573 S.W.3d 328
Tex. App.2019Background
- Devlon Johnson pleaded guilty to possession of cocaine (<1g) and was sentenced to 18 months in a state jail; he appealed the assessment of several court costs and an omission in the judgment.
- Challenged costs on facial separation-of-powers grounds: sheriff fee, capias warrant fee, district clerk fee, $4 jury service fee (Art. 102.0045), $2 legal services fee (Tex. Loc. Gov’t Code §133.107) (10% claimed to pay collection), $2 administrative transaction fee (Art. 102.072), and $25 time-payment (late-payment) fee (Tex. Loc. Gov’t Code §133.103).
- Standard: facial challenge requires showing the statute is unconstitutional in all applications; separation-of-powers violation occurs if courts are made tax-collectors or funds are routed to general revenue without criminal-justice purpose.
- Court distinguishes two valid types of court-cost statutes: (1) recoupment of expenses incurred in the prosecution of the particular case; or (2) allocation to be expended for a legitimate criminal-justice purpose (statutory direction controls, not actual use).
- Court held most fee statutes constitutional under one of the two categories, but found parts of the time-payment statute invalid because it routes funds to general revenue without limiting their use to a criminal-justice purpose.
Issues
| Issue | Johnson's Argument | State's Argument | Held |
|---|---|---|---|
| Sheriff & capias-warrant fees (Art. 102.011(a),(b)) | Fees are facially unconstitutional because statutes don’t direct deposit and funds end up in general fund | Fees reimburse peace officers for services in the particular case and thus recoup prosecution expenses | Constitutional — fees are recoupment of case-specific expenses and pass separation-of-powers review |
| District clerk fee (Art. 102.005) | Unconstitutional tax because statute lacks directed segregated use | Fee reimburses clerk for case-related clerical services (recoupment) | Constitutional — fee is recoupment for services in the case |
| Jury service fund fee (Art. 102.0045) | Unconstitutional when not tied to juries in particular case (Johnson noted his case had no jury) | Statute directs fee to a jury service fund to reimburse counties for juror services (legitimate criminal-justice purpose) | Constitutional — statutory allocation is to a jury service fund and serves criminal-justice purposes |
| Legal services fee (Tex. Loc. Gov’t Code §133.107) | Unconstitutional because a portion may be diverted (10% collection fee) to county general fund | Statute directs funds to the fair defense account to fund indigent defense (legitimate criminal-justice purpose) | Constitutional — statute directs fees to fair defense account to support indigent defense |
| Administrative transaction fee (Art. 102.072) | Unconstitutional as undirected general revenue | Fee compensates officers for transactions collecting court fines/fees (recoupment) | Constitutional — tied to collection transactions attendant to conviction (recoupment) |
| Time-payment (late-payment) fee (Tex. Loc. Gov’t Code §133.103) — allocation to general revenue (b) & (d) | Unconstitutional because 90% (and portion to state GR) are deposited to general revenue without limitation, making courts into tax collectors | Statute imposes a late fee; some portion (10%) must be used for improving administration of justice | Partially unconstitutional — sections 133.103(b) and (d) facially unconstitutional because funds go to general revenue without criminal-justice limitation; 133.103(c) (10%) upheld; judgment modified to reduce fee amount accordingly |
| Omission of finding re: diligent participation credit (Art. 42.0199 / 42A.559) | Judgment omitted required finding whether defendant is presumptively eligible for diligent participation credit | State did not contest, but appellant was released before opinion | Moot — appellate court did not reach merits because appellant was released |
Key Cases Cited
- Ex parte Lo v. State, 424 S.W.3d 10 (Tex. Crim. App. 2013) (de novo review of statute constitutionality and separation-of-powers principles)
- Peraza v. State, 467 S.W.3d 508 (Tex. Crim. App. 2015) (facial challenge standard for court costs; valid statutory allocations to criminal-justice purposes can save statutes)
- Salinas v. State, 523 S.W.3d 103 (Tex. Crim. App. 2017) (statutory routing of collected fees to general revenue without criminal-justice limitation renders fee facially unconstitutional)
- Weir v. State, 278 S.W.3d 364 (Tex. Crim. App. 2009) (court costs as recoupment of judicial-resource expenditures)
- Armstrong v. State, 340 S.W.3d 759 (Tex. Crim. App. 2011) (characterizing court costs as compensatory/recoupment rather than punitive)
- Casas v. State, 524 S.W.3d 921 (Tex. App.—Fort Worth 2017) (invalidating fee that lacked statutory direction to criminal-justice use)