constitutional.” Id. These

statutory provisions illustrate the need for such a stamp.    If only the

Court would use it.

     With these thoughts, I dissent.




Filed: March 8, 2017

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