Court of Appeals of Texas, Second District, Fort Worth
THE 396TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
GABRIEL, SUDDERTH, and PITTMAN, JJ.
T. PITTMAN JUSTICE
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
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).
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.
Appellant's Complaint About Consolidated Fees Assessed
After Sentencing May Be Raised First on Appeal.
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 Contends That Section 133.102(a)(1) Is Facially
Unconstitutional Because It Violates the Separation of Powers
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.
The Texas Court of Criminal Appeals Recently Held Portions of
Section 133.102 Facially Unconstitutional Because They
Violate the Separation of Powers Clause.
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.
The Texas Court of Criminal Appeals Narrowly Limited the
Retroactivity of Its Holding.
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