APPELLANT'S AND STATE'S PETITIONS FOR DISCRETIONARY
REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY
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.
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. 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.
direct appeal, in its opinion on rehearing,  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.
Background Facts and Procedural Posture
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
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,  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.
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.
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.
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.
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?
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.
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.
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).
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."). 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).
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.
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.
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.
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. 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.
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 ...