Hernandez, Nelson Alberto

• Court: Court of Criminal Appeals of Texas
• Decided: January 15, 2020
• Docket: PD-0036-19
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0036-19

NELSON ALBERTO HERNANDEZ, Appellant

v.

THE STATE OF TEXAS

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

Per curiam.

OPINION

Appellant was convicted of “assault-family member.” On appeal, he argued, inter

alia, that the judgment should be reformed to reflect a conviction for “assault,” and that the

$25 “district attorney” fee in the clerk’s bill of cost was unconstitutional. The Court of OROSCO - 2

Appeals rejected Appellant’s claim regarding the judgment but agreed that the “district

attorney” fee violated separation of powers because the Art. 102.008(a) “does not state where

the $25 fee is to be directed.” Hernandez. State, 562 S.W.3d 500 (Tex. App.–Houston [1 st

District] 2017).

Both Appellant and the State have filed petitions for discretionary review of this

decision. We refuse Appellant’s petition.

The State challenges the appellate court’s holding about the constitutionality of the

fee provided for in Art. 102.008(a). We recently handed down our opinion in Allen v. State,

No. PD-1042-18, 2019 Tex. Crim. App. LEXIS 1172 (Tex. Crim. App. November 22, 2019),

in which we held that “a reimbursement-based court-cost statute need not direct the collected

funds to be expended for a criminal justice purpose in order to comport with separation of

powers principles.”

The Court of Appeals in the instant case did not have the benefit of our opinion in

Allen. Accordingly, we grant the State’s petition for discretionary review, vacate the

judgment of the Court of Appeals, and remand this case to the Court of Appeals in light of

our opinion in Allen.

DATE DELIVERED: January 15, 2020

DO NOT PUBLISH