                                                                                ACCEPTED
                                                                            01-16-00768-CR
                                                                  FIRST COURT OF APPEALS
                                                                          HOUSTON, TEXAS
                                                                         5/24/2018 11:00 AM
                                                                       CHRISTOPHER PRINE
                                                                                     CLERK




                     No. 01-16-00768-CR                     FILED IN
                                                     1st COURT OF APPEALS
                                                         HOUSTON, TEXAS
                    In the Court of Appeals
                                                     5/24/2018 11:00:14 AM
                  For the First District of Texas
                                                     CHRISTOPHER A. PRINE
                           At Houston                         Clerk
                      ♦
                          No. 1487627
                   In the 337th District Court
                    Of Harris County, Texas
                      ♦
                       Ruben Lee Allen
                          Appellant
                                v.
                       The State of Texas
                            Appellee
                      ♦
  State’s Supplemental Brief for en banc Reconsideration
                      ♦



Clint Morgan                              Kim Ogg
Assistant District Attorney               District Attorney
Harris County, Texas                      Harris County, Texas
State Bar No. 24071454
morgan_clinton@dao.hctx.net               Amanda Petroff
                                          John Wakefield
1201 Franklin St., Suite 600              Assistant District Attorneys
Houston, Texas 77002                      Harris County, Texas
Telephone: 713 274 5826
                                 Table of Contents

Table of Contents .................................................................... 1
Index of Authorities ................................................................. 2
Purpose of this Brief ................................................................ 1
Costs: Recoupment vs. Funding................................................. 2
Separation of Powers and Original Meaning ................................ 3
Court Costs in 1879 ................................................................ 5
Recouped Costs Seem to Have Gone to the General Fund ............ 7
Conclusion ........................................................................... 11
Certificate of Compliance and Service ...................................... 12




                                            i
                                    Index of Authorities



Cases
Eldred v. Ashcroft
  537 U.S. 186 (2003) .............................................................................. 4
Myers v. United States
 272 U.S. 52 (1926) ................................................................................ 5
Salinas v. State
  523 S.W.3d 103 (Tex. Crim. App. 2017)................................................. 2
State v.Womack
  17 Tex. 237 (1856) ................................................................................ 6


Statutes
Oliver Cromwell Hartley
 Digest of the Laws of Texas (1850) ........................................................ 5, 8
TEX. CODE CRIM. PROC. art 1099 (1879) .................................................. 9
TEX. CODE CRIM. PROC. art. 1018 (1925) ................................................. 8
TEX. CODE CRIM. PROC. art. 1018 (1948) ................................................. 8
TEX. CODE CRIM. PROC. art. 1059 (1879) ................................................. 9
TEX. CODE CRIM. PROC. art. 1061 (1879) ................................................. 8
TEX. CODE CRIM. PROC. art. 1091 (1895) ................................................. 8
TEX. CODE CRIM. PROC. art. 1096 (1879)................................................. 9
TEX. CODE CRIM. PROC. art. 1136 (1911) ................................................. 8
TEX. CODE CRIM. PROC. art. 956 (1856) ................................................... 8
TEX. REV. CIV. STAT. art. 2769 (1879) ...................................................... 8




                                                  ii
Constitutional Provisions
REP. OF TEXAS CONST. OF 1836, Art. 1 § 1 ................................................ 3
TEX. CONST. art. II § 1 ............................................................................. 4
TEX. CONST. OF 1845 art. II § 1 ................................................................ 4
TEX. CONST. OF 1861 art. II § 1 ................................................................ 4
TEX. CONST. OF 1866 art. II § 1 ................................................................ 4
TEX. CONST. OF 1869 art. II § 1 ................................................................ 4


Other Sources
Federal Reserve Bank of Minneapolis
  Consumer Price Index (Estimate) 1800-,
   available at https://minneapolisfed.org/community/financial-and-
  economic-education/cpi-calculator-information/consumer-price-index-
  1800                                                                                               5




                                                  iii
                                 Purpose of this Brief

         On original submission, this Court held that a court cost assessed

against the appellant to recoup the cost of summoning witnesses was facially

unconstitutional because the statute did not direct the money to any

particular criminal-justice fund. In December 2017, the State’s filed a

motion for en banc reconsideration that provided statutory citations showing

the money for this court cost is actually directed to the officer who

summoned the witnesses.

         In April, 2018, the State’s appellate counsel had oral argument before

a panel of the Fourteenth Court regarding the constitutionality of the court

costs that recouped money for the clerk’s and prosecutor’s services.1 As a

result of that argument the State’s appellate counsel conducted additional

research into the original meaning of the Texas constitution as it relates to

court costs. The State’s appellate counsel has submitted that research to two

panels of the Fourteenth Court that are presently considering the matter. As

the issues are the same as in this case, it seems appropriate to submit that

research to this Court as well.




1
    Alfred Moliere v. State, 14-17-00594-CR.
                                               1
                       Costs: Recoupment vs. Funding

      On original submission in Johnson v. State, ___ S.W.3d ___, No. 14-16-

00658-CR, 2018 WL 1476275, at *4 (Tex. App.—Houston [14th Dist]

March 27, 2018, no pet. h.), 2 the Fourteenth Court hit on a very important

question in the current spate of court-cost litigation. Texas has always

assessed    court   costs    against   convicted     defendants     to   recoup     the

government’s expenses from the prosecution. However, in recent decades

Texas has also assessed court costs as funding mechanisms for various

criminal-justice projects. Recent Court of Criminal Appeals cases, which

require appellate courts to rummage through numerous statutes to

determine where court-cost money goes, deal with costs that are assessed as

funding mechanisms. Do the requirements of these recent cases extend to

the older, recoupment court costs?

      On original submission in Johnson, the Fourteenth Court answered

this question in the affirmative. On original submission in this case, this

Court did so as well, though it did not explicitly treat the matter as an open

question as did the Johnson court. Both courts based their approach on the

Court of Criminal Appeals’s most recent court-cost case, Salinas v. State,

523 S.W.3d 103 (Tex. Crim. App. 2017). In Salinas, the court analyzed a

2
  The State has moved for rehearing in Johnson based, in part, on the research contained
in this brief. That motion is pending.
                                           2
funding court cost, tracked down the designated fund to which money was

supposed to go, saw that the fund no longer existed, and then declared the

cost a “tax” that violated the separation-of-powers provision of the state

constitution.

      The State believes the application of Salinas to recoupment court costs

is a reasonable reading of Salinas, but it is not a required reading of Salinas.

By its barest terms Salinas does not reach recoupment court costs. The State

believes this Court should read Salinas in the context of the original meaning

of the Texas Constitution’s separation-of-powers provision. A review of the

court-cost scheme at and around the time the current Texas constitution was

adopted shows that those Texans who drafted and ratified the constitution

believed it acceptable for courts to 1) recoup from a convicted defendant the

costs incurred in prosecuting him, and 2) deposit the money in an

unrestricted account.


              Separation of Powers and Original Meaning

      The current separation-of-powers provision has appeared in the same

location of every Texas constitution since statehood,3 remaining unchanged

since 1845:


3
 The constitution of the Republic contained a shorter separation of powers provision:
“The powers of this Government shall be divided into three departments, viz: Legislative,
                                           3
       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.

TEX. CONST. art. II § 1; see TEX. CONST. OF 1845 art. II § 1; TEX. CONST.

OF 1861   art. II § 1; TEX. CONST. OF 1866 art. II § 1; TEX. CONST. OF 1869

art. II § 1.4

       The State believes that, when looking to give this section of the

constitution the effect its drafters and ratifiers intended, it makes sense to

look at the laws of that time period, as those laws are likely to reflect what

the drafters and ratifiers believed the constitution allowed. Cf. Eldred v.

Ashcroft, 537 U.S. 186, 213 (2003) (federal Supreme Court “has repeatedly

laid down the principle that a contemporaneous legislative exposition of the

Constitution when the founders of our Government and framers of our

Constitution were actively participating in public affairs, acquiesced in for a




Executive and Judicial, which shall remain forever separate and distinct.” REP. OF TEXAS
CONST. OF 1836, Art. 1 § 1.
4
 The University of Texas at Austin’s Tarleton Law Library has a convenient archive of all
Texas constitutions available at https://tarltonapps.law.utexas.edu/constitutions/ (last
accessed May 24, 2018).

                                           4
long term of years, fixes the construction to be given [the Constitution's]

provisions.”) (quoting Myers v. United States, 272 U.S. 52, 175 (1926)). This

should be particularly true where constitutional provisions and statutes kept

being readopted over the course of decades.


                                Court Costs in 1879

      Both in the Republic and in the early days of statehood, most of the

public servants involved in a criminal prosecution were paid on a fee basis

rather than with a salary. See, e.g., Oliver Cromwell Hartley, Digest of the

Laws of Texas (1850) (hereinafter “Hartley), Art. 1358 (1848 law providing

that district attorneys be paid $20 for every felony conviction, $15 for every

gambling conviction, and $10 for all other convictions, 5 “which fees shall be

taxed in the bill of costs against the defendant; but in no case shall be paid

by the State.”). The Congress, and, later, the Legislature passed laws

requiring convicted defendants (except in capital cases) to reimburse the

government for any costs it had paid during the proceedings. Hartley, Arts.


5
  The Minneapolis Federal Reserve Bank has estimates of the consumer price index going
back to 1800. See Federal Reserve Bank of Minneapolis, Consumer Price Index (Estimate)
1800-, available at https://minneapolisfed.org/community/financial-and-economic-
education/cpi-calculator-information/consumer-price-index-1800 (last accessed May 24,
2018). Though it is only an estimate, converting 1848 dollars to 2017 dollars requires
multiplying the former by 28.2. At the time, the costs accessed against the defendant were
meant to cover essentially the entire cost of the prosecution. Today’s fees — e.g. a $40
jury fee, where other statutes require each juror to be paid $40 per day — do not come
remotely close to the actual costs.
                                            5
400 (1836 law requiring as much), 1371 (1848 law requiring as much). The

First Congress explicitly provided for imprisonment for failure to pay these

fees, unless it “appear[ed] to the court that the person so committed hath no

estate or means to pay such fine and costs,” in which case the court was to

discharge the defendant and the debt. Hartley, Art. 401; see State v. Womack,

17 Tex. 237, 239 (1856) (noting in passing that power of judge to order

convicted misdemeanant imprisoned until $5 jury fee was paid “cannot be

questioned”).

      Beginning with the first codification in 1856, and running until the

most recent major revision in 1965, the Code of Criminal Procedure

established three categories of court costs: Those paid by the state (i.e. the

state government in Austin), those paid by the county, and those paid by the

defendant. As often happens, these code sections started as very simple, but

grew more complex as the years went on. Here, the State will discuss the

version in the 1879 Code, which most closely reflects the laws at the time

the current constitution was adopted. These sections were very similar to

those in the 1856 Code.

      The state was responsible for paying the attorney general for each

affirmed appeal and habeas case, the clerk of the appellate court for each

appeal, the district or county attorney for each conviction, and several fees to

                                       6
the sheriff related to summoning witnesses and jurors and conveying

prisoners. TEX. CODE CRIM. PROC. arts. 1049-1061 (1879).6 The county

was responsible for paying for the upkeep of prisoners, paying and

supporting jurors (grand and petit), paying the county judge for any criminal

cases he tried, and paying for the costs of inquests on dead bodies. TEX.

CODE CRIM. PROC. art. 1062-86 (1879). The defendant was responsible for

paying the attorney general and clerk of the court of appeals for each

affirmed or dismissed appeal, paying the prosecutor’s fee, paying the district

clerk for various acts (e.g., twenty-five cents for docketing the case), paying

the sheriff for various acts (e.g., fifty cents for summoning a witness, and one

dollar for serving an arrest warrant), paying various fees to justices of the

peace, mayors, and recorders who tried criminal cases, paying a jury fee, and

paying fees to witnesses ($1.50 per day of testimony and 6 cents per mile

travelled to court). TEX. CODE CRIM. PROC. art. 1087-1111 (1879).


        Recouped Costs Seem to Have Gone to the General Fund

      Importantly, beginning in 1856 and running through the most recent

major revision in 1965, the Code provided that, upon conviction, any fees

6
  The code revisions of 1879, 1895, 1911, 1925, and 1948 are available from the State
Law Library’s website: https://www.sll.texas.gov/library-resources/collections/ historical-
texas-statutes/. The Legislative Reference Library of Texas has pdf copies of the 1856
Penal Code and Code of Criminal Procedure (i.e. “the Old Codes”):
http://www.lrl.state.tx.us/collections/ oldcodes.cfm
                                            7
paid by the state were to be charged against the defendant as part of the bill

of costs. The Code never directed any of the recouped money to a particular

fund, but instead stated merely that it be “paid by the officer collecting [the

costs] into the Treasury of the State.” TEX. CODE CRIM. PROC. art. 956

(1856); see TEX. CODE CRIM. PROC. art. 1061 (1879) (“shall be paid into

the treasury of the state”); TEX. CODE CRIM. PROC. art. 1091 (1895) (“shall

be paid into the treasury of the state”); TEX. CODE CRIM. PROC. art. 1136

(1911) (“shall be paid into the treasury of the state”); TEX. CODE CRIM.

PROC. art. 1018 (1925) (“shall be paid into the State Treasury”); TEX. CODE

CRIM. PROC. art. 1018 (1948) (“shall be paid into the State Treasury”).

      Though the State Treasurer was required to keep track of the amount

of revenue derived from various sources, it appears that, at least in the mid-

nineteenth century, all money received into the treasury was put into a single

account. See Hartley, Art. 2905 (1846 law stating treasurer must keep single

account “in the name of the State of Texas, in which he shall enter the

amounts of all moneys, securities, and other property in the Treasury, and

which may at any time be received by him”); TEX. REV. CIV. STAT. art. 2769

(1879) (same). In the section describing how the Comptroller was to make

payment on claims from officers, the Code states that the funds come out of

a particular “appropriation” from the Legislature, rather than a particular

                                      8
fund, implying that the intake of money from court costs was not directly

tied to the actual expenditures. TEX. CODE CRIM. PROC. art. 1059 (1879).

      Though most of the recoupment court costs went to the state, one

court cost in the 1879 Code functioned as little more than a general tax. For

convictions in justices’, mayors’, or recorders’ courts, defendants were to pay

$10 to “the attorney who represents the state.” TEX. CODE CRIM. PROC. art.

1096 (1879). A later section provided, though, that in cases where that

attorney “has taken no action,” the attorney would collect no fee but “a fee

of five dollars shall be taxed, for the benefit of the county, instead thereof.”

TEX. CODE CRIM. PROC. art 1099 (1879).

      The State can find no cases litigating the legality of these costs during

this time period. If the question is, “During the period in which the Texas

constitution was drafted and adopted, did the Legislature and people of

Texas believe that the separation-of-powers provision allowed for the

assessment of court costs to recoup money spent on the defendant’s case?”,

the answer is a definite “yes.” If the question is, “During that period did the

Legislature and people of Texas believe that money recouped via court costs

needed to be specifically earmarked for a criminal justice purposes?”, the

answer is: “Apparently not.”



                                       9
     Salinas, by its bare terms, does not apply to recoupment costs.

Applying that case’s requirements to recoupment court costs would conflict

with how those Texans who drafted and ratified the constitution believed

court costs should work. This Court should respect that historical

understanding and not apply Salinas to recoupment costs.




                                   10
                               Conclusion

     The State asks this Court to grant rehearing and uphold the witness

summoning fee the appellant is challenging.



                                              KIM OGG
                                              District Attorney
                                              Harris County, Texas


                                              /s/ C.A. Morgan
                                              CLINT MORGAN
                                              Assistant District Attorney
                                              Harris County, Texas
                                              1310 Prairie, Suite 500
                                              Houston, Texas 77002
                                              Telephone: 713 274 5826
                                              Texas Bar No. 24071454




                                    11
                  Certificate of Compliance and Service

      I certify that, according to Microsoft Word, the portion of this brief for

which Rule of Appellate Procedure 9.4(i)(1) requires a word count contains

2,172 words.

      I also certify that I have requested that efile.txcourts.gov electronically

serve a copy of this brief to:

      Nicholas Mensch
      nicholas.mensch@pdo.hctx.net
                                                /s/ C.A. Morgan
                                                CLINT MORGAN
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1310 Prairie, Suite 500
                                                Houston, Texas 77002
                                                Telephone: 713 274 5826
                                                Texas Bar No. 24071454


Date: May 24, 2018




                                       12
