*1 Hospi- elements of the to these substantive SALINAS, Appellant Orlando claims, the trial court had
tals’ mandamus of the the merits to address jurisdiction has not done so. simply but issue Texas, Appellee. The STATE Hospi- the is that disposition of our effect issue, goes to the merits of which tals’ first No. 14-12-00378-CR. of the constructions parties’ competing Texas, Appeals Court of play, at is subsumed regulations relevant (14th Dist.). Houston of the mandamus disposition within our is, nature and precise That issue. March duty or duties THHSC bounds of under the relevant Hospitals to the owed regulations
statutes —whether themselves entitled to
Hospitals may show yet relief—has to be deter-
mandamus Hospitals’ by the trial court. The
mined are within the trial
mandamus claims re- jurisdiction and are therefore
court’s the trial court for its consider-
manded to disposition.
ation and
Conclusion jurisdic- the trial court lacked
Because relating to Hospitals’
tion over the claims review, judicial deprivations,
constitutional relief, declaratory prop- the trial court
erly plea the THHSC’s to the granted To the extent the trial court
jurisdiction. jurisdiction
concluded that it lacked over mandamus re- Hospitals’ requests for
lief, it erred.
Accordingly, portion we reverse the granting the
the trial court’s order jurisdiction only as it plea
THHSC’s Hospitals’ claims for manda-
relates to the portion relief and remand that
mus pro- trial court for further
cause to the affirm the trial court’s or-
ceedings. We Tex.R.App. respects. in all other See
der (d). 43.2(a),
P.
The altercation occurred at the com- house, plainant’s appellant where stay- ing. Appellant the complainant ar- gued; witnesses, according to shoved the complainant to the floor and got on top of him. also shoved the complainant against a wall. After the confrontation, physical the complainant Wood, Houston, Ap- Jani J. Maselli for was bleeding from a wound on his arm. pellant. Several witnesses said the wound looked like a bite mark. The complainant’s other Houston, Bridget Holloway, Appel- for son, Salinas, Jr., Salvador arrived at the lee.
home during dispute and called 9-1-1. *4 BOYCE, Panel consists of Justices Houston Police Officer Christopher Cas- JAMISON, and BUSBY. tellani testified that he arrived on the Salinas, scene about six minutes after Jr. SUBSTITUTE MAJORITY OPINION called 9-1-1. Castellani described the complainant shocked,” being “visibly as BOYCE, WILLIAM J. Justice. “dazed,” “very upset,” “very sad.” Appellant Orlando Salinas’s motion for Castellani observed that the complainant overruled; rehearing is opin- was bleeding from lacerations on his arm withdrawn; ion of December 2013 is and called for EMS to treat the wound. the following majority opinion substitute is Castellani complainant testified that the place. issued its initially did not want to speak about what appeals Orlando Salinas from his convic- happened. As the conversation progress- injury tion for elderly person. to an A ed, the complainant explained that he had jury guilty found him and the trial court argued appellant with and received the him years sentenced to five in prison. Ap- wounds on arm appellant his when himbit pellant contends that the trial court erred Castellani, According twice. the com- (1) by permitting expert testimony on vic- plainant appellant stated that hit him. Of- (2) recantation; tim admitting hearsay tes- Palla, ficer who Chris also arrived on scene timony under the excited utterance excep- call, soon after the 9-1-1 testified that the tion; and assessing an unconstitutional complainant claimed had court cost him. See Tex. Loc. “jumped on him.” The trial court overruled (Vernon 133.102(a)(1) § Gov’t Code Supp. hearsay objections to both officers’ testi- 2013). reject appellant’s We contentions mony. and affirm the judgment. trial court’s trial, complainant
At testified appellant did not hit or him during bite Background argument. The complainant telling denied charged was with assaulting Officer Castellani that appellant had as- father, 80-year his old Salvador Salinas. saulted him. Several witnesses at trial described the assault, including complainant’s grandson, The State thereafter an employee called III, grand- Salvador Salinas and two of the County Attorney’s of the Harris District friends, Office, Hutchinson, son’s Kapriva Omar Morales and Sean Johnson anas Finch. expert family regarding violence. Hutch- Family testimony Her before the
inson, qualifications. in the a caseworker Criminal Division, brief; relatively that she both a jury Law testified had it consisted al- degree qualifi- in social entirely and a master’s most statement of her bachelor’s cations, opinion and had attended numerous “confer- work and her that domestic ences, trainings and seminars where do- or mini- frequently abuse victims recant topic.” She [main] violence was the mestic mize not their accusations. She did offer relating to mini- attended seminars has opinion specifically an the com- regarding mization and recantation domestic testimony or facts plainant’s any other reviewed literature on abuse victims and this case. detailed her ex- topics.
those
Hutchinson
We review the admission of ex
with domestic violence
perience working
pert testimony under an abuse of discre
familiarity
her
with their ten-
victims and
State,
tion
standard. Coble
330 S.W.3d
allega-
to minimize or recant abuse
dency
(Tex.Crim.App.2010).
A court
to this testimo-
Appellant objected
tions.
if
abuses its discretion
it acts without ref
grounds
and on
ny
grounds,
on relevance
any guiding
principles.
erence to
rules and
necessary qual-
that Hutchinson lacked
Montgomery v.
trial
testify.
ifications to
court over-
(Tex.Crim.App.1990). The trial court
is
permitted
these
objections
ruled
right
given
wrong”
long
a “limited
to be
that it was
opine
Hutchinson
common
arbitrary
capri
as it
not act in an
does
for domestic abuse victims
recant or
*5
cious manner.
Id. We will not reverse
allegations.
minimize
unless we determine that the trial court’s
the
find
charge permitted
jury
The
to
ruling
wrong as
was so
to fall outside the
guilty
causing
an
appellant
injury
of
to
might
zone
people
within which reasonable
elderly person
appellant
if it determined
State,
disagree. Tillman v.
complainant
the
or struck him with a
bit
425,
(Tex.Crim.App.2011).
435
jury
After
found appellant
hand.
the
trial
guilty, the
court sentenced him to five
Rule of
702
Texas
Evidence
al
in
years
prison.
knowledge,
qualified by
lows a witness
The trial court assessed court costs
skill, experience, training, or education to
the
against appellant.
In
certified bill of
scientific, technical,
testify
spe
on
or other
costs,
appellant
assessed
subjects
testimony
if
cialized
the
would
a
court cost.” Appellant
“consolidated
fact
understanding
assist the trier of
in
or
to
court
complained
regarding
the trial
a fact
determining
issue. Before admit
trial,
in
new
these costs
a motion for
mo-
702,
ting
testimony
Rule
expert
under
in arrest
and
judgment,
hearing
tion
of
a
(1)
trial
be
court must
satisfied that
motions.
trial court
on the
overruled
as an
reason
qualifies
expert by
witness
objections.
these
skill,
knowledge,
her
experience, training,
education;
matter is
subject
an
Analysis
expert testimony;
one for
appropriate
and
Expert Testimony
I.
(3) admitting
expert testimony
will ac
tually
deciding
in
assist
factfinder
that the
Appellant contends
trial court
State,
case. Davis v.
329
813
testify
Hutchinson
S.W.3d
permitting
erred
—
denied,
(Tex.Crim.App.2010), cert.
U.S.
was not
expert
as an
because she
shown to
(2011).
-,
testimony
132 S.Ct.
323 State, (citing relevance. Id. Appellant Vela additionally complains that 128, 131 (Tex.Crim.App.2006)). S.W.3d Hutchinson “could not any remember requirement questions Each raises distinct classes or seminars or even books she had issues, objection subject.” and an on one read about the based This appears to misreading be a requirement preserve does not error as to the record. Hutchin- son another. Shaw v. testified that she has S.W.3d attended semi- 655-56 nars and reviewed (Tex.App.-Houston research articles [14th Dist.] on re- 'd). cantation; ref pet. she was not asked any to name classes,
specific seminars, or books. first challenges Hutchin Appellant makes no specific argu qualifications only son’s because she had ments on appeal challenging the relevance “one frame of reference” and “one type of testimony. Hutchinson’s Hutchinson training and belief’ after working for testified that it is common for domestic years attorney’s the district Ap office. abuse victims to recant or allega minimize pellant authority suggesting cites no that a tions of abuse. Other evidence suggested witness must work with more than one complainant that the in this case had made employer qualify as an expert. any allegations against appellant, complain but event, Hutchinson stated that she has ant denied at trial that had as home, internships worked in in a group saulted him. The trial court did not err hospital, facility. and another health care determining that Hutchinson’s testimony degrees She testified that she has two was relevant to understanding why the social work and has attended numerous complainant may changed have his account “conferences, trainings seminars incident-,that appellant’s pros led to where domestic violence was the [main] Duckett, ecution. See at 920 topic,” along relating with seminars (social testimony worker’s regarding rea minimization and recantation by domestic sons for sexual changed abuse victim’s tes abuse victims. She also lit has reviewed *6 relevant); State, timony was Fielder v. 756 erature on topics. these 309, S.W.2d 319 (Tex.Crim.App.1988) (psy The record gives no indication that chologist’s testimony regarding reasons for education, Hutchinson’s training, expe- and remaining in an abusive marriage was rel rience were too limited or “one-sided” to evant); State, 360, Scugoza v. 949 S.W.2d prevent her qualifying expert. from as an 1997, (Tex.App.-San 363 pet.) Antonio no Hutchinson detailed her experience work- (testimony on recantation program from ing with victims of domestic violence and director of battered women’s shelter was dealing tendency with their to minimize or relevant). recant allegations of abuse. On this rec- ord, the trial court acted within its discre- Hearsay II. Statements in determining tion that Hutchinson was qualified testify as an expert. Appellant See contends that the trial State, 906, 917, Duckett v. 797 S.W.2d 920 court erred in permitting Castellani to tes (social (Tex.Crim.App.1990) worker tify regarding complainant’s was state qualified testify an expert regarding as made shortly alleged ments after the as why victim of sexual abuse her changed sault occurred. raised several testimony confused), appeared and disap- hearsay objections testimony; to this it proved grounds by State, on other appears Cohn v. the trial court overruled 817, 849 S.W.2d 819 (Tex.Crim.App.1993). objections these under the excited utter- 324 801, 802, arguably weigh these factors Evid. While Tex.R. exception. See
anee admission, other circumstances 803(2). and excited utter- of the support application exception in this case. ruling ance a trial court’s review We of evidence or exclusion on the admission he arrived on testified that Castellani Tillman, 354 for an abuse of discretion. of the 9-1-1 within six minutes the scene its A trial court abuses at 435. S.W.3d call; how much although it is not clear “lies outside only if its decision discretion spoke elapsed time before Castellani disagreement.” the zone of reasonable reasonably the trial court complainant, 727, State, 736 327 S.W.3d Martinez v. significant have concluded that no could (Tex.Crim.App.2010). elapsed of time between Castella- amount conversation with com
nas arrival and his
determining whether
a
the com
described
plainant. Castellani
utter
within the excited
statement
falls
shocked,”
being “visibly
plainant
wheth
court must assess
exception,
ance
a
“dazed,” “very
“very
and
sad.”
upset,”
(1)
product
was the
of a
er
statement
complainant
also observed
Castellani
a state of
produced
event that
startling
lacerations on his arm.
bleeding
was
from
(2)
excitement;
declarant was
nervous
within
put
factors
this case well
These
event;
of the
by the excitement
dominated
justifying ap
circumstances
range
related to the cir
the statement
excep
the excited utterance
plication of
event.
startling
State,
Jack
See,
cumstances
v.
221
e.g.,
tion.
Vinson
(Tex.
626,
State,
256,
110 S.W.3d
son
(Tex.App.-Houston
260-61
'd).
2003,
2006)
pet. ref
App.-Houston
Dist.]
be
(exception applied
[14th
Dist.]
[1st
may
other factors
visibly
The court also
consider
was
shaken
complainant
cause
elapsed
attack),
time
as the amount of
on other
injured
such
after
rev’d
to a
response
(Tex.Crim.App.
grounds,
whether the statement
der the separation powers of of Appellant clause the raised in this contention Texas trial, Constitution: trial court a motion for new
326
judgment).
amount in the
at a
costs of a certain
judgment,
in arrest of
motion
abstract,
or
hypothetical
not an
This is
But the trial
hearing on these motions.
contingent issue.
in arrest
rule on the motion
court did not
clear that either
nor is it
judgment;
of
a
addressing
constitutional
for mak
appropriate
is an
vehicle
motion
begin with the
challenge, this court “must
See
regarding court costs.
ing complaint
a
the statute is valid and
presumption
252,
State,
254-55
v.
402 S.W.3d
Landers
arbitrarily
did not act
Legislature
that the
(reserving question of
(Tex.Crim.App.2013)
it.” State v.
unreasonably
enacting
appro
trial is an
a motion for new
whether
(Tex.Crim.
Rosseau,
550, 557
396 S.W.3d
State,
vehicle);
v.
Crittendon
priate
party challenging
The
App.2013).
632,
(Tex.App.-Houston [1st
S.W.2d
its
“has the burden to establish
statute
(“A
1995,
pet.)
motion
arrest
no
Dist.]
unconstitutionality.”
prevail
Id.
on a
“[T]o
essentially
post-trial
a
mo
judgment is
of
challenge,
party
facial
a
must establish
indictment.”);
also
quash
see
tion
always operates unconsti
that the statute
P.J.,
Landers,
(Keller,
It is useful in to court-appointed attorneys represent remedy precise appellant focus on the trial indigent defendants in the of criminal seeks from is not this court. “is trial of a crimi- necessary cases to the seeking prevent the distribution of court nal case.” that he particular costs to funds deems to court-related, insufficiently and to di- solely if argu- Even it is assumed for rect those to funds that he sums instead ment’s sake that some of the fund at least Rather, unobjectionable. finds recipients subsection identified asks this court to foreclose collection of 133.102(e) invalid, appellant are identifies 133.102(a)(l)’s section court cost in its $133 133.102(a)(l)’s why no reason section entirety even at some of the though least court cost cannot be collected and distrib- are, designated by appel- uses this sum for severability princi- uted accordance with admission, permissible. lant’s own appropriate ples admittedly funds Section riot contain a 133.102does sever- 133.102(e)(12) specified subsections circumstance, ability provision. In this (14). involving a single This circumstance provides Code Construction Act as follows: purposes amount used for distin- multiple any the statute or provision “[I]f its Carson, this case from guishes application any or circumstance person a single which involved amount at invalid, invalidity is held does not af- designated impermissible pur- single for a applications fect other provisions or pose. given statute that can be effect without the in sec specified percentages
invalid provision application, and to this 133.102(e) only minimum or floor provisions end the of the statute are sever- tion set *10 328 partic to must be distributed
amount that
Conclusion
Therefore,
writ
the statute as
ular funds.1
and af-
appellant’s issues
We overrule
larger
distribution of
can accommodate
ten
judgment.
firm the trial court’s
permissi
number of
to a smaller
amounts
JAMISON, J., concurring and
recipients are
if other
recipients
ble
dissenting.
Tex.
See
impermissible.
to be
deemed
311.032(c);
§
see also
Ann.
Gov’t Code
Justice,
JAMISON,
HILL
MARTHA
Allred,
4,
Cnty. v.
Shelby
Road Dist. No.
dissenting.
concurring and
(Tex.Com.
164,
77,
171
S.W.2d
123 Tex.
68
as to the
majority
with the
I concur
(provision of
App.1934) (orig. proceeding)
issues.
first two
appellant’s
of
resolution
state funds
donated
impermissibly
statute
133.102(a)(1)
However, I would find section
gratuity” to road
amounting to a “mere
Code to
of the Texas Local Government
district;
desig
invalidity
provision’s
this
of
I
Specifically,
face.
on its
unconstitutional
invalidate stat
of funds did not
nated use
funds men-
that none of the
would find
allowing distribution
provisions
ute’s other
test,
meet the
tioned in the statute
Carson
because
permissible purposes
funds for
concession
despite appellant’s attempted
unconstitutionality of section 12 does
“the
cannot be
and the court costs
appeal,
on
holds
act void.
It
is a
Because the
not render the entire
reallocated.
stricken.”);
otherwise,
respectfully
I
dissent.
section 12
workable act with
257,
Mehlman, 127
75
Ex Parte
Tex.Crim.
Court Cost
Consolidated
(“If
(Tex.Crim.App.1934)
S.W.2d
assessments
In addition to the numerous
relating
appro
part
that
of the act
a convict-
the actual cost of
associated with
receipts
should be held
priation of
trial; see,
person’s
e.g.,
ed
Texas Code
any intention of
invalid—and we disclaim
102.001-
Procedure
sections
Criminal
the act would
holding
remainder of
so
—the
sec-
and Texas Government Code
102.022
affected.”).
not be
has,
102.021;
Legislature
the Texas
tion
are
admittedly
valid uses
Because
133.102(e),
a “sin tax”—a
section
assessed
foreclosed
other
severable and are not
by all convicted
paid
standard fee to be
assertedly
uses to which the chal-
invalid
fee,
denominated as
criminals. This
has not
lenged
put, appellant
court cost is
cost,”
any
applies regardless
“court
133.102(a)(l)’s
section
established
in the trial. The
actually expended
costs
always
unconsti-
operates
court cost
the consolidated cost to be
requires
statute
or that
it must be
tutionally
pro-
as a tax
according
percentages
allocated
to
Tex. Loc. Gov’t Code
entirety
in its
from the trial court’s vided in the statute.
deleted
133.102(c).1
§
contends that the
judgment.
(e)'s
pre
lenge
longstanding
fails under the
that subsection
still
1. The dissent contends
susceptible multiple
language
only
cept
con
applies
that statutes
“not ...
less than”
interpreted
as to render
structions will be
so
collected in connection with offenses
fees
See,
e.g., Newsom v.
January
Nothing
them constitutional.
2004.
committed before
(e)
(Tex.Crim.App.
expressly makes this lan
in subsection
1963).
keeping
precept,
it is
only
In
with this
guage applicable
pre-2004
offenses.
(e)'s "not ...
reading
plausi
appropriate to read subsection
Assuming the
to be a
dissent's
is,
apply
language to
to fees collected
reading
as the
less than”
ble
of a subsection
observes,
on or
statutory
connection with offenses committed
"not a model of
dissent
January
clarity,”
appellant’s
chai-
after
2004.
constitutional
required
recipient funds and their
relevant to this case listed the
1. The version of the statute
percentages
allocation
as follows:
discussing
trial court’s
of a “consolidated S.W.2d at
its reason
assessment
sepa-
ing,
unfortunately
him
*11
court cost”
violated the
Carson Court
did
clause of
Con-
powers
any particular
ration of
the Texas
not
provision
cite
Const,
II, § Appel-
art.
stitution. Tex.
constitution that it found
to be violated
lant further
resolution of this
library
Court,
the law
contends
assessment. The
governed by
case
the Court of
however,
is
Criminal
called the
a
assessment
“tax”
$1
Carson,
parte
Ex
148
Appeals opinion
that
and noted
there was a
among
conflict
(1942).
498,
I
Tex.Crim.
The fee
the Carson
held
which
Court
(explaining
leg
165 N.W.2d
unconstitutional,
necessary
as
nor
neither
trial,
library
explicit
islature could not circumvent the
incidental
was a
fee
to the
provision
by placing
of the constitution
express
to be
in certain
collected
counties
clearly
label
on items that
not
ly for
and
of law
“costs”
were
the creation
maintenance
court),
with
v.
Broyles
libraries in those counties to be made
costs
(1985) (hold
judges
attorneys.
available for
and
159 Ark.
688 S.W.2d
counseling 0.0088 percent;
abused children’s
stoppers
percent;
crime
assistance
0.2581
percent;
testing
breath alcohol
0.5507
Management
percent;
Bill
Institute
2.1683
Blackwood Law Enforcement
percent;
law enforcement officers standards and education
5.0034
percent;
comprehensive rehabilitation
9.8218
operator’s
percent;
license
11.1426
and chauffeur’s
percent;
justice planning
criminal
12.5537
treasury
only for the
an account in
to be used
the state
Study
operation
establishment and
of the Center for the
and
Delinquency
Prevention of
Crime and
at Prairie
Juvenile
percent;
University
View A & M
1.2090
percent;
compensation
victims of crime fund
37.6338
to
emergency
percent;
radio
account
5.5904
infrastructure
training
percent;
judicial
personnel
4.8362
and court
fund
treasury
an account in
to be
for the Establishment
the state
used
operation
Management
and
Institute of Texas
of the Correctional
percent;
1.2090
Criminal Justice Center Account and
percent.
fair defense
8.0143
account
upon an
noting
ing they
conflict
were all “more or less based
2. While
the existence of a
among
jurisdictions,
in Car-
other
Court
arbitrary conclusion."
at 127.
cite,
specifically
son did
much
dis-
not
less
cuss, any
jurisdictions,
stat-
from other
cases
expenditures
would lead into fields
to a criminal defen
charged
a cost
ing that
may
while intoxicated
well include the cost of
driving
which
dant convicted
houses,
relating to drunken
offi-
programs
the automobiles which
support
court
services, and alcohol
driving,
apprehend
detoxification
use to
criminals
cers
was constitu
drug abuse rehabilitation
If
they
which
ride.
upon
even the roads
agencies
created
go
tional since funds
library
remote as a law
something so
safe from drunk driv
keep
highways
charged
litigant
may
properly
ers);
Young,
238 So.2d
and State
theory
prepares
that it better
on the
(Fla.1970) (holding that a statute
589-90
per-
attorneys
and the
for the
*12
courts
“court cost” for law
imposing a one dollar
duties,
to us
of their
it occurs
formance
every
convicted of
person
enforcement on
tax an item of
might
logically
that we
separa
not a violation of the
a crime was
attorneys
of such
cost for the education
because it is rea
powers
tion of
doctrine
the endowments of
judges
and
and even
that one convicted of a crime
sonable
they attend.
the schools which
improve
to share in the
“should be made
Regardless opinion’s legal of the in trial. More appellant’s costs incurred clearly favored pinnings, the Carson Court none of the fourteen is less importantly, “court permissible a strict definition of case, relationship pro- to the court stating criminal that the remote its costs” view, ceedings funding in this case than was the opposing However, cases, suggest- actual items of By I am not section 102.021 lists citation to these ing jurisdictions (e.g., would or that courts in these in criminal trials a fee for services cost find the consolidated court cost in would not executing pro prosecutor of and fees for I warrant), this case constitutional or unconstitutional. cessing an arrest whereas section merely that there is a cite to indicate them programs attempts to fund less di 133.102 costs, uniformity regarding lack of how such all, related, rectly appellant’s if at trial. are viewed. 5.My analysis in this case should not be con- Appeals recog 4. The Court of Criminal has the relative merits of sidered a reflection on imposed in nized a distinction between fines programs the funded under section 133.102. Chapter Penal Code and court 12 of the Texas Moreover, recognize making I convicted nonpunitive recoupment of costs intended as programs, pay certain rather criminals for judicial expended in resources connection funding through obtaining other means than State, the See Weir v. with the trial of case. attractive, revenue, expedi- may an of seem 364, (Tex.Crim.App. 365-66 278 S.W.3d Nonetheless, ent, option. fair this inter- and Weir, 2009). analysis in as Under the costs appeals of is bound to follow mediate court pursuant clearly are sessed to section 133.102 by precedent the Court of the established nonpunitive in nature. The statute at issue in Const, V, Appeals. Weir, Criminal See Tex. art. Texas Government Code section 696, 5(a); 102.021, here, § 84 S.W.3d Purchase at issue section and the statute 2002, ref'd). 133.102, pet. very (Tex.App.-Houston [1st Dist.] are drafted in similar fashions. item, library by judges for a law to be used including references governing attorneys in Carson.6 statutes where discernable. concedes on appeal that amounts collected holds that failed and distributed to two of the programs presumption
to overcome the
of section
12,
listed in section 133.102—number
re-
constitutionality
133.102’s
because he failed
garding the judicial and court personnel
designated
to establish what the funds
fund,
training
133.102(e)
number
concerning
“actually
beyond
section
do”
contribution
is,
“fair defense
ac-
statutory language,
given
the titles
However,
may
sufficiently
Legislature.
the funds
if
related to the
count” —
meaning
operation
statutory language is
courts as to not violate the
unambiguous,
adopt
interpre
we must
separation
powers
clause. While I
supported by
plain
tation
meaning
agree that these may be the two programs
provision’s
See
words.
Sowell v. Int’l
closely
most
proceed-
related to the court
(Tex.
Interests, LP,
ings
I
why appellant’s
understand
App.-Houston
Aug.
[14th Dist.]
counsel would want
them included in the
*13
filed)
pet
(citing St.
Episcopal
Luke’s
costs,
distribution of
I do
agree
not
that
(Tex.
Hosp. Agbor, 952 S.W.2d
these items
excepted. Regard-
should be
1997)).
I
appellant
would hold that
has
fund,
ing the training
as the excerpt above
met his burden concerning whether
the
illustrates,
the Carson
specifically
Court
fourteen funds meet
the
Carson test
discounted the notion that funds for court
“necessary or incidental.”7
training
legitimate
can be a
cost of court to
brief,
reply
appellant
his
be
provides
charged to a convicted defendant.
(“If
fairly
analysis of
detailed
each funded
at
something
so remote as
suggests
6. The State
that
the
practically guar-
consolidated
onerous burden and one that
go
court costs assessed in this case are
antees the
constitu-
unconstitutional statute will
un-
challenged.
they
appellant’s
tional because
I do
totaled less than the true
not view the
appellant's
great.
burden to be
prosecution.
costs of
so
Even if
support
there were evidence to
the State's
language
The
of section 133.102 itself
position, Carson does not sanction such an
proves
undoing, providing funding
its own
for
discussed,
analysis. As
the Carson court held
counseling (although
abused children's
there
$1
that a
court cost was
be-
unconstitutional
case),
allegation
is no
of such abuse in this
necessary
cause it was "neither
nor incidental
(even
stoppers’
though
crime
assistance
there
to the trial of a criminal case.” 159 S.W.2d
stoppers'
is no indication of crime
involve-
at 127.
case),
(al-
testing
ment in this
breath alcohol
though
any
there was no evidence of
such
Appellant presented
the trial court with a
case),
testing occurring in this
driver's licens-
newspaper
exposing
article
the collection of
(although
driving
es
no issue related to
tens of millions of dollars from convicted
case),
involved
this
establishment of a cen-
programs wholly
criminals for use on
unrelat-
(even
study juvenile
though
ter to
crime
no
ed to their trials or crimes.
Eric
See
Dex-
case),
juvenile was involved in this
and an
heimer, Hard-up
pay as state si-
defendants
emergency
account for
radio infrastructure
uses,
phons court
unrelated
Austin-
(even
fees
though
for
there is no hint in this case that
Statesman,
American
March
2012. The
here).
such was at issue
Most of the remain-
majority
suggest
does not
what else
ing
programs
clearly
funded
are
related to the
apart
discussing
could have done
from
the
training
judicial system
and education of
offi-
language of the statutes themselves and the
employees,
cials and
in direct contravention
published
investigative reporting.
results of
Perhaps
of Carson.
are all
these
laudable
Requiring a defendant
to divine the inner
programs,
they
improperly
but
are
and un-
workings
governmental
of fourteen different
constitutionally
through
funded
section
programs
$133
in order to contest a
fee is an
133.102.
appellant’s
trial of
criminal
charged
penses
to
the
may
properly
library
be
a law
Carson,
tion 133.102 or otherwise porting reallocation funds intended for program one to another program. Kai C. LAM and The Housesold section, fact, contains no provisions for Realty, Inc., Appellees. severability in the event sections are de- No. 14-13-00368-CV. unconstitutional, termined to be and the in injecting inapplicable errs sev- Texas, Court of Appeals of erability rules into the statute. Under (14th Dist.). Houston case, presented circumstances in this March requires statute be gathered and dis- according tributed to specified percent-
ages. Period. Because the statute cannot salvaged by severing constitutionally- programs
funded from properly those not
funded, facially the statute is unconstitu-
tional even if certain of the listed pro-
grams constitutionally could be funded
through against court costs assessed crimi-
nal defendants. stated,
Regardless, as under the Court Carson, Appeals opinion Criminal
none of the fourteen items funded under
Local Government Code section 133.102 necessary
constitute a cost or incidental of a trial criminal case. Id. These legitimate
are therefore not items to be
assessed criminal defendants.
Accordingly, I would appellant’s sustain
first issue and hold that section 133.102 is
unconstitutional and the must be de-
leted from the trial judgment. court’s hold,
Because the did not so I
respectfully dissent. I concur the re- majority’s
mainder of the holdings and
analysis. 1, 2004,
may following per- January not receive less than the mitted before and not those therefore, centages.” date, language, appears This committed on or after that as is the case money to refer appellant's collected on offenses com- with offense.