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Allen v. State

Court of Criminal Appeals of Texas

November 20, 2019

RUBEN LEE ALLEN, Appellant
v.
THE STATE OF TEXAS

          ON APPELLANT'S AND STATE'S PETITIONS FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY

          Court in which Keller, P.J., Keasler, Hervey, Richardson, Yeary, and Walker, JJ., joined. Yeary, J., filed a concurring opinion. Keel, J., filed a concurring and dissenting opinion. Newell, J., concurred.

          OPINION

          Slaughter, J.

         This case involves Appellant Ruben Lee Allen's facial challenge to the constitutionality of Texas Code of Criminal Procedure Article 102.011, subsections (a)(3) and (b). That statute assesses court costs against a convicted defendant to recoup law-enforcement expenses incurred in serving and summoning witnesses for the defendant's prosecution. The statute is silent with respect to where the funds are directed once received by the district clerk.[1] Appellant argues that because Article 102.011 does not direct the collected fees toward a specific account to be expended for legitimate criminal justice purposes, the statute operates as an impermissible tax on criminal defendants rather than as a permissible court cost, thereby violating the separation of powers provision in the Texas Constitution. As support for his argument, Appellant relies on this Court's precedent in Peraza v. State and Salinas v. State.[2]

         On direct appeal, in its opinion on rehearing, [3] the First Court of Appeals rejected Appellant's facial challenge to the statute. It acknowledged that the statute does not contain any language expressly directing that the collected fees be used for a legitimate criminal justice purpose. But, the court found that because the summoning witness/mileage fee was imposed to reimburse an expense directly incurred by the State in the prosecution of this particular case, it was "unquestionably for a legitimate criminal justice purpose," which renders it a constitutional court cost, as opposed to an impermissible tax. We agree and affirm.

         I. Background Facts and Procedural Posture

         Appellant was convicted by a jury of aggravated robbery with a deadly weapon. In the judgment of conviction, the trial court ordered Appellant to pay court costs, which included a $200 charge for a "summoning witness/mileage" fee. See Tex. Code Crim. Proc. art. 102.011(a)(3), (b) (providing that a convicted defendant "shall pay" fees "for services performed in the case by a peace officer," including a fee of $5 per witness summoned plus a fee for the officer's mileage to deliver the summons).[4]

         On direct appeal, Appellant complained that the statute imposing the $200 summoning witness/mileage fee facially violated the separation of powers clause in the Texas Constitution. Relying on Peraza and Salinas, he argued that because the funds received were not statutorily directed toward a designated fund to be used for a criminal justice purpose and instead were deposited into the county's general fund, [5] the fee was an unconstitutional tax collected by the judiciary. Appellant claimed that this Court's precedent mandates that any statute imposing court costs must always direct the collected funds to be expended for legitimate criminal justice purposes, otherwise the statute violates the separation of powers clause.

         The court of appeals disagreed with Appellant's interpretation of Peraza and Salinas. Allen v. State, 570 S.W.3d 795, 804 (Tex. App.-Houston [1st Dist.] 2018) (op. on reh'g). The court observed that long before Peraza and Salinas, this Court had approved of court costs that were for the reimbursement of expenses incurred during a defendant's trial, so long as such costs were "'necessary' and 'incidental' to the trial of a criminal case." Id. at 804 (citing Peraza v. State, 467 S.W.3d 508, 517 (Tex. Crim. App. 2015) (discussing standard from Ex parte Carson, 159 S.W.2d 126, 130 (Tex. Crim. App. 1942) (op. on reh'g))). Peraza, the court found, then expanded the scope of constitutionally-permissible court costs beyond this necessary/incidental standard to also include non-reimbursement-type court costs (e.g., those untied to the particular prosecution of the defendant that are to be expended in the future to offset legitimate criminal-justice costs). Id. at 805 (citing Peraza, 467 S.W.3d at 517-18). The court noted that although Peraza expanded the scope of permissible court costs beyond the previous necessary/incidental standard, nothing about this expansion undermined the continued constitutionality of reimbursement-based costs, which remained "proper and facially valid." Id. at 804-05.

         In examining Salinas, the court of appeals viewed that decision as clarifying that a statute imposing costs to offset future criminal justice expenses must expressly allocate those funds toward an account "'to be expended for legitimate criminal justice purposes, '" otherwise the statute violates separation of powers. Id. at 805-06 (quoting Salinas v. State, 523 S.W.3d 103, 109 (Tex. Crim. App. 2017)). But the court reasoned that this requirement from Salinas did not apply to reimbursement-based court costs, and instead applied only to the type of cost that had been at issue in that case-a fee to be expended to offset future criminal justice expenses. Id. at 807. Thus, it concluded that Salinas did not apply to Appellant's case because the summoning witness/mileage fee was a reimbursement of expenses incurred in Appellant's prosecution, rather than a collection of funds for future criminal justice expenses. Id.

         Based on this view of our precedent, the court of appeals upheld the summoning witness/mileage fee as "an expense incurred by the State in the prosecution of this particular case [which] is unquestionably for a legitimate criminal justice purpose." Id. The court further held that "the Legislature's failure to require that the monies be deposited into a segregated account does not make the courts tax gatherers when the fee is directly tied to reimbursement for past judicial expenses incurred in the case." Id. at 808.

         Disagreeing with the court of appeals' decision, Appellant filed a petition for discretionary review. The State cross-petitioned. We granted a single ground in each party's petition to address the following issues:

1. For the Appellant: Whether the First Court of Appeals erred when it misinterpreted Peraza and failed to apply Salinas in upholding the summoning witness/mileage fee statute even though the statute does not direct the funds collected to be used for a legitimate criminal justice purpose?
2. For the State: Whether this Court should overrule Carson, Peraza, and Salinas and find that there should be no limitations on the Legislature's ability to assess court costs?

         II. Analysis

         In this opinion, we solely address Appellant's issue, and we agree with the court of appeals' conclusion that the summoning witness/mileage fee does not violate separation of powers principles. Because the statute imposes a fee to reimburse the government for expenses directly incurred in connection with a defendant's prosecution, the fee falls within the core category of reimbursement-based court costs that this Court has long recognized as constitutionally permissible, regardless of how the fees are spent once collected. The statute's failure to direct the funds to be expended for a legitimate criminal justice purpose in the future does not render the courts tax gatherers in violation of separation of powers.

         With respect to the State's cross-petition, we have determined, based on our review of the parties' arguments and the specific nature of the statute at issue in this case, that the State's issue was improvidently granted. Therefore, we dismiss the State's petition for discretionary review. After reviewing the applicable law below, we explain these conclusions in turn.

         A. Applicable Law

         Because Appellant challenges the constitutionality of Code of Criminal Procedure Article 102.011, Subsections (a)(3) and (b), he bears the burden of establishing the statute's unconstitutionality. Peraza, 467 S.W.3d at 514 (citing Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978)). When considering a statute's constitutionality, we begin with the presumption that the statute is valid. Id.; see also Tex. Gov't Code § 311.021 ("In enacting a statute, it is presumed that . . . compliance with the constitutions of this state and the United States is intended[.]"). From there, we "seek to interpret [the] statute such that its constitutionality is supported and upheld[, ]" and we "must make every reasonable presumption in favor of [its] constitutionality, unless the contrary is clearly shown." Peraza, 467 S.W.3d at 514 (citing Luquis v. State, 72 S.W.3d 355, 365 n.26 (Tex. Crim. App. 2002); Granviel, 561 S.W.2d at 511).

         With the statute's presumed constitutionality, Appellant already faces a high burden. But because Appellant has launched a facial challenge, he bears an even greater burden. "'A facial challenge is an attack on a statute itself as opposed to a particular application.'" Id. (quoting City of Los Angeles v. Patel, 135 S.Ct. 2443, 2449 (2015)); Salinas, 523 S.W.3d at 106. Such a challenge requires Appellant to establish that "no set of circumstances exists under which [the] statute would be valid." Peraza, 467 S.W.3d at 514; see also State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013) ("[T]o prevail on a facial challenge, a party must establish that the statute always operates unconstitutionally in all possible circumstances.").[6] Thus, if there is any possible constitutional application of the statute, then Appellant's facial challenge fails. Peraza, 467 S.W.3d at 515-16. Given this high burden, a facial challenge is "the most difficult challenge to mount successfully." United States v. Salerno, 481 U.S. 739, 745 (1987).

         Appellant's facial challenge is rooted in the separation of powers provision of the Texas Constitution. Tex. Const. art. II, § 1. This provision expressly guarantees that our three branches of government-legislative, executive, and judicial-are separate and distinct branches, "and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others" unless expressly permitted in the Constitution. Id. "This division ensures that power granted one branch may be exercised by only that branch, to the exclusion of the others." Ex parte Lo, 424 S.W.3d 10, 28 (Tex. Crim. App. 2013) (op. on State's motion for reh'g). One way the separation of powers provision is violated is when "one branch of government assumes or is delegated a power 'more properly attached' to another branch." Id. (quoting Ex parte Gill, 413 S.W.3d 425, 431-32 (Tex. Crim. App. 2013)).[7]

         Appellant's argument that the summoning witness/mileage fee violates the separation of powers clause stems from the fact that the judicial branch, under the Texas Constitution, has no taxing authority. See Tex. Const. art. V. The authority to impose taxes is vested in the legislative branch, and the authority to collect taxes is delegated to the executive branch. Id. arts. III, IV, VIII. In view of this division of power, we have held that "[t]he courts are delegated a power more properly attached to the executive branch if a statute turns the courts into 'tax gatherers[.]'" Salinas, 523 S.W.3d at 107 (citing Peraza, 467 S.W.3d at 517). But we have further recognized that, under certain circumstances, a court's collection of fees in a criminal case is a proper part of the judicial function and does not constitute an impermissible tax. Id. Three of our previous decisions are relevant to determining this dividing line between an impermissible tax and a permissible court cost: Ex parte Carson, Peraza v. State, and Salinas v. State.

         Ex parte Carson

         In 1942, this Court held in Ex parte Carson that for a court cost to be legitimate it must be "necessary" or "incidental" to the trial of a criminal defendant. 159 S.W.2d 126, 130 (Tex. Crim. App. 1942) (op. on motion for reh'g). In Carson, the Court considered the constitutionality of a statute imposing a $1 fee on criminal defendants and directing the collected monies into a fund for a county law library. Id. at 127 (noting that funds were to be used "for certain costs and expenses in acquiring, maintaining and operating a law library available to the judges of the courts and to the attorneys of litigants in the courts") (orig. op.). Concluding that this fee was too "remote" from the prosecution to "be logically considered a proper item of cost[, ]" the Court struck down the statute. Id. It reasoned that such cost was "neither necessary nor incidental to the trial of a criminal case, and that it [was] not a legitimate item to be so taxed[.]" Id. at 130. Although Carson did not state that its holding was based on separation of powers principles, its standard would later be cited as the "litmus test" for establishing whether a court cost comported with the separation of powers clause. See Peraza, 467 S.W.3d at 517.

         Peraza

         More than seventy years later, this Court revisited Carson's "necessary" or "incidental" standard in Peraza v. State, 467 S.W.3d at 515. Peraza involved a facial separation of powers challenge to a statute assessing a $250 "DNA Record Fee" against defendants convicted of certain crimes, including Peraza who was convicted of aggravated sexual assault of a child. Id. at 511; see Tex. Code Crim. Proc. art. 102.020.[8] Under the statute, 35 percent of the funds were directed to the state highway fund, and 65 percent were directed to the criminal justice planning account in the general revenue fund. Peraza, 467 S.W.3d at 511; see Tex. Code Crim. Proc. art. 102.020(h). Peraza argued that the collected fees were being used for services that were "neither necessary nor incidental to the trial of a criminal case," as required by Carson, and therefore constituted an unconstitutional tax. Peraza, 467 S.W.3d at 512-13.

         In upholding the statute over Peraza's facial challenge, this Court first examined the "necessary" or "incidental" standard from Carson and concluded that it had become too restrictive in light of intervening changes to our criminal justice system. Id. at 517. The Court reaffirmed the general principle that "court costs should be related to the recoupment of costs of judicial resources." Id. But it further observed that in the decades since Carson was decided, "the prosecution of criminal cases and our criminal justice system have greatly evolved." Id. Accordingly, the Legislature had enacted a scheme of costs "with the intention of reimbursing the judicial system for costs incurred in the administration of the criminal justice system." Id. Given these considerations, the Court reasoned that to continue to require court costs to be necessary or incidental to the trial of a criminal case "ignores the legitimacy of costs that, although not necessary to, or an incidental expense of, the actual trial of a criminal case, may nevertheless be directly related to the recoupment of costs of judicial resources expended in connection with the prosecution of criminal cases within our criminal ...


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