JOHNSON v. STATE

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Court of Appeals of Texas, Houston (14th Dist.).

Jermaine Earvin JOHNSON, Appellant v. The STATE of Texas, Appellee

NO. 14-16-00658-CR

Decided: March 27, 2018

Panel consists of Chief Justice Frost and Justices Boyce and Jewell. Eric Kugler, Kim K. Ogg, Houston, Clinton Morgan, for Appellee. Theodore Lee Wood, Austin, for Appellant.

OPINION

Appellant Jermaine Earvin Johnson challenges his conviction for aggravated robbery, asserting that the trial court lacked jurisdiction over his case because the grand jury for a different court returned the indictment under which he was convicted. Appellant also asserts that article 102.004(a) of the Texas Code of Criminal Procedure, which governs jury fees paid by defendants, violates the separation-of-powers provision of the Texas Constitution. We conclude the trial court had jurisdiction over the case and that under Salinas v. State, 523 S.W.3d 105, 106–10 (Tex. Crim. App. 2017), article 102.004(a) is facially unconstitutional in violation of the Texas Constitution's separation-of-powers provision. We modify the trial court's judgment to delete the jury fee and affirm the trial court's judgment as modified.

Factual and Procedural Background

The grand jury for the 209th District Court of Harris County returned an indictment against appellant for aggravated robbery. The Harris County District Clerk assigned the case to the 263rd District Court of Harris County and that court conducted a jury trial of the charged offense in the 263rd District Court. The jury found appellant guilty as charged and assessed punishment at 27 years' confinement. The trial court ordered appellant to pay court costs. The bill of costs, which totaled $334, included a $40 “jury fee” charge.

Issues and Analysis

Appellant raises three issues in this court:

(1) The 263rd District Court of Harris County did not have jurisdiction over appellant's case because the grand jury for the 209th District Court of Harris County (rather than the court in which appellant was convicted) returned the indictment.

(2) The jury fee is unconstitutional because having the trial court collect the fee makes the court a tax gatherer, which violates the Texas Constitution's separation-of-powers provision.

(3) The jury fee violates the accused's right to a jury trial enshrined in the Texas Bill of Rights.

A. Trial court's jurisdiction

Appellant contends that the trial court lacked jurisdiction over the case because the indictment—returned by the grand jury for the 209th District Court of Harris County—vested jurisdiction only in the 209th District Court.

District courts and criminal district courts hold original jurisdiction in felony criminal cases. Tex. Code Crim. Proc. Ann. art. 4.05 (West 2015); Matthews v. State, 530 S.W.3d 744, 746 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd). Jurisdiction vests in a trial court once a grand jury presents an indictment or information charging a person with committing an offense. Id. Presentment occurs when the grand jury delivers the indictment to either the judge or the clerk of the court. Tex. Code Crim. Proc. Ann. art. 20.21 (West 2015). In counties with more than one district court, such as Harris County, all the district courts share the same district clerk. See Saldivar v. State, No. 14-16-00888-CR, 2017 WL 4697888, at *1 (Tex. App.—Houston [14th Dist.] Oct. 19, 2017, no pet. h.). All district courts within the same county have jurisdiction over the same cases. See Matthews, 530 S.W.3d at 747.

Under Texas Government Code section 24.024, entitled “Filing and Docketing Cases,” the district courts may agree to transfer a case from one district court to another district court within the same county, even if a grand jury impaneled by a different district court returned the indictment. See Tex. Gov't Code Ann. § 24.024 (West, Westlaw through 2017 1st C.S.); Saldivar, 2017 WL 4697888, at *1.

In today's case, the grand jury for the 209th District Court returned the indictment and it was presented to the Harris County District Clerk, who then filed the indictment in the 263rd District Court of Harris County. The 263rd District Court, being a court within the same county as the 209th District Court, properly obtained jurisdiction over the case. See id.; Matthews, 530 S.W.3d at 746–47. Appellant's jurisdictional challenge lacks merit. Accordingly, we overrule appellant's first issue.

B. Constitutionality of Texas Code of Criminal Procedure article 102.004(a)

In his second issue, appellant asserts that the jury-fee statute violates the Texas Constitution's separation-of-powers provision because the jury 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 case addressing this issue. Article 102.004(a) of the Texas Code of Criminal Procedure imposes a $40 fee on a defendant convicted by a jury in a constitutional county court, a county court at law, or a district court. See Tex. Code Crim. Proc. Ann. art. 102.004(a) (West, Westlaw through 2017 1st C.S.). Appellant's argument amounts to a facial challenge to the constitutionality of article 102.004(a). Appellant contends that the jury fee is not a legitimate court cost because the Office of Court Administration has stated that, while the proceeds of the fee presumably are used for costs related to a jury, the statute does not explicitly limit the spending of the collected fees for the purpose of costs related to a jury.

Preservation-of-Error Analysis

At the threshold of our constitutional analysis, we consider preservation of error on this issue. We note that appellant did not object to the imposition of court costs in open court. The record shows the court assessed the bill of costs the same date as the judgment, but the bill of costs was not filed until three days after the judgment. Under the Court of Criminal Appeals's precedent in Johnson v. State, appellant may challenge this mandatory court cost for the first time on appeal. See No. PD-1254-15, 2017 WL 4414026, at *1 (Tex. Crim. App. Oct. 4, 2017) (per curiam). Preservation of error is not required in this context.

Facial-Challenge Analysis

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). A facial challenge is an attack on a statute itself as opposed to a particular application. Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015). The challenger must establish that no set of circumstances exists under which the statute would be valid. Id. Under the proper facial-challenge analysis, courts consider only applications of a statute in which the statute actually authorizes or prohibits conduct. Id.

Separation-of-Powers Provision

The Texas Constitution expressly guarantees the separation of powers among the three branches of government. Tex. Const. art. II, § 1; Salinas v. State, 523 S.W.3d 103, 106 (Tex. Crim. App. 2017). Article II, section 1 of the Texas Constitution 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 section ensures that the powers granted to one governmental branch may be exercised only by that branch, to the exclusion of the other branches. Ex parte Lo, 424 S.W.3d at 28. When one branch of government assumes or is delegated a power more properly attached to another branch, that assumption or delegation of power violates the separation-of-powers provision. Salinas, 523 S.W.3d at 106–07. If a statute turns the courts into tax gatherers, then the statute delegates to the courts a power more properly attached to the executive branch. Id. at 107.

Legal Standard for Facial Challenge to Court-Cost Statute under Separation-of-Powers Provision

We look to Court of Criminal Appeals's precedent to determine the legal standard by which we should analyze appellant's constitutional challenge. In Peraza, the Court of Criminal Appeals stated that “court costs should be related to the recoupment of costs of judicial resources.” See Peraza, 467 S.W.3d at 517. The high court also indicated that, court-cost statutes under which the court recoups costs that are necessary and incidental to the trial of a criminal case are constitutionally valid. See id. Nonetheless, the Peraza court concluded that “necessary and incidental to the trial of a criminal case” should not be the legal standard for determining whether court-cost statutes violate the separation-of-powers provision. See id. The high court based this decision on its conclusion 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.” Id.

The Peraza court concluded that, if 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 does not violate the separation-of-powers provision. Id. The high court did not state that to avoid a violation of the separation-of-powers provision, each court-cost statute (or an interconnected statute) must provide for this type of allocation. See id. at 517–21. Nor did the Peraza court address whether a court-costs statute under which the court recoups costs that are necessary and incidental to the trial of a criminal case nonetheless must provide for this type of allocation to avoid a separation-of-powers violation. See id.

The Peraza court stated that a criminal-justice purpose is one that relates to the administration of our criminal-justice system and that courts must determine whether a purported criminal-justice purpose is legitimate on a statute-by-statute, case-by-case basis. Peraza, 467 S.W.3d at 517–18. The Peraza court held that the appellant had not met the appellant's burden of establishing that it was not possible for the statute at issue in that case to operate constitutionally under any circumstance. Id. at 521.

Two years later, in Salinas v. State, the Court of Criminal Appeals addressed the constitutionality of a statute requiring every convicted felon to pay $133 as a court cost. See 523 S.W.3d 103, 106–10 (Tex. Crim. App. 2017). 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 the statute was facially unconstitutional in violation of the separation-of-powers provision. See id. The Salinas court emphasized twice in broad language that the statute was unconstitutional because the statute “failed to direct the funds to be used in a manner that would make it a court cost (i.e., for something that is a criminal-justice purpose).” See id. at 109–10, nn. 26 & 36. 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 such a purpose. See id. at 107.

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 was silent as to the allocation of the court costs collected. See id. at 106–10. Nonetheless, we conclude that because the Salinas court used broad language and did not mention any exception for such statutes, that the Salinas decision requires us to apply the legal standard in that case to all facial challenges based on the separation-of-powers provision to court-cost statutes. See id. at 106–10, nn. 26 & 36; Allen v. State, No. 01-16-00768-CR, 2017 WL 5712602, at *5–10 (Tex. App.—Houston [1st Dist.] Nov. 28, 2017, no pet. h.) (applying Salinas legal standard to court-cost statute silent as to the allocation of the funds collected and involving recoupment of costs necessary and incidental to the trial of a criminal case); 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 adhere to its interpretation”). Thus, to avoid facial unconstitutionality under this provision, each statute (or an interconnected statute) must direct that the funds collected be expended for something that is a legitimate criminal-justice purpose. See Salinas, 523 S.W.3d at 106–10, nn. 26 & 36. This standard applies to article 102.004(a), even though that statute appears to involve recoupment of costs incurred by the county that are necessary and incidental to the trial of a criminal case, and even though the statute is silent as to the allocation of the court costs collected.

The Language of Article 102.004

Article 102.004 provides:

(a) A defendant convicted by a jury in a trial before a justice or municipal court shall pay a jury fee of $3. A defendant in a justice or municipal court who requests a trial by jury and who withdraws the request not earlier than 24 hours before the time of trial shall pay a jury fee of $3, if the defendant is convicted of the offense or final disposition of the defendant's case is deferred. A defendant convicted by a jury in a county court, a county court at law, or a district court shall pay a jury fee of $40.

(b) If two or more defendants are tried jointly in a justice or municipal court, only one jury fee of $3 may be imposed under this article. If the defendants sever and are tried separately, each defendant convicted shall pay a jury fee.

(c) In this article, “conviction” has the meaning assigned by Section 133.101, Local Government Code.

Tex. Code Crim. Proc. Ann. art. 102.004 (West, Westlaw through 2017 1st C.S.). Article 102.004 does not allocate the jury fee to any specific fund. See id.

Appellant and the State agree that the funds collected under this statute are deposited into the general fund of the county, and we presume that this is so. The State asserts that the jury fee does not offend the Texas Constitution because the collected funds are deposited into the general fund of the county and can be used for legitimate criminal-justice purposes. That funds can be used for a legitimate criminal-justice purpose does not satisfy the Salinas legal standard, under which we must determine what constitutes a legitimate criminal-justice purpose based on what article 102.004 says about the intended use of the funds, not on the actual use of the funds. In Salinas, the Court of Criminal Appeals 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 provision. See Salinas, 523 S.W.3d at 107–08. In rejecting the argument that the account assists individuals 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. See id. at 108. Under Salinas, to pass muster under the separation-of-powers provision, article 102.004 or an interconnected statute must direct that the funds collected be expended for something that is a legitimate criminal-justice purpose. See id. at 106–10, nn. 26 & 36. Like Local Government Code section 133.102, which the Court of Criminal Appeals found unconstitutional, article 102.004(a) fails to limit the use of the funds collected to serving a criminal-justice purpose. Compare Local Govt. Code Ann. § 133.102 (West, Westlaw through 2017 1st C.S.) with Tex. Code Crim. Proc. Ann. art. 102.004. Indeed, article 102.004 does not say anything about how the funds collected should be expended. See Tex. Code Crim. Proc. Ann. art. 102.004. Under the Salinas legal standard, article 102.004(a) on its face violates the separation-of-powers provision because the statute does not direct that the funds collected be expended for something that is a legitimate criminal-justice purpose. See Salinas, 523 S.W.3d at 106–10, nn. 26 & 36.

The State cites Davis v. State in support of its position that the jury-fee statute is constitutional. In Davis, the First Court of Appeals held that Texas Code of Criminal Procedure article 102.005, which authorizes courts to collect a $40 clerk's fee, was not facially unconstitutional under the separation-of-powers provision. See Davis v. State, 519 S.W.3d 251, 257 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd). Davis is factually distinguishable because the appellant in Davis “acknowledge[d] that the statutory purposes for the fee are constitutional.” Id. In addition, the Davis court applied the Peraza legal standard rather than the Salinas legal standard that we apply today. See id.

Under Salinas, article 102.004(a)'s failure to direct the funds collected to be used for something that is a legitimate criminal-justice purpose makes the statute facially unconstitutional, in violation of article II, section I of the Texas Constitution. See Salinas, 523 S.W.3d at 107–10. Accordingly, we sustain appellant's second issue.1

Retroactivity Analysis

Having concluded that article 102.004(a) is unconstitutional, we address the retroactivity implications of our holding. Retroactivity principles are implicated if the holding of a court announces a “new” rule. Salinas, 523 S.W.3d at 111. The Salinas court concluded that declaring a statute unconstitutional on its face is a “new” rule sufficient to invoke a retroactivity analysis. Id. The Court of Criminal Appeals has concluded that an unconstitutional statute is “void from its inception” and that “when a statute is adjudged to be unconstitutional, it is as if it had never been.” Smith v. State, 463 S.W.3d 890, 895 (Tex. Crim. App. 2015). But, the Salinas court did not mention this line of cases in its retroactivity analysis. The Salinas court held that when a court announces a new state constitutional rule that does not involve a personal right of the defendant, the factors in Stovall v. Denno govern the retroactivity analysis. Salinas, 523 S.W.3d at 112 (citing Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)). The rule we announce today invalidating article 102.004(a) is a new state constitutional rule that does not involve a personal right of the defendant, so we analyze the retroactivity of our decision under the Stovall factors: (1) the purpose to be served by the new standards, (2) the extent of reliance by law-enforcement authorities on the old standards, and (3) the effect a retroactive application of the new standards would have on the administration of justice. Salinas, 523 S.W.3d at 112.

In analyzing the Stovall factors, the Court of Criminal Appeals concluded that the purpose to be served by the new standards invalidating the court-cost statute weighed in favor of applying the holding prospectively. See id. The Salinas court noted that court costs do not relate to the truth-finding function of a criminal trial. Id. Court costs impose a financial burden, but in Salinas the high court noted that there was nothing “inherently inappropriate about making a defendant pay a fee as a result of being convicted or otherwise suffering an adverse outcome in criminal proceedings.” Id. Similarly, the Court of Criminal Appeals recognized the State's heavy reliance on the revenue stream from court costs and concluded that the reliance factor weighed in favor of applying the rule prospectively. Id. The high court also found that imposing its separation-of-powers holding retroactively could create large administrative burdens on court clerks throughout the state, so the third factor weighed in favor of applying the rule prospectively. Id. Though the Salinas court applied its constitutional ruling prospectively to trials ending after the date its mandate issued, the Salinas court recognized the need to reward parties who persuade a court to overturn an unconstitutional statute, and so the court applied its holding to the appellant in Salinas and all other defendants who had raised the appropriate claim in a petition for discretionary review before the date of the opinion, if the claim otherwise was properly before the court on discretionary review. Id. at 112–13.

The purpose and effect of today's ruling is no different than the purpose and effect of the ruling in Salinas. See id. at 112. We conclude that we are bound to apply the Salinas court's legal standard and analysis in determining the degree to which the constitutional ruling in today's case should be applied retroactively. See id. at 111–13; Cervantes-Guervara, 523 S.W.3d at 832 (holding that when the Court of Criminal Appeals “has deliberately and unequivocally interpreted the law in a criminal matter, we must adhere to its interpretation”). So, following the high court's lead in Salinas, we conclude that the constitutional holding in today's case should be applied to (1) this appeal, (2) any defendant who has raised the appropriate claim in an appeal in this court before the date of this opinion, if that appeal is still pending on the date of this opinion and if the claim otherwise would be properly before this court on appeal, and (3) appeals in this court in which the trial ended after the date the mandate in today's case issues. See id. at 111–13. Accordingly, we modify the trial court's judgment to delete the $40 jury fee. See id. at 112 (modifying judgment to delete unconstitutional cost).

Conclusion

The trial court had jurisdiction over appellant's case. Under Salinas, article 102.004(a), which imposes a $40 jury fee, on its face violates article II, section I of the Texas Constitution. Thus, we modify the judgment to delete the unconstitutional fee, and we affirm the trial court's judgment as modified.

FOOTNOTES

1.   Because we sustain appellant's second issue, we need not address appellant's third issue.

Kem Thompson Frost, Chief Justice

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