Benjamin Barrington Johnson v. State , 568 S.W.3d 716 ( 2019 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-18-00156-CR
BENJAMIN BARRINGTON JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th District Court
Gregg County, Texas
Trial Court No. 46439-B
Before Morriss, C.J., Burgess and Stevens, JJ.
Opinion by Justice Burgess
OPINION
Following a bench trial, Benjamin Barrington Johnson was found guilty of two counts of
harassment against a public servant and was sentenced to five years’ incarceration on each count,
with the sentences to run concurrently. Johnson was also assessed consolidated court costs in the
amount of $133.00. In a single appellate issue, Johnson challenges the assessment of consolidated
court costs, claiming that that the statute authorizing the imposition of such costs is facially
unconstitutional. We disagree.
I. The Bill of Costs Did Not Assess Unconstitutional Fees
The imposition of court costs on a criminal defendant is a “nonpunitive recoupment of the
costs of judicial resources expended in connection with the trial of the case.” Johnson v. State,
423 S.W.3d 385, 390 (Tex. Crim. App. 2014). “[W]e review the assessment of court costs on
appeal to determine if there is a basis for the cost [assessed].” Id. When a trial court erroneously
assesses court costs in its judgment, the proper appellate remedy is to reform the judgment to delete
the improper fees. Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013).
In a certified bill of costs, Johnson was assessed $133.00 in consolidated fees. In reliance
on Salinas v. State, 523 S.W.3d 103, 110 (Tex. Crim. App. 2017), in which the Texas Court of
Criminal Appeals addressed the facial constitutionality of the consolidated fee statute, 1 Johnson
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The previous version of Section 133.102(e) of the Texas Local Government Code listed the accounts to which the
court costs must be allocated as follows: (1) abused children’s counseling; (2) crime stoppers assistance; (3) breath
alcohol testing; (4) Bill Blackwood Law Enforcement Management Institute; (5) law enforcement officers standards
and education; (6) comprehensive rehabilitation; (7) law enforcement and custodial officer supplemental retirement
fund; (8) criminal justice planning; (9) an account in the state treasury to be used only for the establishment and
operation of the Center for the Study and Prevention of Juvenile Crime and Delinquency at Prairie View A&M
University; (10) compensation to victims of crime fund; (11) emergency radio infrastructure account; (12) judicial
and court personnel training fund; (13) an account in the state treasury to be used for the establishment and operation
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claims that certain fees assessed against him were unconstitutional and should be deleted from the
judgment. Section 133.102 requires any person convicted of a felony offense to pay $133.00 as
part of a “Consolidated Court Cost” fee. The Texas Court of Criminal Appeals ruled that Section
133.102 of the Texas Government Code was facially unconstitutional to the extent the funds
collected were dispersed to the accounts for “abused children’s counseling” and “comprehensive
rehabilitation.” Id. The court stated,
[W]ith respect to the collection and allocation of funds for [abused children’s
counseling and comprehensive rehabilitation,] the statute is facially
unconstitutional in violation of separation of powers. We also hold, however, that
the invalidity of these two statutory provisions does not render the statute as a whole
unconstitutional. As a result, we hold that any fee assessed pursuant to the
consolidated fee statute must be reduced pro rata to eliminate the percentage of the
fee associated with these two accounts.
Id. at 105.
Salinas was decided in March 2017. Following that decision, the Legislature amended
Section 133.102(e) of the Texas Local Government Code to remove the “abused children’s
counseling” and “comprehensive rehabilitation” accounts identified by the Texas Court of
Criminal Appeals as unconstitutional in Salinas. See Act of May 18, 2017, 85th Leg., R.S., ch.
966, §1, 2017 Tex. Gen. Laws 3911, 3911 (codified at TEX. LOC. GOV’T CODE § 133.102(e)). In
the amended statute, the Legislature reallocated the percentages for the two accounts to the “fair
defense account.” Id. Under the current statute, “crime stoppers assistance” is now
subsection (e)(1), and “criminal justice planning” is now subsection (e)(6). TEX. LOC. GOV’T
of the Correction Management Institute of Texas and Criminal Justice Center Account; and (14) fair defense account.
Act of May 29, 2011, 82d Leg., R.S., ch. 1249, § 13(b), sec. 133.102(e)(1), (6), 2011 Tex. Gen. Laws 3349, 3353,
amended by Act of May 18, 2017, 85th Leg., R.S., ch. 966, § 1, 2017 Tex. Gen. Laws 3911, 3911 (effective June 15,
2017) (current version at TEX. LOC. GOV’T CODE § 133.102(e)).
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CODE ANN. § 133.102(e)(1), (e)(6) (West Supp. 2018). The effective date of the amended version
of Section 133.102(e) was June 15, 2017.
Johnson’s court costs were imposed on June 29, 2018. Consequently, the costs which
Salinas ruled unconstitutional were not assessed against Johnson. We overrule this point of error.
II. Conclusion
We affirm the trial court’s judgment.
Ralph K. Burgess
Justice
Date Submitted: January 18, 2019
Date Decided: January 25, 2019
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