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Joe Frank WASHINGTON, Appellant v. The STATE of Texas, Appellee
In two issues, appellant, Joe Frank Washington, argues that: (1) the Sheriff's Commitment Fee and the Warrant Fee under article 102.011(a)(2) and (a)(6) of the Code of Criminal Procedure are facially unconstitutional, see Tex. Code Crim. Proc. Ann. art. 102.011(a)(2), (a)(6) (West Supp. 2019); and (2) the trial court's judgments erroneously indicate that he pleaded “true” to the first three allegations contained in the State's motion to revoke. We affirm as modified.
In the instant case, Washington was charged by indictment with two counts of retaliation. Pursuant to a plea agreement with the State, Washington pleaded guilty to the charged offenses. The trial court accepted Washington's guilty plea, found him guilty of the charged offenses, sentenced him to ten years' imprisonment with a $250 fine for each count, suspended the sentences, and placed him on community supervision for ten years.
Thereafter, the State filed a motion to revoke Washington's community supervision, alleging four violations of his community supervision. The State later amended its motion to revoke to include a fifth violation.
The trial court conducted a hearing on the State's amended motion to revoke. At this hearing, Washington represented himself with standby counsel, and the trial court entered a plea of “not true” on Washington's behalf as to each of the alleged violations. At the conclusion of the hearing, the trial court found the first three allegations contained in the State's motion to revoke to be “true” and the last two allegations to be “not true.” Accordingly, the trial court revoked Washington's community supervision, assessed punishment at ten years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice with a $250 fine for each count, and ordered the sentences to run concurrently. Washington filed a pro se motion for new trial, which was overruled by operation of law. See Tex. R. App. P. 21.8(c). This appeal followed.
II. Constitutionality of Article 102.011 of the Code of Criminal Procedure
In his first issue, Washington contends that the Sheriff's Commitment Fee and the Warrant Fee, as outlined in article 102.011(a)(2) and (a)(6) of the Code of Criminal Procedure, are facially unconstitutional because they violate the Separation-of-Powers provision of the Texas Constitution.
Washington did not object to the imposition of court costs in the trial court. The order to withdraw funds was generated the same day as the judgment on May 3, 2019, but was not clearly incorporated into the judgment. The judgment includes a blank for “court costs,” which states “SEE BELOW.” The judgment also includes a statement where: “The Court orders the clerk to collect the court costs”—none of which are delineated in the judgment. The separate order to withdraw funds indicates that $55 in court costs should be withdrawn from Washington's inmate account.
Convicted defendants may object to the assessment of mandatory court costs against them for the first time on appeal when the judgment does not contain an itemization of the imposed court costs. London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016); see Bowden v. State, 502 S.W.3d 913, 914 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd). Because article 102.011 fees are mandatory court costs imposed upon conviction for a felony or misdemeanor for services performed in the case by a peace officer, and because the judgment in this case does not contain an itemization of the imposed court costs, we conclude that preservation of this complaint was not required. See Tex. Code Crim. Proc. Ann. art. 102.011(a) (providing 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 ․”); London, 490 S.W.3d at 507; Bowden, 502 S.W.3d at 914. We now analyze the constitutionality of the statute.
We review the constitutionality of a criminal statute de novo as a question of law. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When reviewing the constitutionality of a statute, we presume that the statute is valid and that the legislature was neither unreasonable nor arbitrary in enacting it. See Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002); see also State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). 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). Moreover “[a] reviewing court must make every reasonable presumption in favor of the statute's constitutionality, unless the contrary is clearly shown.” Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015) (internal citations omitted). The burden of establishing the unconstitutionality of a statute falls on the party seeking to challenge the statute. Rosseau, 396 S.W.3d at 557.
In the instant case, Washington makes a facial challenge to the constitutionality of article 102.011(a)(2) and (a)(6) of the Code of Criminal Procedure. A facial challenge is an attack on a statute itself, as opposed to a particular application. Peraza, 467 S.W.3d at 514. As such, the challenger must establish that “no set of circumstances exists under which the statute would be valid.” Id.; see Rosseau, 396 S.W.3d at 557 (holding that a party asserting a facial challenge “must establish that the statute always operates unconstitutionally in all possible circumstances”). “A facial challenge to a statute is the most difficult challenge to mount successfully because the challenger must establish that no set of circumstances exists under which the statute will be valid.” Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992).
When analyzing a facial challenge to court costs, we consider only applications of the statute that it authorizes or prohibits. See Peraza, 467 S.W.3d at 515. We do not theorize where funds collected and distributed might be spent when evaluating the facial constitutionality of a court cost. See id.
Washington's facial challenge is rooted in the separation-of-powers provision of the Texas Constitution. See Tex. Const. art. II, § 1.
This provision expressly guarantees that our three branches of government—legislative, executive, and judicial—are separate and distinct branches, “and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others” unless expressly permitted in the Constitution. Id. “This division ensures that power granted one branch may be exercised by only that branch, to the exclusion of others.” Ex parte Lo, 424 S.W.3d 10, 28 (Tex. Crim. App. 2013) (op. on State's motion for reh'g). One way the separation of powers provision is violated is when “one branch of government assumes or is delegated a power ‘more properly attached’ to another branch.” Id. (quoting Ex parte Gill, 413 S.W.3d 425, 431-32 (Tex. Crim. App. 2013)).
Allen v. State, PD-1042-18, ––– S.W.3d. ––––, –––– – ––––, 2019 WL 6139077, at **4, 2019 Tex. Crim. App. LEXIS 1172, at **8-9 (Tex. Crim. App. Nov. 20, 2019).
Similar to the argument in Allen, Washington contends that the Sheriff's Commitment Fee and the Warrant Fee violates the separation-of-powers clause because the judicial branch has no taxing authority. See Tex. Const. art. V.
The authority to impose taxes is vested in the legislative branch, and the authority to collect taxes is delegated to the executive branch. Id. arts. III, IV, VIII. In view of this division of power, we have held that “[t]he courts are delegated a power more properly attached to the executive branch if a statute turns the courts into ‘tax gatherers[.]’ ” Salinas [v. State], 523 S.W.3d [103,] 107 [(Tex. Crim. App. 2017)] (citing Peraza, 467 S.W.3d at 517). But we have further recognized that, under certain circumstances, a court's collection of fees in a criminal case is a proper part of the judicial function and does not constitute an impermissible tax. Id.
Allen, ––– S.W.3d. at –––– – ––––, 2019 WL 6139077, at *4, 2019 Tex. Crim. App. LEXIS 1172, at **9-10.
[I]f 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, then the statute allows for a constitutional application that will not render the courts tax gatherers in violation of the separation of powers clause. A criminal justice purpose is one that relates to the administration of our criminal justice system. Whether a criminal justice purpose is “legitimate” is a question to be answered on a statute-by-statute/case-by-case basis.
Peraza, 467 S.W.3d at 517-18 (footnotes & citations omitted).
Two types of court-costs statutes pass constitutional muster: (1) statutes under which a court recoups expenditures necessary or incidental to a criminal trial; and (2) statutes providing for an allocation of costs to be expended for any legitimate criminal justice purpose. Moliere v. State, 574 S.W.3d 21, 28 (Tex. App.—Houston [14th Dist.] 2018, pet. ref'd) (citation omitted). “An analysis of whether a statute falls within the first category is backward-looking, while an analysis under the second category is forward-looking.” Id.
The parties do not dispute that article 102.011(a)(2) and (a)(6) of the Code of Criminal Procedure relates to the recoupment of judicial resources. See Tex. Code Crim. Proc. Ann. art. 102.011 (entitled “Reimbursement Fees for Services of Peace Officers”). Nor do the parties contest whether the fees prescribed in article 102.011(a)(2) and (a)(6) are necessary and incidental to a criminal trial. See id. art. 102.011(a)(2) (prescribing a $50 fee “for executing or processing an issued arrest warrant, capias, or capias pro fine ․”); see also id. art. 102.011(a)(6) (prescribing a $5 fee for “commitment or release”).
Rather, the crux of Washington's argument in this issue is that, though the Sheriff's Commitment Fee and the Warrant Fee are collected for a legitimate criminal justice purpose, the court costs must also be expended for a legitimate criminal justice purpose. And because the Sheriff's Commitment Fee and the Warrant Fee are purportedly deposited into the general revenue fund, they are not expended for a legitimate criminal justice purpose and, thus, are not constitutional.
In Allen, the Court of Criminal Appeals recently rejected the same analysis used by Washington. See ––– S.W.3d. at –––– – ––––, 2019 WL 6139077, at **6-8 , 2019 Tex. Crim. App. LEXIS 1172, at **16-20 (concluding that article 102.011(a)(3) and (b) are not facially unconstitutional because the legitimate purpose of the fee is satisfied as soon as the expenses are incurred by the peace officer performing the services, and because “the collected costs do not have to also serve a legitimate criminal justice purpose in the way they are used after collection, and the statute need not specify how the collected funds will be used”). Specifically, the Allen Court “concluded 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.” Id. at ––––, at **6, 2019 Tex. Crim. App. LEXIS 1172, at *16. Because article 102.011(a)(2) and (a)(6) are reimbursement-based court-costs provisions, and because we are duty-bound to follow the precedent of the Court of Criminal Appeals, we reject Washington's constitutional claim in this issue. See id.; Moliere, 574 S.W.3d at 28 (noting that statutes that recoup expenditures necessary and incidental to a criminal trial are backward-looking); see also McKinney v. State, 177 S.W.3d 186, 192 (Tex. App.—Houston [1st Dist.] 2005), aff'd, 207 S.W.3d 366 (Tex. Crim. App. 2006) (stating that an intermediate appellate court must follow binding precedent of the Court of Criminal Appeals). We overrule Washington's first issue.
III. The Trial Court's Judgments
In his second issue, Washington argues that the trial court's judgments erroneously reflect that he pleaded “true” to the first three allegations of the State's amended motion to revoke. The State agrees that Washington pleaded “not true” to all of the allegations contained in the State's amended motion to revoke and asserts that the judgments should be modified to reflect as such.
An appellate court has authority to reform a judgment to make the record speak the truth when the matter has been called to its attention by any source. See Tex. R. App. P. 43.2(b); see also Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992).
In the instant case, the record reflects that Washington represented himself at trial with the assistance of standby counsel. After the State read the allegations contained in its amended motion to revoke, the trial court entered a plea of “not true” on Washington's behalf. However, the judgments erroneously indicate that Washington pleaded “true” to the first three allegations in the State's amended motion to revoke. Because the record shows a plea of “not true” entered on Washington's behalf as to all of the State's allegations in the amended motion to revoke, we modify the language in the judgments to reflect that Washington pleaded “not true” to all allegations in the State's amended motion to revoke. See Tex. R. App. P. 43.2(b); see also Bigley, 865 S.W.2d at 27-28; French, 830 S.W.2d at 609. We therefore sustain Washington's second issue.
Based on the foregoing, we modify the trial court's judgments to reflect that Washington pleaded “not true” to all allegations in the State's amended motion to revoke. We affirm the judgments in all other respects.
JOHN E. NEILL, Justice
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Docket No: No. 10-19-00204-CR
Decided: December 18, 2019
Court: Court of Appeals of Texas, Waco.
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