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Hawkins v. State

Court of Appeals of Texas, Second District, Fort Worth

April 13, 2017

BILLY HAWKINS APPELLANT
v.
THE STATE OF TEXAS STATE

         FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1431328D

          PANEL: GABRIEL, SUDDERTH, and PITTMAN, JJ.

          OPINION

          MARK T. PITTMAN JUSTICE

         Appellant Billy Hawkins pled guilty to the offense of possession of less than a gram of a controlled substance-methamphetamine, and the trial court convicted him and sentenced him to six months' confinement in state jail. See Tex. Health & Safety Code Ann. §§ 481.102(6) (providing that methamphetamine is in Penalty Group 1), .115(a)–(b) (providing that possessing less than a gram of a Penalty Group 1 substance without authorization is a state jail felony) (West

          2010). The trial court also assessed $349 in court costs, including a consolidated fee of $133. See Tex. Loc. Gov't Code Ann. § 133.102 (West Supp. 2016).

         In his sole point, Appellant contends that section 133.102 of the local government code is facially unconstitutional because it violates the Separation of Powers Clause of the Texas Constitution. See Tex. Const. art. II, § 1; Tex. Loc. Gov't Code Ann. § 133.102(a)(1), (e). Bound by precedent of the Texas Court of Criminal Appeals, we agree in part but can award Appellant no relief. We therefore affirm the trial court's judgment.

         I. Appellant's Complaint About Consolidated Fees Assessed After Sentencing May Be Raised First on Appeal.

         While maintaining that Appellant should have preserved his complaint, the State recognizes that we have held that it may be raised for the first time on appeal. See Ingram v. State, 503 S.W.3d 745, 748 (Tex. App.-Fort Worth 2016, pet. ref'd). Following our precedent, we shall address Appellant's point.

         II. Appellant Contends That Section 133.102(a)(1) Is Facially Unconstitutional Because It Violates the Separation of Powers Clause.

         Specifically, Appellant argues that the statute's allocation of various minimum percentages of the $133 consolidated fee to "accounts and funds" for "abused children's counseling," "law enforcement officers standards and education," and "comprehensive rehabilitation" is unlawful taxation because those funds allow spending for purposes other than "legitimate criminal justice purposes." Tex. Loc. Gov't Code Ann. § 133.102(a)(1), (e)(1), (5), (6); see Peraza v. State, 467 S.W.3d 508, 518 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1188 (2016). He therefore argues that section 133.102 violates the Separation of Powers Clause of the Texas Constitution because it transforms the courts into tax collectors, foisting a function of the executive branch onto the judicial branch.

         III. The Texas Court of Criminal Appeals Recently Held Portions of Section 133.102 Facially Unconstitutional Because They Violate the Separation of Powers Clause.

         Recently in Salinas v. State, the Texas Court of Criminal Appeals partially upheld the same argument Appellant now advances. No. PD-0170-16, 2017 WL 915525, at *4, *5 (Tex. Crim. App. Mar. 8, 2017). The Salinas court declared section 133.102 facially unconstitutional in violation of the Texas Constitution's Separation of Powers Clause to the extent that the statute allocates funds collected by the trial courts to the "comprehensive rehabilitation" account and the "abused children's counseling" account, Tex. Loc. Gov't Code Ann. § 133.102(a)(1), (e)(1), (6), because those accounts do not serve a "legitimate criminal justice purpose." 2017 WL 915525, at *4, *5. We therefore sustain Appellant's point to the extent that it complains of the allocation of funds under those two subsections.

         IV. The Texas Court of Criminal Appeals Narrowly Limited the Retroactivity of Its Holding.

         The Texas Court of Criminal Appeals determined in Salinas, however, that its holding has limited retroactive effect. Id. at *6. The court applied the Stovall test in deciding the retroactivity of its holding because the offending subsections of the statute violated the powers of the judicial branch, not a personal right of the defendant. Id.; see Stovall v. Denno,388 U.S. 293, 297, 87 S. Ct. 1967, 1970 (1967) (noting in federal habeas case that the retroactivity of a new constitutional rule of criminal procedure depends on (1) the new rule's purpose, (2) how much law enforcement relied on the old rule, and (3) the effect retroactivity would have on the administration of justice), overruled by Griffith v.Kentucky,479 U.S. 314, 107 S. Ct. 708 (1987); Taylor v. State,10 S.W.3d 673, 679 (Tex. Crim. App. 2000) (recognizing that Griffith does not bind ...


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