Opinion issued February 27, 2020




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-19-00030-CR
                           ———————————
                       ALBERT FORISTER, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 424th District Court
                          Burnet County, Texas1
                        Trial Court Case No. 46497


                         MEMORANDUM OPINION




1
     The Texas Supreme Court transferred this appeal from the Court of Appeals for the
     Third District of Texas. See TEX. GOV’T CODE § 73.001 (authorizing transfer of
     cases between courts of appeals).
      The State charged Albert Forister with first-degree-felony possession with

intent to deliver methamphetamine2 in an amount of four grams or more but less than

200 grams. See TEX. HEALTH & SAFETY CODE § 481.112(d). Forister pleaded not

guilty to the charge but pleaded “true” to both enhancement paragraphs. The jury

found Forister guilty of the lesser-included offense of possession of

methamphetamine in an amount of four grams or more but less than 200 grams, a

second-degree felony. See id. § 481.115(a), (d). The trial court sentenced Forister to

50 years’ confinement and assessed court costs totaling $399, including a $25 time

payment fee.

      In his first issue, Forister contends that the $25 time payment fee3 assessed

against him should be reduced by $22.50 because 90 percent of the fee is facially




2
      Methamphetamine is categorized as a “Penalty Group 1” drug in the Health and
      Safety Code. See TEX. HEALTH & SAFETY CODE § 481.102(6).
3
      Section 133.103 of the Local Government Code governs time payment fees. See
      TEX. LOC. GOV’T CODE § 133.103. The Texas Legislature has passed legislation,
      effective January 1, 2020, that deletes Subsections (c) and (d) from Section 133.103
      and revises Subsection (b) to provide that all the fees collected under the section are
      “to be used for the purpose of improving the collection of outstanding court costs,
      fines, reimbursement fees, or restitution or improving the efficiency of the
      administration of justice in the county or municipality.” See Act of May 23, 2019,
      86th Leg., R.S., S.B. 346, § 2.54 (to be codified at TEX. CODE CRIM. PROC. art.
      102.030). The changes apply only to a cost, fee, or fine assessed on a conviction for
      an offense committed on or after the effective date of the Act. Id. § 5.01. Because
      the offense in this case was committed before January 1, 2020, the former law
      applies. Id.

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unconstitutional. In his second issue, Forister contends that the judgment contains

several errors.

                    Constitutionality of Time Payment Fees

A.    Standard of Review

      There are two types of challenges to the constitutionality of a statute: (1) the

statute is unconstitutional as applied to the defendant; or (2) the statute is

unconstitutional on its face. Briggs v. State, 789 S.W.2d 918, 923 (Tex. Crim. App.

1990) (en banc). “Statutes are presumed to be constitutional until it is determined

otherwise.” Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009); see Ex

parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978) (en banc) (requiring

the appellate court to “commence with the presumption that such statute is valid and

that the Legislature has not acted unreasonably or arbitrarily in enacting the

statute.”). A person challenging the constitutionality of a statute has the burden of

establishing its unconstitutionality. Peraza v. State, 467 S.W.3d 508, 514 (Tex.

Crim. App. 2015). We should consider “the statute only as it is written, rather than

how it [may operate] in practice.” State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908

(Tex. Crim. App. 2011). To establish that a statute is facially unconstitutional the

appellant must show that “no set of circumstances exists under which that statute

would be valid.” Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992) (en

banc) (citing United States v. Salerno, 481 U.S. 739, 745 (1987)). “If a statute can


                                          3
be construed in two different ways, one of which sustains its validity, we apply the

interpretation that sustains its validity.” Kfouri v. State, 312 S.W.3d 89, 92 (Tex.

App.—Houston [14th Dist.] 2010, no pet.). We uphold the statute if we can apply a

reasonable construction rendering the statute constitutional. Id. (citing Ely v. State,

582 S.W.2d 416, 419 (Tex. Crim. App. 1979)). 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).

B.    Applicable Law

      A defendant may challenge the court costs assessed, including time payment

fees, for the first time on appeal. See Casas v. State, 524 S.W.3d 921, 925 (Tex.

App.—Fort Worth 2017, no pet.). The Local Government Code mandates time

payment fees. See TEX. LOC. GOV’T CODE § 133.103. Section 133.103 of the Texas

Local Government Code requires a person convicted of a criminal offense to pay a

time payment fee of $25 if the person: (1) has been convicted of a felony or

misdemeanor; and (2) pays any part of a fine, court costs, or restitution on or after

the 31st day after a judgment is entered assessing the fine, court costs, or restitution.

Id. § 133.103(a). Subsection (b) of the statute instructs the treasurer to send 50

percent of the time payment fees collected to the comptroller to be deposited to the

credit of the general revenue fund. Id. § 133.103(b). Subsection (c) instructs the

treasurer to deposit 10 percent of the fees in the general fund of the county or


                                           4
municipality “for the purpose of improving the efficiency of the administration of

justice in the county or municipality.” Id. § 133.103(c). Subsection (d) instructs the

treasurer to deposit the remaining 40 percent of the fees in the general revenue

account of the county or municipality. Id. § 133.103(d).

      The Texas Constitution expressly guarantees that powers among the three

branches of government be separated. TEX. CONST. art. II, sec. 1; Salinas v. State,

523 S.W.3d 103, 106 (Tex. Crim. App. 2017). This section ensures that the powers

granted to one governmental branch may be exclusively exercised only by that

branch. Johnson v. State, 573 S.W.3d 328, 333 (Tex. App.—Houston [14th Dist.]

2019, pet. filed) (citing Ex parte Lo, 424 S.W.3d at 28). A branch of the government

violates the separation-of-powers provision “[w]hen one branch of government

assumes or is delegated a power more properly attached to another branch.” Johnson,

573 S.W.3d at 333 (citing Salinas, 523 S.W.3d at 106–07). “The courts are delegated

a power more properly attached to the executive branch if a statute turns the courts

into ‘tax gatherers,’” but there are instances when the collection of fees in criminal

cases will be considered a part of the judicial function. For example, court costs

allocated to be expended for legitimate criminal justice purposes are permitted.

Salinas, 523 S.W.3d at 107.

      A legitimate criminal justice purpose is determined on a statute-by-statute and

case-by-case basis by reviewing what the governing statute dictates as the intended


                                          5
use of the funds. Salinas, 523 S.W.3d at 107. Whether the funds are actually used

for a legitimate criminal justice purpose is not a relevant inquiry. Id.

C.    Analysis

      Although Forister does not challenge the constitutionality of subsection (c) of

the Local Government Code, he argues that subsections (b) and (d) violate the

separation of powers in the Texas Constitution. TEX. CONST. art. II, sec. 1 (providing

that no branch of government “shall exercise any power properly attached to either

of the others, except in the instances herein expressly permitted”). Forister relies on

Johnson v. State, 573 S.W.3d 328 (Tex. App.—Houston [14th Dist.] 2019, pet.

filed). In Johnson, our sister court addressed whether a time payment fee violates

the separation-of-powers provision of the Texas Constitution. Id. at 340. Johnson

examined “whether [portions of] section 133.103 direct[] that the funds be used for

something that is a legitimate criminal justice purpose.” Id. Relying on Salinas, the

Johnson court held that the time payment fee authorized by subsections (b) and (d)

are directed to general revenue and do not relate to the criminal justice system

because there is no “statutory directive that the funds be used for a legitimate

criminal justice purpose.” Id. Therefore, Johnson held that portions of Section

133.103 were facially unconstitutional and reduced the appellant’s time payment fee

from $25 to $2.50. Id.




                                           6
      After the Johnson decision, other Texas courts have held that Subsections (b)

and (d) are facially unconstitutional. See, e.g., Jackson v. State, No. 10-17-00333-

CR, 2020 WL 830822, at *4 (Tex. App.—Waco Feb. 19, 2020, no pet. h.) (mem.

op., not designated for publication); Ovalle v. State, --- S.W.3d ---, No. 05-19-00136-

CR, 2020 WL 364140, at *3 (Tex. App.—Dallas Jan. 22, 2020, no pet. h.); Simmons

v. State, 590 S.W.3d 702, 711 (Tex. App.—Waco 2019, pet. filed); Townsend v.

State, No. 13-18-00049-CR, 2019 WL 6205470, at *8 (Tex. App.—Corpus Christi

Nov. 21, 2019, pet. filed) (mem. op., not designated for publication); Dulin v. State,

583 S.W.3d 351, 353 (Tex. App.—Austin 2019, pet. granted); Kremplewski v. State,

--- S.W.3d ---, No. 01-19-00033-CR, 2019 WL 3720627, at *3 (Tex. App.—Houston

[1st Dist.] Aug. 8, 2019, pet. filed); King v. State, No. 11-17-00179-CR, 2019 WL

3023513, at *5 (Tex. App.—Eastland July 11, 2019, pet. filed) (mem. op., not

designated for publication).

      We likewise adopt the reasoning in Johnson and conclude Subsections (b) and

(d) of Section 133.103 are facially unconstitutional. In contrast, Subsection (c),

which allocates 10 percent of the time payment fee to the general fund of the county

or municipality to improve the efficiency of the administration of justice in the

county or municipality, is facially constitutional because it allocates the funds for a

legitimate criminal justice purpose. See Peraza, 467 S.W.3d at 517. We therefore

sustain Forister’s first issue in part, deleting $22.50 from the time payment fee


                                          7
assessed because the statute that authorizes this portion of the time payment fee is

facially unconstitutional. We overrule the remainder of Forister’s first issue.

                                 Erroneous Judgment

      In his second issue, Forister asserts that the judgment of conviction contains

an error and requests that we modify the judgment accordingly. The State concedes

that the judgment does not reflect the Health and Safety Code provision under which

Forister was convicted. The State also concedes that the judgment incorrectly recites

the degree of offense and statute for the offense. The jury convicted Forister of

second-degree-felony possession of methamphetamine in an amount of four grams

or more but less than 200 grams in violation of Texas Health and Safety Code section

481.115(a) and (d). The judgment, however, inaccurately reflects that Forister was

convicted of first-degree-felony possession with intent to deliver methamphetamine

in an amount of four grams or more but less than 200 grams in violation of Texas

Health and Safety Code Section 481.112(d).

      We have the authority to correct a trial court’s judgment when we have the

necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865

S.W.2d 26, 27–28 (Tex. Crim. App. 1993) (en banc); Parlin v. State, 591 S.W.3d

214, 225 (Tex. App.—Houston [1st Dist.] 2019, no pet.). The jury’s verdict form

shows that Forister was convicted of possession, and not possession with the intent

to deliver, because it states:


                                          8
      We, the jury find defendant, [Forister], GUILTY of the lesser included
      offense of Possession of a Controlled Substance, to-wit:
      Methamphetamine, 4 grams or more but less than 200 grams.4

We will therefore exercise our authority to amend the erroneous judgment.

Accordingly, we modify the judgment to reflect that Forister was convicted under

Texas Health and Safety Code Section 481.115(a) and (d) in trial court cause number

46497.

                                     Conclusion

      We sustain in part Forister’s first issue as to the facial constitutionality of the

time payment fee under Texas Local Government Code Section 133.103(b) and (d).

We overrule Forister’s first issue in all other respects. We sustain Forister’s second

issue as to the accuracy of the degree of offense, statute for offense, and offense of

conviction. We modify the trial court’s judgment to reduce the time payment fee

from $25 to $2.50. We also modify the trial court’s judgment of conviction to reflect

that Forister was convicted under Texas Health and Safety Code section 481.115(a)

and (d).




4
      The trial court also referenced the lesser-included offense when the court announced
      the judgment of conviction: “So at this point, based on the jury’s finding of guilt,
      I’m going to find you guilty of possession of a controlled substance between four
      and 200 grams.”
                                           9
      As modified, we affirm the trial court’s judgment.



                                                Sarah Beth Landau
                                                Justice

Panel consists of Justices Lloyd, Landau, and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).




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