Salinas, Orlando, 2015 Tex. Crim. App. LEXIS 752

Orlando Salinas was convicted by a Harris County jury of injury to an elderly individual and sentenced to five years; the trial court assessed a consolidated court cost under Tex. Loc. Gov’t Code § 133.102.
Salinas argued the consolidated court cost is an unconstitutional tax; trial court overruled his objection.
The Fourteenth Court of Appeals affirmed Salinas’s conviction, rejecting his facial challenge to § 133.102 on two grounds: (1) Salinas failed to show the statute is invalid in all applications because he did not establish what the listed funds actually do, and (2) Salinas did not address severability.
Salinas petitioned for discretionary review solely on the constitutionality issue; this Court granted review and also on its own motion raised whether the court of appeals applied the correct standards for facial challenges.
The Court of Criminal Appeals declined to decide the statute’s constitutionality itself, but held the court of appeals applied an incorrect standard by (a) requiring evidence of how the funds actually operate and (b) treating severability analysis as part of the challenger’s burden.
The case was reversed and remanded to the court of appeals to decide facial validity of § 133.102 based solely on the statute’s text, without regard to severability or extrinsic evidence of fund use.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 133.102 is facially unconstitutional as a tax	Salinas: statute is a tax primarily funding non‑court programs and thus unconstitutional on its face	State: statute is constitutional; court of appeals correctly found it constitutional and reasonably considered severability	Court: remanded — court of appeals applied incorrect standard; facial challenge must be decided from statute alone without requiring severability analysis or evidence of actual fund use
Whether challenger must show what the funds actually do in a facial challenge	Salinas: not required; facial review looks only to statutory text	State/court of appeals: required proof of funds’ actual use to show unconstitutionality	Court: challenger need not prove how funds are used; evidence of practice is irrelevant to facial challenge
Whether severability must be addressed by challenger to succeed on facial attack	Salinas: severability is irrelevant until a provision is found invalid	State/court of appeals: relied on lack of severability analysis as a basis to reject facial claim	Court: severability is not part of the burden to show facial invalidity; it is considered only after finding unconstitutionality
Proper standard of review for facial constitutional challenge	Salinas: de novo review of statute as written	State: (implicitly) factual inquiry appropriate	Court: de novo review of facial challenges; consider statute as written, not its operation in practice

Ex parte Carson, 159 S.W.2d 126 (Tex. Crim. App. 1942) (court cost found not incidental to trial and thus illegitimate)
State ex rel. Lykos v. Fine, 330 S.W.3d 904 (Tex. Crim. App. 2011) (courts consider statutory text, not practical operation, in facial challenges)
Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) (facial constitutionality is a question of law reviewed de novo)
State v. Rosseau, 396 S.W.3d 550 (Tex. Crim. App. 2013) (to prevail on facial challenge, party must show statute is invalid in all applications)
FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000) (facial review focuses on statute as written)
Santikos v. State, 836 S.W.2d 631 (Tex. Crim. App. 1992) (standards for facial challenges cited)
Briggs v. State, 789 S.W.2d 918 (Tex. Crim. App. 1990) (facial challenge principles)
United States v. Salerno, 481 U.S. 739 (U.S. 1987) (Supreme Court recognition that facial challenges are difficult and standards for them)
Karanev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009) (facial attacks must not rely on evidentiary proof of practical operation)
Ex parte Salfen, 618 S.W.2d 766 (Tex. Crim. App. 1981) (constitutional questions avoided unless necessary)