Ruben Lee Allen v. State

Opinion

Opinion issued August 30, 2018

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-16-00768-CR ——————————— RUBEN LEE ALLEN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court Harris County, Texas Trial Court Case No. 1487627

OPINION ON REHEARING1

1 The State filed a motion for en banc reconsideration of our opinion of November 28, 2017. We withdrew the earlier opinion and judgment. We issue this opinion and accompanying judgment in their stead. A jury found Ruben Lee Allen guilty of the offense of aggravated robbery

with a deadly weapon2 and assessed punishment at 25 years’ confinement. In two

issues, Allen contends that the trial court lacked jurisdiction over this case and that

a $200 “summoning witness/mileage” fee3 assessed against him after his conviction

is unconstitutional.

We affirm.

Background

K. Rajan is a pharmacist at the BZ Pharmacy in Harris County, Texas. While

he was alone in the pharmacy, three men entered the store, and one of the men

pointed a firearm at him as they robbed the pharmacy of money, mediations, and

various items from the pharmacy safe. Fingerprints recovered during the police

investigation were linked to Allen, who was later convicted of aggravated robbery

with a deadly weapon. The jury assessed punishment at 25 years’ confinement.

In the judgment of conviction, the trial court ordered Allen to pay court costs,

which included a $200 charge for “summoning witness/mileage.”4 He appeals.

2 See TEX. PENAL CODE § 29.03(a)(2). 3 See TEX. CODE CRIM. PROC. art. 102.011(a)(3), (b) (imposing $5 charge on defendant convicted of felony “for summoning [each] witness” and requiring defendant to pay “29 cents per mile for mileage required of an officer to perform a service . . . and to return from performing that service”). 4 See id.

2 Jurisdiction

In his first issue, Allen argues that the trial court, the 337th District Court of

Harris County, Texas, lacked jurisdiction over this case because the underlying

indictment was presented to the grand jury of the 230th District Court of Harris

County, Texas. The State asserts that Allen waived his complaint by not first raising

this procedural matter in the trial court.

The Code of Criminal Procedure sets forth the organization and duties of a

grand jury. See TEX. CODE CRIM. PROC. arts. 19.01–20.22. A trial court forms,

impanels, and empowers a grand jury to inquire into indictable offenses, including

aggravated robbery with a deadly weapon. See TEX. CODE CRIM. PROC. art. 20.09

(“The grand jury shall inquire into all offenses liable to indictment of which any

member may have knowledge, or of which they shall be informed by the attorney

representing the State, or any other credible person.”); Ex parte Edone, 740 S.W.2d

446, 448 (Tex. Crim. App. 1987) (“Once formed and impaneled by the district judge,

the grand jury shall inquire into all offenses liable to indictment” (internal quotations

omitted)); Davis v. State, 519 S.W.3d 251, 254 (Tex. App.—Houston [1st Dist.]

2017, pet. ref’d). Because a grand jury’s deliberations are secret, it retains a “separate

and independent nature from the court.” Ex parte Edone, 740 S.W.2d at 448.

3 After hearing testimony, a grand jury then votes concerning the presentment

of an indictment.5 See TEX. CODE CRIM. PROC. art. 20.19 (“After all the testimony

which is accessible to the grand jury shall have been given in respect to any criminal

accusation, the vote shall be taken as to the presentment of an indictment . . . .”);

Bourque v. State, 156 S.W.3d 675, 678 (Tex. App.—Dallas 2005, pet. ref’d) (grand

jury “hears all the testimony available before voting on whether to indict the

accused”).

If “nine grand jurors concur in finding the bill,” the State prepares the

indictment and the grand jury foreman signs it and delivers it to the judge or the

clerk of the court. TEX. CODE CRIM. PROC. arts. 20.19–.21; Bourque, 156 S.W.3d at

678. An indictment is considered “‘presented’ when it has been duly acted upon by

the grand jury and received by the court.” TEX. CODE CRIM. PROC. art. 12.06; see

Henderson v. State, 526 S.W.3d 818, 819 (Tex. App.—Houston [1st Dist.] 2017,

pet. ref’d). Thus, presentment occurs when an indictment is delivered to either the

judge or the clerk of the court. TEX. CODE CRIM. PROC. art. 20.21; State v. Dotson,

224 S.W.3d 199, 204 (Tex. Crim. App. 2007).

The district clerk for each county “is the clerk of the court for all the district

courts in that county.” Henderson, 526 S.W.3d at 820 (quoting Ex parte Alexander,

5 An indictment is “a written instrument presented to a court by a grand jury charging a person with the commission of an offense.” TEX. CONST. art. V, § 12(b); see TEX. CODE CRIM. PROC. art. 21.02 (setting out requirements of indictment).

4 861 S.W.2d 921, 922 (Tex. Crim. App. 1993), superseded by statute on other

grounds as stated in Ex parte Burgess, 152 S.W.3d 123, 124 (Tex. Crim. App.

2004)). “The fact that a signed indictment features an original file stamp of the

district clerk’s office is strong evidence that a returned indictment was ‘presented’

to the court clerk within the meaning of Article 20.21.” Dotson, 224 S.W.3d at 204

(because indictment “bears an original file stamp, that fact convincingly shows the

presentment requirement was satisfied”). Once an indictment is presented,

jurisdiction vests with the trial court. TEX. CONST. art. V, § 12(b); Dotson, 224

S.W.3d at 204.

All state district courts within the same county have jurisdiction over cases in

that county, and criminal district courts have original jurisdiction over felony

criminal cases in that county. See TEX. CODE CRIM. PROC. art. 4.05; TEX. GOV’T

CODE § 74.094; Henderson, 526 S.W.3d at 820; Davis, 519 S.W.3d at 254. In

counties having two or more district courts, the judges of the courts “may adopt rules

governing the filing and numbering of cases, the assignment of cases for trial, and

the distribution of the work of the courts as in their discretion they consider

necessary or desirable for the orderly dispatch of the business of the courts.” TEX.

GOV’T CODE § 24.024; see id. § 74.093 (addressing adoption of local rules of

administration to provide, in part, for assignment, docketing, transfer, and hearing

of all cases); Henderson, 526 S.W.3d at 820; Davis, 519 S.W.3d at 255.

5 In multi-court counties, such as Harris County, a specific district court may

impanel a grand jury, but it does not necessarily follow that all cases considered by

that court’s grand jury are assigned to that court. See Henderson, 526 S.W.3d at 820;

Davis, 519 S.W.3d at 255 (“If a grand jury in one district court returns an indictment

in a case, the case nevertheless may be then assigned to any district court within the

same county.”); Hernandez v. State, 327 S.W.3d 200, 204 (Tex. App.—San Antonio

2010, pet. ref’d); Bourque, 156 S.W.3d at 678; Tamez v. State, 27 S.W.3d 668, 670

n.1 (Tex. App.—Waco 2000, pet. ref’d) (noting that “the judges of the Harris County

district courts exercising criminal jurisdiction have adopted a procedure by which

indictments are filed in each court on a rotating basis without reference to the court

which empaneled the grand jury presenting the indictments”); see also Shepherd v.

State, No. 01-16-00748-CR, 2017 WL 2813165, at *1 (Tex. App.—Houston [1st

Dist.] June 29, 2017, pet. ref’d) (mem. op., not designated for publication). In other

words, one court may impanel a grand jury, and if an indictment is presented, the

case may be filed in another court of competent jurisdiction within the same county.

See Aguillon v. State, No. 14-17-00002-CR, 2017 WL 3045797, at *2 (Tex. App.—

Houston [14th Dist.] July 18, 2017, pet. ref’d) (mem. op., not designated for

publication); Cannon v. State, No. 05-13-01109-CR, 2014 WL 3056171, at *4 (Tex.

App.—Dallas July 7, 2014, no pet.) (mem. op., not designated for publication);

6 Thornton v. State, No. 05-13-00610-CR, 2014 WL 2946457, at *3 (Tex. App.—

Dallas May 6, 2014, no pet.) (mem. op., not designated for publication).

The 230th and 337th District Courts are both criminal district courts in Harris

County, Texas. They both share the same clerk, i.e., the Harris County District Clerk,

and have original jurisdiction in felony criminal cases. On November 6, 2015, the

State filed in the 337th District Court a complaint, alleging that Allen committed the

offense of armed robbery. A month later, the grand jury returned a true bill of

indictment concerning the same conduct. See TEX. CONST. art. V, § 12(b); TEX.

CODE CRIM. PROC. art. 21.02 (setting out requirements of indictment); State v. Smith,

957 S.W.2d 163, 164–65 (Tex. App.—Austin 1997, no pet.) (describing

“constitutional requisites for an indictment”). That indictment was presented to the

Harris County District Clerk, as demonstrated by the clerk’s original file stamp, and

filed in the 337th District Court, the trial court where the State’s complaint was

originally filed. See Shepherd, 2017 WL 2813165, at *1 (“After the grand jury votes

concerning presentment of an indictment, the State can file in any court that has

jurisdiction over the case.”).

As additional evidence that the indictment was acted upon by the grand jury

and presented to, or received by, the 337th District Court, the grand jury foreman

signed the indictment, the trial court directed the State to read the indictment to Allen

in open court pretrial, and it accepted Allen’s plea of “not guilty.” See Henderson,

7 526 S.W.3d at 820 (“Logically, [defendant]’s arraignment . . . could not have

occurred in the 177th District Court if the trial court had not actually received the

indictment.”); see also TEX. CODE CRIM. PROC. art. 12.06 (stating presentment

occurs when indictment “has been duly acted upon by the grand jury and received

by the court”). Thus, the 337th District Court was properly vested with jurisdiction

over Allen. See TEX. CODE CRIM. PROC. arts. 4.05, 4.16; see also Aguillon, 2017 WL

3045797, at *2 (although amended indictment signed by foreman of grand jury

impaneled by 177th District Court, 184th District Count had jurisdiction when

amended indictment refiled in 184th District Court, which had “first-filed related

case”); Helsley, 2017 WL 931707, at *2 (stating that when evidence of presentment

appears in record, trial court has jurisdiction to try defendant for charges

encompassed by indictment); Williams v. State, No. 06-14-00224-CR, 2015 WL

4071542, at *4 (Tex. App.—Texarkana July 6, 2015, no pet.) (mem. op., not

designated for publication) (although indictment was presented by grand jury

impaneled by 291st District Court, case was first filed in 282nd District Court, which

obtained jurisdiction); Paz v. State, No. 05-14-01127-CR, 2015 WL 6386424, at *10

(Tex. App.—Dallas Oct. 22, 2015, no pet.) (mem. op., not designated for

publication) (“Jurisdiction over felony cases, such as this case, lies in the district

court or criminal district court where the indictment is first filed.”).

8 Allen argues that a grand jury impaneled by one trial court cannot present an

indictment to a different trial court because a grand jury serves one particular court.

However, this Court has expressly rejected this argument on at least four previous

occasions. See Henderson, 526 S.W.3d at 819–21 (rejecting argument 177th District

Court of Harris County, Texas never acquired jurisdiction over defendant because

grand jury from 182nd District Court of Harris County, Texas presented indictment);

Shepherd, 2017 WL 2813165, at *1; Hernandez v. State, No. 01-15-00837-CR, 2017

WL 1416877, at *2 (Tex. App.—Houston [1st Dist.] Apr. 20, 2017, pet. ref’d) (mem.

op., not designated for publication) (rejecting argument that 263rd District Court of

Harris County, Texas, lacked jurisdiction because grand jury of 184th District Court

of Harris County, presented indictment); Davis, 519 S.W.3d at 254–56 (rejecting

similar argument). We have repeatedly held that a trial court is not deprived of

jurisdiction over a criminal defendant in these circumstances. See, e.g., Henderson,

526 S.W.3d at 819–21; Shepherd, 2017 WL 2813165, at *1; Hernandez, 2017 WL

1416877, at *2; Davis, 519 S.W.3d at 254–56. Our sister court has likewise rejected

this argument. Johnson v. State, No. 14-16-00658-CR, 2018 WL 1476275, at *2

(Tex. App.—Houston [14th Dist.] Mar. 27, 2018, no pet. h.); see Hines v. State,

No. 05-17-00416-CR, 2017 WL 6276005, at *1 (Tex. App.—Dallas Dec. 11, 2017,

no pet.) (same).

9 Moreover, Allen’s arguments raise a procedural issue related to his

indictment. See Henderson, 526 S.W.3d at 821; Shepherd, 2017 WL 2813165, at *1;

Hernandez, 2017 WL 1416877, at *2; Davis, 519 S.W.3d at 254–56. Although a

jurisdictional defect in an indictment may be challenged for the first time on appeal,

a procedural deficiency may not. See Cook, 902 S.W.3d at 480; Henderson, 526

S.W.3d at 821; Davis, 519 S.W.3d at 256; see also Mosley v. State, 354 S.W.2d 391,

393–94 (Tex. Crim. App. 1962); Lemasurier v. State, 91 S.W.3d 897, 899–900 (Tex.

App.—Fort Worth 2002, pet. ref’d) (holding defendant waived error regarding

procedural deficiency with indictment by failing to timely file plea to jurisdiction).

Allen did not object to the indictment or the proceedings in the trial court.

Accordingly, we hold that the trial court had jurisdiction over this case and

Allen’s failure to object to the indictment or the proceedings in the trial court

constitutes a waiver of his right to challenge any procedural irregularity related to

his indictment on appeal. See Henderson, 526 S.W.3d at 819–21; Hernandez, 2017

WL 1416877, at *2.

We overrule Allen’s first issue.

“Summoning Witness/Mileage” Fee

In his second issue, Allen argues that the “summoning witness/mileage” fee

assessed against him by the trial court is (1) facially unconstitutional because it

violates the separation-of-powers clause of the Texas Constitution and

10 (2) unconstitutional as applied to him because it violates his constitutional rights to

compulsory process and confrontation. See U.S. CONST. amend. VI; TEX. CONST. art.

I, § 10 (rights to compulsory process and confrontation), TEX. CONST. art. II, § 1

(separation of powers); see also TEX. CODE CRIM. PROC. art. 1.05.

A. Reviewing a facial challenge

Whether a criminal statute is constitutional is a question of law we review de

novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013); Maloney v. State,

294 S.W.3d 613, 626 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). When

reviewing a statute’s constitutionality, we “presume that the statute is valid and that

the legislature was neither unreasonable nor arbitrary in enacting it.” Curry v. State,

186 S.W.3d 39, 42 (Tex. App.—Houston [1st Dist.] 2005, no pet.); see Rodriguez v.

State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002) (stating that appellate court

addressing challenge to statute’s constitutionality must presume that statute is valid

and legislature has not acted unreasonably or arbitrarily); TEX. GOV’T CODE

§ 311.021 (noting that courts presume “compliance” with Texas and United States

Constitutions). We must uphold the statute if we can apply a reasonable construction

that will render it constitutional. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App.

[Panel Op.] 1979); see Maloney, 294 S.W.3d at 626 (if statute can be interpreted in

two ways, one of which sustains its validity, we apply interpretation sustaining its

11 validity). The party challenging the statute has the burden to establish its

unconstitutionality. Rodriguez, 93 S.W.3d at 69; Maloney, 294 S.W.3d at 626.

“A facial challenge is an attack on the statute itself as opposed to” its

application under a particular set of circumstances. Salinas v. State, 523 S.W.3d 103,

106 (Tex. Crim. App. 2017). To prevail, the party asserting a facial challenge “must

establish that the statute always operates unconstitutionally in all possible

circumstances.” Rosseau, 396 S.W.3d at 557; see Horhn v. State, 481 S.W.3d 363,

372 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d). It is, therefore, “the most

difficult challenge to mount successfully.” Santikos v. State, 836 S.W.2d 631, 633

(Tex. Crim. App. 1992); Toledo v. State, 519 S.W.3d 273, 279 (Tex. App.—Houston

[1st Dist.] 2017, pet. ref’d).

If a statute can be reasonably interpreted in a manner that does not offend the

constitution, a reviewing court must overrule a facial challenge to the statute’s

constitutionality. Curry, 186 S.W.3d at 42.

We first review Allen’s facial challenge to Article 102.011

B. Facial constitutionality of the “summoning witness/mileage” fee

Upon his conviction, Allen was assessed a “summoning witness/mileage” fee

of $200. Allen argues that the fee violates the separation-of-powers clause of the

Texas Constitution and constitutes an impermissible tax collected by the judiciary

because “the funds” received for the fee are “not directed by statute to be used for a

12 criminal justice purpose.” Instead, he argues, “the funds” are “directed towards the

general revenue fund of the county . . . in which the convicting court is located.”

1. Fees collected by courts as tax gatherers are unconstitutional

Article II, section 1, of the Texas Constitution provides:

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; see Meshell v. State, 739 S.W.2d 246, 252 (Tex. Crim. App.

1987) (observing that this clause divides Texas government into legislative,

executive, and judicial branches). “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 at 28; see Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39

S.W.3d 591, 600 (Tex. 2001) (“The separation-of-powers doctrine prohibits one

branch of government from exercising a power inherently belonging to another

branch.”); Meshell, 739 S.W.2d at 252 (stating that “any attempt by one department

of government to interfere with the powers of another is null and void.” (internal

quotations omitted)).

The separation-of-powers clause is violated “when one branch of government

assumes or is delegated a power more properly attached to another branch.” Ex parte

13 Lo, 424 S.W.3d at 28 (internal quotations omitted); see Salinas v. State, 523 S.W.3d

103, 106–07 (Tex. Crim. App. 2017). Texas courts have addressed a number of

separation-of-powers challenges to statutes that require trial courts to assess various

fees as court costs as part of criminal convictions. See, e.g., Salinas, 523 S.W.3d at

108–10; Peraza v. State, 467 S.W.3d 508 (Tex. Crim. App. 2015); Ex

Parte Carson, 159 S.W.2d 126 (Tex. Crim. App. 1942).

A court’s assessment of fees as part of court costs in a criminal case violates

the separation-of-powers clause when a court is delegated the executive branch’s

power to collect taxes. Salinas, 523 S.W.3d at 106–07; Peraza, 467 S.W.3d at 517.

On the other hand, a court’s assessment is a proper judicial function when “the

statute under which court costs are assessed (or an interconnected statute) provides

for an allocation of such court costs to be expended for legitimate criminal justice

purposes.” Salinas, 523 S.W.3d at 107, 109 n.26 (quoting Peraza, 467 S.W.3d at

517). In other words, a reviewing court must determine whether the fee is a disguised

tax on a criminal defendant (which is unconstitutional) or a fee for a legitimate

criminal justice purpose (which is constitutional). See Casas v. State, 524 S.W.3d

921, 925–27 (Tex. App.—Fort Worth 2017, no pet.) (“Although courts may not

operate as tax gatherers, which is a function reserved to the executive branch of

government, courts may collect fees in criminal cases as part of its judicial function

if” the fees reflect “legitimate criminal justice purposes.”). “What constitutes a

14 legitimate criminal justice purpose is a question to be answered on a

statute-by-statute/case-by-case basis.” Salinas, 523 S.W.3d at 107; see Peraza, 467

S.W.3d at 518.

Before Peraza, which was decided in 2015, the standard in Texas was that a

court cost had to be “necessary” and “incidental” to the trial of a criminal case to

withstand a facial challenge to its constitutionality. See Peraza, 467 S.W.3d at 517.

The Peraza Court noted alternative formulations of the rule in other jurisdictions,

including requiring that a court cost be “reasonably related to the costs of

administering the criminal justice system,” id. (discussing State v. Claborn, 870 P.2d

169 (Okla. Crim. App. 1994)), or that there “be a ‘direct relationship’ between the

type of offense” underlying the conviction and the cost of court being assessed, id.

(discussing State v. Young, 238 So. 2d 589 (Fla. 1970)).

The Peraza Court concluded that the existing Texas standard of

necessary/incidental was “too limiting” because there can be legitimate costs

incurred in the administration of the criminal justice system that are beneficial to the

system and worthy of recoupment even if they do not qualify as “‘necessary’ or

‘incidental’ to the trial of a criminal case.” Id. The Peraza Court rejected having a

narrow requirement that the costs be “‘necessary’ and ‘incidental’ to the trial of a

criminal case” because such a standard “ignores the legitimacy of costs that,

although not necessary to, or an incidental expense of, the actual trial of a criminal

15 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,” given that “the prosecution of criminal cases and our

criminal justice system have greatly evolved” to include advantageous processes that

exceed the bare minimum of necessity. Id. at 517. Instead, the Peraza Court

expanded the body of fees that could survive a facially unconstitutional challenge to

include those assessed under a statute that “provides for an allocation . . . to be

expended for legitimate criminal justice purposes” in the future, untied to the

specific expenses incurred in “the actual trial of a criminal case.” Id. (again, noting

that legitimate criminal justice purpose is one that “relates to the administration of

our criminal justice system”).

Under Peraza’s broader rule, a statute that requires a convicted defendant to

pay court costs that are “to be expended for legitimate criminal justice purposes” in

the future is constitutional even if those costs do not arise out of that particular

defendant’s prosecution and have no direct relationship to that particular type of

prosecution, so long as the costs are “directly related to the recoupment of costs of

judicial resources expended in connection with the prosecution of criminal cases

within our criminal justice system.” See id.

By concluding that the Carson standard was “too limiting” and expanding the

category of costs that can be properly assessed, Peraza suggests that a statute that

16 requires a convicted defendant to reimburse the State for court costs that have

already been “incurred in the administration of the criminal justice system” in that

prosecution remain proper and facially valid. Id. at 517; see id. at 510 (describing

that appellant’s constitutional challenge as focused on how assessed court costs “are

to be disbursed”). We, therefore, interpret Peraza as holding that at 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. Id. at 517–18.

After Peraza, the Court issued Salinas, in which it explained that whether a

future allocation relates to the administration of our criminal justice system depends

on “what the governing statute says about the intended use of the funds, not whether

[the] funds are actually used for a criminal justice purpose.” 523 S.W.3d at 107, 109

n.26; see Casas, 524 S.W.3d at 926. In other words, the relevant statute must direct

“that the funds be used for something that is a legitimate criminal justice purpose; it

is not enough that some of the funds may ultimately benefit someone who has some

connection with the criminal justice system.” Salinas, 523 S.W.3d at 109 n.26.

In Salinas, the Court addressed two fees that were part of a “consolidated court

cost” fee assessed by Local Government Code section 133.102. The collected fees

were directed to two accounts: (1) the “comprehensive rehabilitation” account and

17 (2) the “abused children’s counseling” account. The fees were not directly related to

costs that had been incurred in that defendant’s criminal matter. Nor were they

limited in their future uses to costs to be incurred for criminal justice purposes. The

Court held that the two fees violated the separation-of-powers clause of the Texas

Constitution. 523 S.W.3d at 105, 108–110 & n.26.

In addressing these fees, which were collected for a future use untied to that

particular criminal prosecution, the Court focused on how the statute required the

fees to be spent. The portion of the statute concerning the “comprehensive

rehabilitation” account did not, “on its face, appear to serve a legitimate criminal

justice purpose.” Id. at 108. It did not, for example, restrict rehabilitation services to

“anything relating to criminal justice.” Id. Nor did the statute require that the

government agency provide rehabilitation services only to crime victims. Id.

Similarly, the account into which the fees were deposited was not restricted to

criminal justice. The fund’s constitutionality was not saved by the fact that the

physical injuries that might require rehabilitation services “could easily” be “caused

by a crime.” Id. The Court concluded that the account did not qualify as an allocation

of funds “to be expended for legitimate criminal justice purposes.” Id. at 109.6

6 Since Salinas, the Court has reiterated that the “comprehensive rehabilitation” court cost is unconstitutional. See Johnson v. State, 537 S.W.3d 929 (Tex. Crim. App. 2017).

18 The Court held similarly with regard to the funds allocated to the “abused

children’s counseling” account. Id. Monies from this account were deposited into

the State’s general revenue fund. Id. at 110. The Court refused to uphold the

funding’s constitutionality “on the basis of its name” given that, through legislative

action, the collected fee no longer funded a counseling program for abused children

and, instead, went directly to the state’s “general revenue” account. Id.

With no connection to past incurred expenses in that particular prosecution or

future criminal justice expenditures, the statute imposing the fees was held to be

facially unconstitutional. See id. at 109 & n.26; Toomer v. State, No. 02-16-00058-

CR, 2017 WL 4413146, at *3 (Tex. App.—Fort Worth Oct. 5, 2017, no pet. h.)

(mem. op.); Casas, 524 S.W.3d at 927 (because “[n]either the statute authorizing the

collection of the emergency-services cost nor its attendant statutes direct the funds

to be used for a legitimate, criminal-justice purpose; . . . it is a tax that is facially

unconstitutional”); see also Peraza, 467 S.W.3d at 517 (holding that, “if [a] statute

under which court costs are assessed . . . provides for an allocation of . . . 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”).

Salinas did not involve court costs directly related to the trial of that particular

case. And, while Peraza expanded the category of costs that would be facially

19 constitutional and Salinas explained the standard for concluding that a future

allocation relates to the administration of our criminal justice system, neither case,

individually or collectively, explicitly address whether a court cost linked to an

expense incurred in the past in the criminal prosecution of the defendant and

collected to reimburse the cost of actually expended judicial resources must also be

specifically directed to a future use that is a criminal justice purpose. Toomer, 2017

WL 4413146, at *3–4. But that is the type of court cost being challenged here: a fee

to recoup criminal justice expenses actually incurred during the prosecution of that

particular criminal defendant.

Another distinguishable fee case is Hernandez v. State, No. 01-16-00755-CR,

— S.W.3d —, 2017 WL 3429414 (Tex. App.—Houston [1st Dist.] Aug. 10, 2017,

no pet. h.) (motion for rehearing pending). In Hernandez, a panel of this court held

that a $25 “district attorney fee” was unconstitutional “to the extent it allocate[d]

funds to the county’s general fund because those funds allow[ed] spending for” any

purpose. Id. at *7. The appellant argued that the $25 fee was unconstitutional

because of the way it would be spent after its collection. The State, in its brief,

likewise focused on the manner in which the fee would be spent in the future, arguing

that “so long as the funds can be spent,” at a later time, on a legitimate criminal

justice purpose, the fee does not violate Peraza.

20 Neither party argued—and the Hernandez opinion did not analyze—whether

the fee could survive a constitutional challenge looking back to the source of the fee

versus looking forward to how the collected fee might be spent, but Peraza supports

such an analysis: Peraza states that court costs are “intended by the Legislature” to

allow for a “recoupment of the costs of judicial resources expended in connection

with the trial of the case,” id. at 517 (quoting Weir v. State, 278 S.W.3d 364, 366

(Tex. Crim. App. 2009)), and it holds that permissible “court costs should be related

to the recoupment of costs of judicial resources.” Id. That language controls our

analysis of the constitutionality of a “summoning witness/mileage” fee assessed to

recoup out-of-pocket expenses incurred in the prosecution of the convicted

defendant who was assessed the fee being challenged.

In sum, the parties in Hernandez focused solely on whether the $25 fee fell

within the Peraza expansion covering fees that, “although not” involved in “the

actual trial of a criminal case, may nevertheless be directly related to the recoupment

of costs of judicial resources.” Because the fee here is an actual recoupment of out-

of-pocket expenses incurred in this particular case, it is different from the fee in

Hernandez, and Hernandez, therefore, does not direct the outcome of this fee

challenge.

21 2. The fee challenged in this appeal

The $200 fee Allen challenges was imposed under Article 102.011, which

provides as follows:

(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 witness . . . and . . . .

(b) . . . 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 . . . .

TEX. CODE CRIM. PROC. art. 102.011(a)(3), (b).

3. The challenged fee is for a direct expense incurred by the State

Allen contends that the “summoning witness/mileage” fee assessed against

criminal defendants, including Allen, pursuant to Texas Code of Criminal Procedure

article 102.011(a)(3) and (b), is facially unconstitutional because Salinas holds that

a statute that does not specifically identify a judicial purpose to which the fees are

to be directed violates the separation-of-powers clause.

Admittedly the statute assessing these fees, like the statute in Salinas, does

not require that the fee be deposited into a specific account for future criminal justice

expenses. But unlike the fee in Salinas, the “witness summoning/mileage” fee is an

expense incurred by the State in the prosecution of this particular case and is

unquestionably for a legitimate criminal justice purpose. See Salinas, 523 S.W.3d at

107, 109 n.26. The Salinas Court refused to uphold the constitutionality of the

22 “abused children’s counseling” fee that was not directly related to the particular

criminal case on appeal from a conviction for assault of an elderly person. Id. at 105.

And, unlike the “comprehensive rehabilitation” account, which did “not, on its face,

appear to serve a legitimate criminal justice purpose,” this “witness

summoning/mileage” fee does.

Salinas did not address reimbursement-based court costs. For this reason, we

conclude that Salinas does not apply to the “witness summoning/mileage” fee.7 We

conclude that Peraza’s reasoning is more appropriately applied to this fee because

the State is not relying on how the fee will be expended in the future, but, instead,

on the recoupment of actual expenses incurred as part of this case. And Salinas does

not purport to limit or modify Peraza’s focus on whether the fees are incurred as a

direct result of or reasonably related to the “recoupment of costs of judicial

resources,” which this fee unquestionably was. Peraza, 467 S.W.3d at 517.

Allen also relies on the Office of Court Administration’s website which shows

that, in regard to Article 102.011(a)(3) and (b), “100% of the money” collected from

the “summoning witness/mileage” fee remains “with the county or city which the

[c]ourt serves” and is directed to that county’s or city’s “General Fund.” See Office

7 The Fourteenth Court of Appeals has reached a different conclusion and held the fee unconstitutional. See Johnson v. State, No. 14-16-00658-CR, 2018 WL 1476275, at *4 (Tex. App.—Houston [14th Dist.] Mar. 27, 2018, no pet. h.). Johnson is pending rehearing before that court. 23 of Court Administration, Study of the Necessity of Certain Court Costs and Fees in

Texas (Sept. 1, 2014), at 12, 51 in Criminal Court Costs Section (Fee No. 26, “Peace

Officer Fee—Summoning a Witness”; Fee No. 118, “Peace Officer Fee—

Mileage”), http://www.txcourts.gov/media/495634/SB1908-Report-FINAL.pdf. Id.

And because the funds received from the “summoning witness/mileage” fee are

“directed to the General Fund (at both the State and local level),” they “need not be

spent only on law enforcement [purposes].” Id.

We are not persuaded that this report establishes that the statute imposing this

fee is unconstitutional for two reasons. First, the Salinas Court emphasized the

limited value of an OCA report that was not part of the record in the trial court. 8

Second, and more importantly, we have already 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.

8 While the Court cited government websites in its discussion of the facial constitutionality challenge to the “abused children’s counseling” fee, it specifically stated that it was not relying on the website but referring to it because it “simply illustrates the consequences of the Legislature’s” failure to direct that the money “be used for a criminal justice purpose.” Salinas, 523 S.W.3d at 110 n.36. Because courts in a facial constitutionality challenge must “consider the statute only as it is written, rather than how it [may operate] in practice,” it is improper for us to consider the actual use of the funds. 24 We conclude that Article 102.011(a)(3) and (b) are not facially

unconstitutional.

C. As-applied constitutionality of fee

Allen next argues that the $200 “summoning witness/mileage” fee is

unconstitutional as applied to him because it violates his constitutional rights to

compulsory process and confrontation. See U.S. CONST. amend. VI; TEX. CONST. art.

I, § 10 (rights to compulsory process and confrontation); see also TEX. CODE CRIM.

PROC. art. 1.05; TEX. R. APP. P. 47.1.

In an as-applied constitutional challenge, the challenger concedes the general

constitutionality of the statute but asserts that the statute is unconstitutional as

applied to his particular facts and circumstances. State ex rel. Lykos v. Fine, 330

S.W.3d 904, 910 (Tex. Crim. App. 2011). To prevail on this claim, it is not sufficient

to show that the statute may be unconstitutional as to others; instead, it must be

unconstitutional as applied to the challenger. Id. A reviewing court must review the

particular facts and circumstances of the case based on the record from the trial court.

Id. Arguments based on the statute’s hypothetical application are not relevant to an

as-applied challenge. London v. State, 526 S.W.3d 596, 599 (Tex. App.—Houston

We have previously rejected the same as-applied challenge in a similar case.

Id. In London, we observed that the defendant failed to identify additional witnesses

25 he could or would have called or any reason the statute is unconstitutional as applied

to him in particular. Id. The same is true here.

We overrule Allen’s second issue.

Conclusion

We affirm the judgment.

Harvey Brown Justice

Panel consists of Justices Jennings, Bland, and Brown.

Jennings, J., dissenting.

En banc reconsideration was requested. See TEX. R. APP. P. 49.7.

The en banc court has unanimously voted to deny the motion for en banc

reconsideration.

En banc court consists of Chief Justice Radack and Justices Jennings, Keyes, Higley,

Bland, Massengale, Brown, Lloyd, and Caughey.

Publish. TEX. R. APP. P. 47.2(b).