Nicholas Jackson v. State , 565 S.W.3d 900 ( 2018 )

Affirmed and Majority and Concurring and Dissenting Opinions filed
December 20, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00511-CR
NICHOLAS JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 8
Harris County, Texas
Trial Court Cause No. 2124534
CONCURRIUNG AND DISSENTING
OPINION
I agree with the majority that appellant’s first and second issues lack merit,
and that this court should affirm appellant’s conviction and sentence. This court’s
recent precedent in Moliere v. State binds this panel to overrule appellant’s third
issue, in which he asserts that the district-attorney fee imposed in article
102.008(a) of the Texas Code of Criminal Procedure facially violates the Texas
Constitution’s separation-of-powers clause.1 Though I stand by my dissenting
opinion in Johnson v. State, the majority correctly determines that the Johnson
precedent binds this panel to overrule appellant’s fourth issue, in which he asserts
that the jury fee imposed in article 102.004(a) of the Texas Code of Criminal
Procedure facially violates the Texas Constitution’s separation-of-powers clause.2
I part ways with the majority as to the analysis of the fifth issue, in which
appellant asserts that article 102.011(a)(3) and article 102.011(b) of the Texas
Code of Criminal Procedure facially violate the Texas Constitution’s separation-of-
powers clause. Though the majority concludes otherwise, under binding precedent
from the Court of Criminal Appeals, to show that any court-cost statute on its face
violates the separation-of-powers clause, a challenger need only show that neither
the court-cost statute nor any interconnected statute directs that the funds collected
under the court-cost statute be spent for a legitimate criminal-justice purpose.
In his fifth issue, appellant asserts that article 102.011(a)(3) and article
102.011(b) facially violate the Texas Constitution’s separation-of-powers clause
because each statutory fee constitutes an impermissible tax collected by the
judiciary, rather than a legitimate court cost. The parties have not cited and
research has not revealed any binding precedent addressing this issue.3
1
See Moliere v. State, No. 14-17-00594-CR, 2018 WL 6493882, at *4–7, (Tex. App.—Houston
[14th Dist.] Dec. 11, 2018, no pet. h.).
2
See Johnson v. State, No. 14-16-00658-CR, 2018 WL 4925456, at *4–8, (Tex. App.—Houston
[14th Dist.] Oct. 11, 2018, no pet. h.) (majority opinion rejecting claim that the jury fee imposed
in article 102.004(a) of the Texas Code of Criminal Procedure facially violates the Texas
Constitution’s separation-of-powers provision); Johnson, 2018 WL 4925456, at *9–16 (Frost,
C.J. dissenting).
3
The only appellate court that appears to have addressed whether article 102.011(a)(3) or article
102.011(b) of the Texas Code of Criminal Procedure facially violates the Texas Constitution’s
separation-of-powers provision is the First Court of Appeals. In Allen v. State that court held
that article 102.011(a)(3) does not facially violate the Texas Constitution’s separation-of-powers
provision. See No. 01-16-00768-CR, 2018 WL 4138965, at *4–9 (Tex. App.—Houston [1st
2
Article 102.011(a)(3) imposes on a defendant convicted of a felony or a
misdemeanor a $5 fee for each witness summoned by a peace officer in the case
(the “witness-summoning fee”).4 If a defendant must pay a fee under article
102.011(a), then article 102.011(b) requires the defendant to “also pay 29 cents per
mile for mileage required of an officer to perform a service listed in [article
102.011(a)] and to return from performing that service” (the “mileage fee”).5
Appellant’s argument amounts to a facial challenge to each statute’s
constitutionality. Appellant contends that each statute violates the separation-of-
powers clause because each statute lacks the requisite directing language — neither
statute directs that the funds collected be expended for something that is a
legitimate criminal-justice purpose.
Preservation-of-Error Analysis
The trial court ordered in its judgment that appellant pay all court costs. The
trial court did not impose any court costs in open court, and the judgment does not
contain an itemization of the court costs. The Court of Criminal Appeals permits
an appellant in this scenario to challenge the constitutionality of article
102.011(a)(3) and article 102.011(b) for the first time on appeal, so appellant did
not need to preserve error in the trial court to get appellate review of the challenges
he presents today.6
Facial-Challenge Analysis
We review the constitutionality of a criminal statute de novo as a question of
Dist.] Aug. 30, 2018, pet. granted).
4
See Tex. Code Crim. Proc. Ann. art. 102.011(a)(3) (West, Westlaw through 2017 1st C.S.).
5
Id. art. 102.011(b) (West, Westlaw through 2017 1st C.S.).
6
See Johnson v. State, 537 S.W.3d 929, 929 (Tex. Crim. App. 2017) (per curiam); London v.
State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016).
3
law.7 Because one making a facial challenge attacks the statute itself as opposed to
a particular application, the challenger must show that no set of circumstances
exists under which the challenged statutes would be valid.8 Importantly, under the
proper facial-challenge analysis, this court is to consider only applications in which
the challenged statute actually authorizes or prohibits conduct.9
The Texas Constitution’s Separation-of-Powers Clause
Our state constitution expressly guarantees the separation of powers among
Texas’s three branches of government.10 Article II, section 1 states:
The powers of the Government of the State of Texas shall be divided
into three distinct departments, each of which shall be confided to a
separate body of magistracy, to wit: Those which are Legislative to
one; those which are Executive to another, and those which are
Judicial to another; and no person, or collection of persons, being of
one of these departments, shall exercise any power properly attached
to either of the others, except in the instances herein expressly
permitted.
Tex. Const. art. II, § 1. This foundational guarantee assures that the powers the
people of Texas have granted to one governmental branch will not be usurped by
another but secured exclusively for the intended branch.11 Simply put, the three
branches of government must stay within their constitutionally designed lanes.12
When one branch assumes or is delegated a power more properly attached to
another branch, that action violates the separation-of-powers clause.13 If a statute
7
Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013).
8
Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015).
9
Id.
10
Tex. Const. art. II, § 1; Salinas v. State, 523 S.W.3d 103, 106 (Tex. Crim. App. 2017).
11
Ex parte Lo, 424 S.W.3d at 28.
12
See id.
13
Salinas, 523 S.W.3d at 106–07.
4
turns the courts into tax gatherers, then the statute gives to the courts a power more
properly attached to the executive branch.14
The Court of Criminal Appeals’s Opinion in Peraza
This court should look to the Court of Criminal Appeals’s precedent to
determine the legal standard for analyzing appellant’s constitutional challenges. In
Peraza v. State, the Court of Criminal Appeals reviewed its 1942 opinion in Ex
parte Carson, in which the high court found a $1 library fund court cost invalid as
neither “necessary nor incidental to the trial of a criminal case.”15 Though the
Carson case did not involve an allegation that the court cost violated the Texas
Constitution’s separation-of-powers clause, the court of appeals in Peraza drew
guidance from the Carson precedent in deciding that the statute in Peraza violated
the Texas Constitution’s separation-of-powers clause.16 On review, the Court of
Criminal Appeals concluded that “necessary and incidental to the trial of a criminal
case” should not be the legal standard for determining whether court-cost statutes
defy the separation-of-powers clause.17 The high court reasoned that the rejected
standard would be “too limiting” and would “ignore 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 justice system.”18
The Peraza court held that, “if the statute under which court costs are
14
Id. at 107.
15
Ex parte Carson, 159 S.W.2d 126, 130 (Tex. Crim. App. 1942); see Peraza, 467 S.W.3d at
515–17.
16
See Peraza, 467 S.W.3d at 512–13; Ex parte Carson, 159 S.W.2d at 127–30.
17
See Peraza, 467 S.W.3d at 517.
18
Id.
5
assessed (or an interconnected statute) provides for an allocation of such court
costs to be expended for legitimate criminal-justice purposes, then the statute
allows for a constitutional application that will not render the courts tax gatherers
in violation of the separation of powers clause.”19 For the purposes of this legal
standard, the Peraza court stated that a criminal-justice purpose is one that relates
to the administration of the criminal-justice system and that courts must determine
the legitimacy of a purported criminal-justice purpose on a statute-by-statute, case-
by-case basis.20 The Peraza court also emphasized that the challenger takes on the
burden to show that the statute operates unconstitutionally in every possible
circumstance.21 The Peraza court signaled that the challenger’s burden includes
showing that no scenario exists under which the statute or an interconnected statute
would provide for an allocation of the court costs to be used for legitimate
criminal-justice purposes.22
In Peraza, the challenged statute required that the court costs collected to be
sent to the comptroller and then required the comptroller to deposit 35 percent of
the funds into the state treasury to the credit of the state highway fund and the
remaining 65 percent to go to the credit of the criminal-justice planning account in
the general revenue fund.23 The Peraza court noted that article 102.056 of the
Code of Criminal Procedure requires that funds in the criminal-justice planning
account be used to reimburse law-enforcement agencies for expenses incurred in
19
Id. (footnote omitted).
20
Id. at 517–18.
21
See id. at 516.
22
See id. at 517–19.
23
See Tex. Code Crim. Proc. Ann. art. 102.020(e),(h) (West 2010); Peraza, 467 S.W.3d at 519–
21.
6
collecting a DNA specimen from every person charged with certain crimes.24
Even if the court costs deposited into the criminal-justice planning account were
used to fund criminal-justice projects unrelated to managing the statewide DNA
database, the funds still would be used for legitimate criminal-justice purposes.25
As to the funds deposited into the state treasury to the credit of the state
highway fund, Government Code section 411.145 requires that these funds be used
to defray the cost of administering the part of the Government Code governing the
collection and management of DNA samples, which the Peraza court deemed a
legitimate criminal-justice purpose.26 So, the Peraza court held that the challenger
had not met his burden of showing that it was impossible for the court-cost statute
to operate constitutionally under any circumstance.27 Notably, the court-cost statute
challenged in Peraza did not involve the recoupment of costs necessary and
incidental to the trial of a criminal case.28 Nonetheless, the Peraza court
articulated a single legal standard for deciding whether a challenger has shown that
a court-cost statute facially violates the Texas Constitution’s separation-of-powers
clause, and the high court did not say that this standard would differ depending on
the type of court-cost statute.29
The Court of Criminal Appeals’s Opinion in Salinas
Two years after Peraza, in Salinas v. State, the Court of Criminal Appeals
24
See Peraza, 467 S.W.3d at 518–19.
25
See Peraza, 467 S.W.3d at 519 (concluding that “[t]he statutory scheme allocating these
resources to the criminal-justice planning account are required, via interconnected statutory
provisions, to be expended for legitimate criminal-justice purposes”).
26
See Tex. Gov’t Code Ann. § 411.145 (West 2010); Peraza, 467 S.W.3d at 519–21.
27
Peraza, 467 S.W.3d at 521.
28
See Tex. Code Crim. Proc. Ann. art. 102.020; Peraza, 467 S.W.3d at 518–21.
29
See Peraza, 467 S.W.3d at 513–21.
7
addressed the constitutionality of a statute requiring every convicted felon to pay
$133 as a court cost.30 Though the statute contained an express provision
allocating the court costs among various accounts, the high court concluded that
two of the accounts did not qualify as an allocation of funds to be expended for
legitimate criminal-justice purposes and, to that extent, deemed the statute facially
unconstitutional.31
The Salinas court said that it was applying the legal standard from Peraza.32
As to the legal standard required to show that a court-cost statute facially violates
the separation-of-powers clause, the teachings of Peraza mirror the teachings of
Salinas.33 Yet, the Salinas court used different words to describe this legal
standard.34 The Peraza court spoke in terms of statutes “provid[ing] for an
allocation of such court costs to be expended for a legitimate criminal justice
purpose” while the Salinas court stated that “Peraza requires that the relevant
statutes direct that the funds be used for something that is a legitimate criminal
justice purpose.”35 In finding the Salinas statute unconstitutional in part, the high
court pointed to the failure of any statute to direct that the court costs be used for a
legitimate criminal-justice purpose and concluded that this failure alone showed
that the statute imposing the court cost facially violated the separation-of-powers
clause:
Because the constitutional infirmity in this case is the statute’s failure
30
See 523 S.W.3d 103, 106–10 (Tex. Crim. App. 2017).
31
See id.
32
See id. at 107 (reciting legal standard from Peraza); id. at 109 n. 26 (asserting that the State
and the dissenting judges misunderstood Peraza and stating what the Salinas court concluded is
required under Peraza).
33
See id. at 106–10; Peraza, 467 S.W.3d at 513–21.
34
See Salinas, 523 S.W.3d at 106–10; Peraza, 467 S.W.3d at 513–21.
35
Compare Salinas, 523 S.W.3d at 109 n. 26, with Peraza, 467 S.W.3d at 517.
8
to direct the funds to be used in a manner that would make it a court
cost (i.e., for something that is a [legitimate] criminal justice purpose),
the statute operates unconstitutionally every time the fee is collected,
making the statute unconstitutional on its face.36
The Salinas court stressed in broad language that it found the statute facially
unconstitutional because the statute did not direct the funds to be used for a
legitimate criminal-justice purpose.37 The high court stated that courts should base
the determination of what constitutes a legitimate criminal-justice purpose on what
the governing statute says about the intended use of the funds, not on whether the
funds actually are used for a legitimate criminal-justice purpose.38
The Salinas case did not involve a statute under which the court recoups
costs that are necessary and incidental to the trial of a criminal case, nor did
Salinas involve a statute that said nothing about the allocation of the court costs
collected.39 Even so, the Salinas court used expansive language and did not
mention any exception for such statutes. See id. Presuming for argument’s sake
that appellant’s separation-of-powers challenge does not fall within the Salinas
court’s holding, the high court’s statements retain their relevance as judicial dicta
because they constitute deliberate and unequivocal declarations of the law made
after mature consideration and for future guidance of the bench and bar.40 These
judicial dicta bind this court.41
36
Salinas, 523 S.W.3d at 109 n. 26 (emphasis in original).
37
See id. at 109–10, nn. 26 & 36.
38
See id. at 107.
39
See id. at 106–10.
40
See Salinas, 523 S.W.3d at 106–10; Murray v. State, 261 S.W.3d 255, 257 (Tex. App.—
Houston [14th Dist.] 2008), aff’d, 302 S.W.3d 874 (Tex. Crim. App. 2009).
41
See Murray, 261 S.W.3d at 257; see also Cervantes-Guervara v. State, 523 S.W.3d 827, 832
(Tex. App.—Houston [14th Dist.] 2017, no pet.) (holding that when the Court of Criminal
Appeals “has deliberately and unequivocally interpreted the law in a criminal matter, we must
9
Salinas compels this court to apply the legal standard in that case to all
facial, separation-of-powers challenges to court-cost statutes.42 In criminal
appeals, this court must follow precedent from the Court of Criminal Appeals.43
We may not remodel the legal standard. We lack the authority to to add to or take
away from the high court’s precedent.44 If the high court sees reason to make
changes, the high court can do so. Until then, in analyzing the constitutionality of
court-cost statutes, we must look to the Court of Criminal Appeals’s unadulterated
standard: to show that a court-cost statute facially violates the separation-of-
powers clause, a challenger need only show that neither the court-cost statute nor
any interconnected statute directs that the funds collected under the court-cost
statute be expended for something that is a legitimate criminal-justice purpose.45
The Salinas standard applies to appellant’s challenges to article
102.011(a)(3) and article 102.011(b), even presuming that each statute involves
recoupment of costs incurred by the county that are necessary and incidental to the
trial of a criminal case, and even though each statute is silent as to the allocation of
the court costs collected.46 Though the Salinas legal standard and the Peraza legal
standard feature different wording, they do not conflict. Nor is the Salinas legal
standard inconsistent with the result in Peraza because the Peraza court indicated
adhere to its interpretation”).
42
See Salinas, 523 S.W.3d at 106–10, nn. 26 & 36; Hernandez v. State, No. 01-16-00755-CR,
2017 WL 3429414, at 6–7 (Tex. App.—Houston [1st Dist.] Aug. 10, 2017, no pet. h.) (applying
Salinas legal standard to court-court statute that was silent as to the allocation of the court costs
collected and that involved the recoupment of costs necessary and incidental to the trial of a
criminal case).
43
See State of Texas ex rel. Vance v. Hatten, 508 S.W.2d 625, 628 (Tex. Crim. App. 1974);
Gardner v. State, 478 S.W.3d 142, 147 (Tex. App.–Houston [14th Dist.] 2015, pet. ref’d).
44
See Hatten, 508 S.W.2d at 628; Gardner, 478 S.W.3d at 147.
45
See Salinas, 523 S.W.3d at 106–10, nn. 26 & 36; Hernandez, 2017 WL 3429414, at 6–7.
46
See Salinas, 523 S.W.3d at 106–10, nn. 26 & 36; Hernandez, 2017 WL 3429414, at *6–7.
10
that the court-cost statutes and interconnected statutes directed that the funds
collected be expended for something that is a legitimate criminal-justice purpose.47
The Statutory Language
Article 102.011, entitled “Fees for services of Peace Officers,” provides:
(a) A defendant convicted of a felony or a misdemeanor shall pay the
following fees for services performed in the case by a peace officer:
...
(3) $5 for summoning a witness;
...
(j) In this article, “conviction” has the meaning assigned by Section
133.101, Local Government Code.
(b) In addition to fees provided by Subsection (a) of this article, a
defendant required to pay fees under this article shall also pay 29
cents per mile for mileage required of an officer to perform a service
listed in this subsection and to return from performing that service. If
the service provided is the execution of a writ and the writ is directed
to two or more persons or the officer executes more than one writ in a
case, the defendant is required to pay only mileage actually and
necessarily traveled. In calculating mileage, the officer must use the
railroad or the most practical route by private conveyance. . . This
subsection applies to:
(1) conveying a prisoner after conviction to the county jail;
(2) conveying a prisoner arrested on a warrant or capias issued in
another county to the court or jail of the county; and
(3) traveling to execute criminal process, to summon or attach a
witness, and to execute process not otherwise described by this
article.48
Article 102.011 does not allocate the witness-summoning fee or the mileage
fee to any specific fund, nor does the statute give any direction as to how the funds
47
See Peraza, 467 S.W.3d at 513–21.
48
Tex. Code Crim. Proc. Ann. art. 102.011.
11
collected should be expended.49 Under article 102.011’s unambiguous language,
the statute does not direct that the funds collected be expended for something that
is a legitimate criminal-justice purpose.50
That funds could be used for a legitimate criminal-justice purpose does not
satisfy the Salinas legal standard.51 In assessing what constitutes a legitimate
criminal-justice purpose, we must look to what article 102.011 and any
interconnected statute say about the intended use of the funds — not to the actual
use of the funds.52 The Salinas court concluded that directing court costs to fund
the “Comprehensive Rehabilitation” account — a general-revenue fund dedicated
to providing rehabilitation services — violated the Texas Constitution’s separation-
of-powers clause.53 In rejecting the notion that the account helps people with
rehabilitation from injuries that easily could be caused by crime, the Court of
Criminal Appeals noted that the statute did not (1) describe the functions or
services being funded, (2) impose a criminal-justice restriction on the use of the
funds, or (3) mention a criminal-justice purpose.54 According to Salinas, to pass
muster under the separation-of-powers clause, article 102.011 or an interconnected
statute must direct that the funds collected be expended for something that is a
legitimate criminal-justice purpose.55 The statute’s constitutionality depends on it.
Like Local Government Code section 133.102, which the Court of Criminal
Appeals found unconstitutional in Salinas, article 102.011 fails to limit the use of
49
See id.
50
See id.; Salinas, 523 S.W.3d at 106–10, nn. 26 & 36.
51
See Salinas, 523 S.W.3d at 106–10, nn. 26 & 36; Hernandez, 2017 WL 3429414, at 6–7.
52
See Salinas, 523 S.W.3d at 106–10, nn. 26 & 36; Hernandez, 2017 WL 3429414, at 6–7.
53
See Salinas, 523 S.W.3d at 107–08.
54
See id. at 108.
55
See id. at 106–10, nn. 26 & 36.
12
the funds collected to serving a criminal-justice purpose.56 Article 102.011 does
not say a word about how the collected funds should be spent or where they should
be held.57 Under article 102.011’s plain language, the statute does not direct that
the funds collected be expended for something that is a legitimate criminal-justice
purpose.58
The majority concludes that article 102.011 explicitly directs the payment of
the witness-summoning fee and mileage fee for services performed in connection
with the recoupment of the costs of summoning witnesses for criminal trials.59 The
majority also concludes that the witness-summoning fee “is an actual recoupment
of the out of pocket expenses incurred for summoning witnesses and for associated
mileage.”60 But the majority uses its own metric to measure constitutionality.
This court cannot insert saving language into the statute nor turn away from
the high court’s standard. Changing the metric could change the outcome.
Article 102.011(a)(3) simply says that “[a] defendant convicted of a felony
or a misdemeanor shall pay the following fees for services performed in the case
by a peace officer: . . . $5 for summoning a witness.”61 Under article 102.011(b),
a defendant required to pay fees under article 102.011(a) also must pay 29 cents
per mile for mileage required of an officer to perform a service listed in article
102.011(a) and to return from performing that service. 62 Under the statute’s plain
56
Compare Local Govt. Code Ann. § 133.102 (West, Westlaw through 2017 1st C.S.) with Tex.
Code Crim. Proc. Ann. art. 102.011.
57
See Tex. Code Crim. Proc. Ann. art. 102.011.
58
See Salinas at 106–10, nn. 26 & 36.
59
See ante at 14.
60
See id.
61
Tex. Code Crim. Proc. Ann. art. 102.011(a).
62
See id.
13
language the convicted defendant must pay a fee based a peace officer’s services.63
The statute does not provide, as the majority concludes, that the witness-
summoning fee or the mileage fee is an actual recoupment of out-of-pocket
expenses incurred for summoning witnesses and for associated mileage.
The statute does not state that the purpose of the fee is to reimburse the
peace officer.64 Article 102.011 does not state that the funds collected under article
102.011(a)(3) or article 102.011(b) should be expended for the reimbursement of
any peace officer.65 The fact that a peace officer’s services trigger these fees does
not mean that the purpose of the fee is to reimburse the peace officer or his
employer. Even if reimbursement of a peace officer or the peace officer’s
employer would be for a legitimate criminal-justice purpose, article 102.011 does
not direct that the funds collected under article 102.011(a)(3) be expended for this
purpose.66
A divided panel of the First Court of Appeals recently concluded in the Allen
case that article 102.011(a)(3) does not facially violate the separation-of-powers
clause.67 That court did not address whether article 102.011(a)(3) satisfies the
Salinas standard but suggested that the statute does not.68 Taking a different
approach, the Allen court reasoned that the Salinas standard does not apply to court
costs used to reimburse criminal-justice expenses incurred in connection with that
criminal prosecution.69 According to the Allen court, the Peraza court held “that at
63
See id.
64
See id.
65
See id.
66
See id.
67
See Allen v. State, No. 01-16-00768-CR, 2018 WL 4138965, at *4–9 (Tex. App.—Houston
[1st Dist.] Aug. 30, 2018, pet. granted).
68
See id. at *8–9.
69
See id. at *7–9.
14
least two types of fees assessed as court costs are constitutionally permissible: (1)
court costs to reimburse criminal-justice expenses incurred in connection with that
criminal prosecution and (2) court costs to be expended in the future to off-set
future criminal-justice costs.”70 The Allen court reasoned that Peraza created one
legal standard for court costs that reimburse expenses incurred in connection with
that criminal prosecution and another legal standard for all other court costs.71
That is not what Peraza says.
According to the Allen court, the Salinas court dealt with the second legal
standard and did not change the first legal standard under Peraza.72 Applying an
analysis similar to the Allen court, today the majority likewise revamps the high
court’s legal standard, pronouncing that if a statute imposes court costs related to
the recoupment of costs of judicial resources, then under Peraza the statute does
not facially violate the Texas Constitution’s separation-of-powers provision, even
if no statute directs the funds collected to be used for something that is a legitimate
criminal-justice purpose.73
The Allen court and the majority have misinterpreted Peraza and Salinas.
The Peraza court articulated a single legal standard for deciding whether a party
has shown that a court-cost statute facially violates the Texas Constitution’s
separation-of-powers clause, and the high court did not state that this standard
would vary depending on the type of court-cost statute under scrutiny.74 The
Salinas court re-stated this single legal standard in a similar way, using slightly
70
Id. at *7.
71
See id.
72
See id. at *8–9.
73
See ante at 12–14.
74
See Peraza, 467 S.W.3d at 513–21.
15
different words.75 Therefore, the Salinas standard applies to appellant’s fourth
issue.76 Under Salinas, the failure of article 102.011 or an interconnected statute to
direct the funds collected to be used for something that is a legitimate criminal-
justice purpose would mean article 102.011(a)(3) facially violates article II, section
I of the Texas Constitution.77
This court should (1) conclude that under precedent from the Court of
Criminal Appeals, to be constitutional each challenged statute or a statute
interconnected with the challenged statute must direct the funds collected to be
used for something that is a legitimate criminal-justice purpose; (2) hold that
neither article 102.011(a)(3) nor article 102.011(b) directs the funds collected to be
so used; and (3) determine whether any interconnected statute directs that the funds
collected be used for something that is a legitimate criminal-justice purpose.
Because the court fails to do so, I respectfully dissent.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Christopher and Jamison.
(Jamison, J., majority).
Publish — Tex. R. App. P. 47.2(b).
75
See Salinas, 523 S.W.3d at 106–10; Peraza, 467 S.W.3d at 513–21.
76
See Salinas, 523 S.W.3d at 106–10; Peraza, 467 S.W.3d at 513–21.
77
See Salinas, 523 S.W.3d at 107–10.
16