Michael Andrew Horn v. State ( 2021 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00148-CR
Michael Andrew Horn, Appellant
v.
The State of Texas, Appellee
FROM THE 33RD DISTRICT COURT OF LLANO COUNTY
NO. CR7580, THE HONORABLE J. ALLAN GARRETT, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Michael Andrew Horn of the second-degree felony
offense of aggravated assault with a deadly weapon, see Tex. Penal Code §§ 22.01(a)(2),
.02(a)(2), and sentenced appellant to confinement for twenty years in the Institutional Division of
the Texas Department of Criminal Justice. For the following reasons, we modify the trial court’s
judgment of conviction to reduce the amount of court costs by $22.50 and, as modified, we
affirm the judgment of conviction.
Analysis
Appellant does not challenge the jury’s verdicts. His sole appellate issue
challenges 90% of the time payment fee that was assessed against him as court costs.1 As
1
The judgment, which the trial court entered on February 26, 2019, reflects court costs
in the total amount of $355.00 without further itemization, but the District Clerk’s bill of
costs reflects that appellant had not paid any amount toward the assessed court costs as of
support for this challenge, appellant cites this Court’s opinion in Dulin v. State, 583 S.W.3d 351,
353 (Tex. App.—Austin 2019, pet. granted), in which we held that the former statutory
provisions authorizing 90% of the fee—subsections (b) and (d) of former Texas Local
Government Code section 133.103—are facially unconstitutional. See id.; see also former Tex.
Loc. Gov’t Code § 133.103(b) (requiring 50% of fees collected under subsection to be sent to
comptroller for deposit “to the credit of the general revenue fund”), (d) (requiring remainder of
fees collected under section for deposit “in the general revenue account of the county or
municipality”).2
This Court held that subsections (b) and (d) of former section 133.103 were
facially unconstitutional because they violated the separation of powers embodied in the Texas
Constitution by authorizing 90% of the time payment fee for “general revenue not sufficiently
related to a legitimate criminal justice purpose.” See Dulin, 583 S.W.3d at 353 (quoting Johnson
v. State, 573 S.W.3d 328, 340 (Tex. App.—Houston [14th Dist.] 2019, pet. filed)); see also Tex.
March 20, 2019, and provides an itemization of the charged amounts. See Dulin v. State,
583 S.W.3d 351, 352 n.2 (Tex. App.—Austin 2019, pet. granted) (rejecting State’s argument that
constitutional challenge to statutory provision authorizing time payment fee should not be
reached “because the trial court prematurely assessed the time payment fee” and observing that
“more than 30 days have now elapsed since the date of the judgment, and nothing in the record
before us indicates that [defendant] has paid all of his fines and costs”). The bill of costs
itemizes the following charges for the time payment fee: (i) $12.50 (50%); (ii) $2.50 (10%); and
(iii) $10.00 (40%).
2
Appellant does not challenge former section 133.103(c) of the Texas Local
Government Code, which addresses the remaining 10% of the time payment fee. See Act of
June 1, 2003, 78th Leg., R.S., ch. 209, § 62(a), 2003 Tex. Gen. Laws 979, 996–97 (requiring
10% of fees collected under section to be deposited in general fund of county or municipality
“for the purpose of improving the efficiency of the administration of justice in the county or
municipality”). Effective January 1, 2020, the substance of section 133.103 has been amended
and transferred to article 102.030 of the Texas Code of Criminal Procedure, but the former law
applies to this case. See Act of May 23, 2019, 86th Leg., R.S., ch. 1352, 2019 Tex. Gen. Laws
3981, 4010, 4035 (stating that offense committed before effective date of Act is governed by law
in effect on date that offense was committed).
2
Const. art. II, § 1 (providing that no branch of government “shall exercise any power properly
attached to either of the others, except in the instances herein expressly permitted”); Ovalle
v. State, 592 S.W.3d 615, 618 (Tex. App.—Dallas 2020, pet. filed) (following cases with similar
reasoning to conclude that subsections (b) and (d) of former section 133.103 of Texas Local
Government Code are facially unconstitutional).
Bound by this Court’s holding in Dulin, we sustain appellant’s sole issue and
conclude that the assessed court costs in the judgment should be reduced by 90% of the time
payment fee, which amounts to $22.50. This Court has authority to modify incorrect judgments
when the necessary information is available to do so. See Tex. R. App. P. 43.2(b); Bigley
v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Thus, we modify the judgment to
reduce the amount of court costs by $22.50.
Conclusion
We modify the judgment as stated above and, as modified, we affirm the trial
court’s judgment of conviction.
__________________________________________
Melissa Goodwin, Justice
Before Justices Goodwin, Kelly, and Smith
Modified and, As Modified, Affirmed
Filed: February 24, 2021
Do Not Publish
3