Orlando SALINAS, Appellant v. The STATE of Texas
NO. PD-0170-16
Court of Criminal Appeals of Texas.
Delivered: March 8, 2017
103
Bridget Holloway, Assistant District Attorney, Houston, TX, Stacey Soule, Austin, TX, for The State.
When a defendant is convicted in a criminal case, various statutes require the payment of fees as court costs. One of these statutes assesses a consolidated fee: the defendant pays a single fee, but the money from that fee is divided up among a variety of different state government accounts according to percentages dictated by the statute. Appellant challenges the assessment of the consolidated fee with respect to two of the listed accounts: an account for “abused children‘s counseling” and an account for “comprehensive rehabilitation.” Appellant claims that the unconstitutionality of these two statutory provisions renders the entire consolidated fee statute unconstitutional. We conclude that, with respect to the collection and allocation of funds for these two accounts, the statute is facially unconstitutional in violation of separation of powers. We also hold, however, that the invalidity of these two statutory provisions does not render the statute as a whole unconstitutional. As a result, we hold that any fee assessed pursuant to the consolidated fee statute must be reduced pro rata to eliminate the percentage of the fee associated with these two accounts. We reverse the judgment of the court of appeals and render judgment modifying the court costs in appellant‘s case.
I. BACKGROUND
Appellant was convicted of injury to an elderly individual, a felony,1 and sentenced to five years in prison. In a certified bill of costs, $133 was assessed pursuant to the consolidated fee statute,
On appeal, appellant raised a facial constitutional challenge to the assessment of the consolidated fee on the basis that twelve of the fourteen accounts listed in
The court of appeals held that interconnected statutes direct the comptroller to allocate proceeds collected for the comprehensive rehabilitation account to uses that relate to the administration of our criminal justice system and are thus legitimate criminal justice purposes.7 With respect to the abused children‘s counseling account, the court of appeals held that, although no current statute mandates how the proceeds of that account are to be spent, “abused children‘s counseling” on its face relates to the administration of our criminal justice system by providing resources for victimized children.8 Concluding that appellant failed to establish that the consolidated fee statute was facially unconstitutional, the court of appeals affirmed the trial court‘s judgment.9
II. ANALYSIS
A. Facial Challenges, Separation of Powers, and Court Costs
Appellant claims that
Appellant‘s facial constitutional challenge is grounded on separation of powers. In the Texas Constitution, separation of powers between the branches of government is expressly guaranteed:
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.12
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
B. The Consolidated Fee Statute
We set forth the portions of the consolidated fee statute that are relevant to our analysis of appellant‘s facial constitutional challenge:
(a) A person convicted of an offense shall pay as a court cost, in addition to all other costs:
(1) $133 on conviction of a felony;
(2) $83 on conviction of a Class A or Class B misdemeanor; or
(3) $40 on conviction of a nonjailable misdemeanor offense, including a criminal violation of a municipal ordinance, other than a conviction of an offense relating to a pedestrian or the parking of a motor vehicle.
* * *
(b) The court costs under Subsection (a) shall be collected and remitted to the comptroller in the manner provided by Subchapter B.
* * *
(e) The comptroller shall allocate the court costs received under this section to the following accounts and funds so that each receives to the extent practicable, utilizing historical data as applicable, the same amount of money the account or fund would have received if the court costs for the accounts and funds had been collected and reported separately, except that the account or fund may not receive less than the following percentages:
(1) abused children‘s counseling . . . 0.0088 percent;
* * *
(6) comprehensive rehabilitation . . . 9.8218 percent;17
[Editor‘s Note: The preceding image contains the reference for footnote 17].
The question here is whether the two accounts at issue (“abused children‘s counseling” and “comprehensive rehabilitation“) meet the requirement that the relevant statutes provide for an allocation of funds “to be expended for legitimate criminal justice purposes.”
C. “Comprehensive Rehabilitation” Account
The “Comprehensive Rehabilitation” account is a general revenue fund dedicated
The State contends that, under
D. “Abused Children‘s Counseling” Account
Before 1995,
The result of these legislative actions is that, although the “abused children‘s counseling” account originally funded a program for abused children‘s counseling, the program to which the funds are directed no longer exists and the funds revert to the General Revenue Fund. We cannot uphold the constitutionality of funding this account through court costs on the basis of its name or its former use when all the funds in the account go to general revenue. Consequently, the allocation of funds to the “abused children‘s counseling” account does not currently qualify as an allocation of funds “to be expended for legitimate criminal justice purposes.” To the extent that
E. Severability
Appellant claims that there is no savings or severability clause in
Subsection (e) of the statute instructs the Comptroller to allocate from the consolidated fee to the accounts “the same amount of money the account or fund would have received if the court costs for the accounts and funds had been col-
The combined percentage attributable to the “abused children‘s counseling” and “comprehensive rehabilitation” accounts under the statute is 9.8306 percent. That percentage of the $133 fee in appellant‘s case is $13.07. Subtracting that amount from the $133 fee yields a fee of $119.93.
F. Retroactivity
We have sometimes found it appropriate to address the retroactivity implications of a holding at the time of the holding.40 Retroactivity principles are implicated if the holding of a court announces a “new” rule.41 When the issue is one of statutory interpretation, a rule is new only when it is a “clear break” with the past.42 But because a statute is presumed to be constitutional until it is determined otherwise,43 we conclude that declaring a statute unconstitutional on its face is a “new” rule sufficient to invoke a retroactivity analysis.
We have recognized four types of retroactivity approaches: (1) pure prospectivity—applying the new rule to those cases tried after the effective date of the opinion announcing the new rule; (2) limited prospectivity—applying the new rule in situation (1) and to the parties in the case in which the new rule is announced; (3) limited retrospectivity—applying the new rule in situations (1) and (2) and to all cases then pending on direct review or not yet final; and (4) pure retrospectivity—applying the new rule to cases in situations (1), (2), and (3) and to cases pending on collateral review.44 This is not, however, an exhaustive list of approaches to retroactivity.
Griffith v. Kentucky articulated the retroactivity rule for federal constitutional errors in criminal cases, and it is one of limited retrospectivity: a newly announced federal constitutional rule for conducting criminal prosecutions must be retroactively applied to all cases pending on direct review or not yet final when the rule was announced.45 The Griffith retroactivity rule is binding upon the states when federal constitutional errors are involved but does not bind the states on matters of state law.46 Because our current holding is based on the Separation of Powers provi-
For a new construction of a state statute, we have adopted the balancing analysis in Stovall v. Denno,47 which requires considering (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.48 The outcome of this balancing test will generally turn on whether the new rule impacts the truth-finding function or is merely procedural.49 New state non-constitutional rules that impact the truth-finding function are usually retroactive, at least to cases pending on direct appeal or not yet final, while rules that do not impact the truth-finding function are usually accorded limited prospectivity.50 Exceptions to this general principle can occur if the reliance or “administration of justice” factors in the Stovall inquiry are unusually high for a truth-finding rule or insignificant for a procedural rule.51
We have not yet determined what retroactivity analysis should apply to new rules of state constitutional origin.52 We conclude that, at least when the new state constitutional rule does not involve a personal right of the defendant, a Stovall analysis is appropriate. That is the case here because the separation of powers violation is the violation of a right of the courts, not of any personal right of the defendant. We turn then, to the Stovall test.
What costs a defendant pays has nothing to do with the truth-finding function of a criminal trial. It is a financial burden on the defendant, but there is nothing inherently inappropriate about making the defendant pay a fee as a result of being convicted or otherwise suffering an adverse outcome in criminal proceedings. Consequently, the purpose factor weighs against retroactivity. We also conclude that the State‘s reliance interests are heavy, especially for money collected for comprehensive rehabilitation, a specific state program. Although less heavy, the State‘s reliance interest in having a revenue stream from the abused children‘s counseling account is significant. The reliance factor, therefore, weighs against retroactivity. We also find that imposing our separation of powers holding retroactively could create large administrative burdens on court clerks throughout the state, so the administration-of-justice factor weighs against retroactivity.
We do, however, recognize the need to reward parties who persuade a court to overturn an unconstitutional statute,53 and we conclude that applying the new constitutional rule to the parties in the present case is necessary, but not quite sufficient to satisfy that need. Other defendants have challenged one or both of the fees at issue
G. Disposition
We conclude that
CONCURRING OPINION
Hervey, J., filed a concurring opinion.
I agree with the majority‘s disposition of this case and join its opinion, but I write separately to address two issues.
First, although the majority correctly addresses only the $133 consolidated court-cost fee because that is the only one at issue in this case, there are other consolidated court costs that are also affected by this Court‘s opinion. In fact, a consolidated court cost is assessed against anyone convicted of any criminal offense except pedestrian or parking-of-a-motor-vehicle offenses.
| Consolidated Fees on Conviction | ||
|---|---|---|
| Before Salinas | Post-Salinas | |
| Felony | $133.00 | $119.93 |
| Class A & B misdemeanors | $83.00 | $74.84 |
| Nonjailable offenses, including a criminal violation of a municipal ordinance, other than a pedestrian or parking-of-a-motor-vehicle offense | $40.00 | $36.07 |
Id.
Second, there are 254 counties in the State of Texas, and many of those counties have more than one clerk:1 district court
DISSENTING OPINION
Yeary, J., filed a dissenting opinion in which Richardson and Newell, JJ., joined.
In this case the Majority decides that one of two subsections of a Texas statute is facially unconstitutional, not because the language of the subsection itself irreconcilably conflicts with the language of the Texas Constitution, but because of information the Majority observed on a website. It then declares a second subsection of the statute to be facially unconstitutional because, after monies are collected pursuant to the language of the statute, another, different statute directs those monies to be allocated to an agency that might possibly be capable of using some of those allocated funds for a non-criminal justice purpose (although Appellant has offered this Court no concrete examples of that occurring). In neither instance does the Majority demonstrate that the language of the statutory subsections are in actual conflict with the Constitution. In fact, at one point, the Majority suggests to the Legislature that it might save the subsections at issue if the Legislature were only to enact yet another separate statute that “redirects the funds to a legitimate criminal justice purpose.” Majority Opinion at 113 n.54.
The Majority errs by failing to acknowledge and apply the proper standard of review attached to claims that statutes are facially unconstitutional. The Majority observes that a “facial challenge to a statute is a challenge to the statute in all of its applications.” Majority Opinion at 106. I take no issue with that claim, but more must be said. The truth is that a statute must not be found to be facially unconstitutional unless the proponent of the claim can satisfy the reviewing court that there is no possible application of the statute that is constitutional. State v. Johnson, 475 S.W.3d 860, 864 (Tex. Crim. App. 2015) (citing Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 & n.6, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) for the proposition that “a facial challenge to the constitutionality of a statute can succeed only when it is shown that the statute is unconstitutional in all of its applications.“). The Majority‘s failure to acknowledge and apply that standard here has led it to err.
The Consolidated Fees on Conviction statute found in the Local Government Code requires the collection of fees in criminal cases and the allocation of those fees to various accounts and funds.
In Peraza v. State, this Court very recently held 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 allows for a constitutional application that will not render the courts tax gatherers in violation of the separation of powers.” Peraza v. State, 467 S.W.3d 508, 517 (Tex. Crim. App. 2015). In that case, we looked beyond the statute at issue—the DNA record fee, which seemed on its face to be at least potentially unconstitutional in that it directed one portion of money collected pursuant to its terms to be deposited to the criminal justice planning account and another portion to the state highway fund—in order to save it; we did not look beyond the statute at issue there in order to find a reason to declare it unconstitutional. We also said there, that in order “[t]o determine whether a statute always operates unconstitutionally in all possible circumstances, we must look to see if there are potential applications of the statute that are constitutionally valid.” Id. at 516. We did not ask whether there might be any conceivable applications of the statute that might be unconstitutional. The Majority in this case looks beyond the challenged statute at issue, and determines that some of the uses to which the fees might be put, after they are collected and allocated, might not serve what it deems to be legitimate criminal justice purposes; so it declares the statutory subsections facially unconstitutional.
With regard to Subsection (e)(1), the Majority examines the history of the “abused children‘s counseling” account, noting that it was “moved to its current place in Local Government Code § 133.102” after the repeal of a predecessor statute in January of 2004. Majority Opinion at 110. The Majority then observes that “[t]he Comptroller‘s website says that the money collected for abused children‘s counseling is deposited in the General Revenue Fund.”1 Majority Opinion at 110. It then declares, “The result of these legislative actions is that . . . the program to which the funds are directed no longer exists . . . .” Id. at 110. The Majority finally decides, “We cannot uphold the constitutionality of funding this account through court costs . . . .” Id.
First, it is not up to us to “uphold” or not to “uphold” the constitutionality of this statute. It is Appellant‘s burden to persuade us that there is no possible application of the statute that is constitutional. Appellant has not persuaded me. Counseling abused children, it seems to me, is a legitimate criminal justice purpose. The Majority takes issue with the fact that the office of the Texas Comptroller claims on its website that it currently directs these funds to the “General Revenue Fund.” But the Comptroller‘s website actually claims that they are deposited to ”unappropriated General Revenue.” See note 1, supra. The place where the Comptroller currently
Regardless, the ultimate use of the funds collected and allocated pursuant to Section 133.102 cannot make the statute under which the funds were collected and allocated unconstitutional. The Comptroller could use the funds allocated under Section 133.102(e)(1) to fund counseling for abused children. And even if it does not, the Comptroller could be depositing these funds in general revenue only because, for the time being, the Legislature has not provided for an alternative place to put the funds. In any event, the Appellant has failed to demonstrate that these funds will not be used to fund counseling for abused children or that the collection and allocation of these funds do not serve a legitimate criminal justice purpose. Consequently, Appellant has failed to overcome his burden to show that there is no possible constitutional application of the law.
With regard to Subsection (e)(6), the Majority observes that “the ‘Comprehensive Rehabilitation’ account is a general revenue fund dedicated to ‘provide rehabilitation services [...] to individuals determined [...] to be eligible for the services under a vocational rehabilitation program or other program established to provide rehabilitation services.‘” Majority Opinion at 108 (quoting
The Majority says that “courts are delegated a power more properly attached to the executive branch if a statute turns the courts into ‘tax gatherers,’ but the collection of fees in criminal cases is a part of the judicial function ‘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 a legitimate criminal justice purpose.‘” Majority Opinion at 107 (quoting Peraza, 467 S.W.3d at 517). The fees collected and allocated by the statutory subsections assailed by the Appellant in this case are collected and allocated for legitimate criminal justice purposes. They are not taxes.2
Newell, J. filed a dissenting opinion, in which Richardson, J., joined.
Of late, this Court has gotten fairly adept at striking down statutes as facially unconstitutional. Though there are some exceptions, these cases have generally applied a different standard of review than the one at work in this case. Those cases dealt with First Amendment, “overbreadth” challenges rather than the type of pure facial challenge we consider here that attacks a statute in its every application. See e.g. Ex parte Perry, 483 S.W.3d 884 (Tex. Crim. App. 2016); State v. Johnson, 475 S.W.3d 860 (Tex. Crim. App. 2015); Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014); Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). The Legislature even passed a law requiring courts to provide notice to the Attorney General before holding a statute unconstitutional, which this Court promptly held unconstitutional. See Ex parte Lo, 424 S.W.3d 10, 27 (Tex. Crim. App. 2013) (opinion on reh‘g.) (holding that section 402.010 of the Texas Government Code unconstitutional because it violates the separation-of-powers provision of the Texas Constitution). Nevertheless, the Court‘s analysis in this regard has always been appropriately rigorous given the drastic nature of holding a statute unconstitutional.
That is not the case here. As Judge Yeary‘s dissent explains, a true facial challenge to a statute requires this Court to look for ways to uphold the statute, not ways to strike the statute down. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.“). If the statute can result in the collection of funds for a legitimate criminal justice purpose, then it is not unconstitutional in every application. Peraza v. State, 467 S.W.3d 508, 516 (Tex. Crim. App. 2015) (“To determine whether a statute always operates unconstitutionally in all possible circumstances, we must look to see if there are potential applications of the statute that are constitutionally valid.“). There is no question that funds limited at collection to pay for comprehensive rehabilitation and abused children‘s counseling could be used for legitimate criminal justice purposes. The Court concedes as much. Maj. op. at 108.
That is why I do not agree with the Court that the failure of a statute to fur-
The Court compounds this problem by reading the limitations in the statutory provisions at issue in Peraza to be a necessary condition for constitutionality rather than merely a sufficient one. Unquestionably, the statutes at issue in Peraza provided more express limitations on the use of the court costs collected than are present in this case. See Peraza, 467 S.W.3d at 519. (“Because a portion of the DNA record fee collected is deposited into the criminal justice planning account, and the criminal justice planning account is statutorily required to reimburse monies spent collecting DNA specimens from offenders charged with certain offenses (including aggravated sexual assault of a child under
Yet, we never held that those limitations were required; we simply held that the interconnected statutory provisions “allow” for such funds to be expended for legitimate criminal justice purposes. Id. at 521. When we focused upon the remoteness of potential unconstitutional “applications“, we still focused on how the money could have been spent, not on how it had been collected. Id. at 521. (“The statutory scheme allocating these resources to the state highway fund are required, via interconnected statutory provisions, to be expended for legitimate criminal justice purposes.“). And at all times we maintained that it was the defendant‘s burden to show that it was not possible for the statute to operate constitutionally under any circumstance. Id.
If we are truly looking at whether the interconnected statutes are facially unconstitutional without regard to how the money is spent, then we should only be looking at whether the terms of the statutes specifically prevent, at the time of collection, the use of the funds for any legitimate criminal justice purpose. Peraza, 467 S.W.3d at 516 (“[W]e cannot hold a statute requiring the assessment of court costs facially unconstitutional simply because there might be a potential and/or remote circumstance in which it may be applied unconstitutionally.“). If such a statute were passed, it would, by its own terms rather than its possible effects, be unconstitutional in all of its applications. Admittedly, such a statute would seem unlikely to pass because it would be notoriously unconstitutional. But that accurately reflects how difficult it should be for the legislature to draft a statute that is unconstitutional in every application and how easy and obvious it should be to spot such constitutional infirmities.
The court‘s requirement of an express limitation of the statutes in question to only constitutional applications obviates the need for any presumption of constitutionality. State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013) (“[A]nalysis of a statute‘s constitutionality must begin with the presumption that the statute is valid and that the Legislature did not act arbitrarily or unreasonably in enacting it.“). Moreover, it turns that well-established presumption on its head and removes any need for as-applied constitutional challenges.1 This Court‘s holding could have far-reaching consequences for facial constitutional challenges to other statutes. That is why I whole-heartedly agree with Judge Yeary, and why I join his dissent.
But I write separately to clarify that arguing that the statutes at issue are constitutional is not the same thing as endorsing the legislature‘s drafting or the legisla-
That is why the recent public momentum for addressing the collection and administration of court costs in the legislature is not at all surprising. Many have noted that incarcerating the indigent for the failure to pay fines and court costs threatens to turn our jails into debtors prisons. See e.g. Cain v. City of New Orleans, 184 F.Supp.3d 349 (E.D. La. 2016); Joseph Shapiro, As Court Fees Rise, The Poor are Paying the Price, http://www.npr.org/2014/05/19/312158516/increasing-court-fees-punish-the-poor; Shaila Dewan and Andrew W. Lehren, After a Crime, the Price of a Second Chance, N.Y. TIMES, Dec. 12, 2016. The Chief Justice of the Texas Supreme Court, in his recent State of the Judiciary Address, remarked, “Jailing criminal defendants who cannot pay their fines and court costs—commonly called debtors’ prison—keeps them from jobs, hurts their families, makes them dependent on society and costs the taxpayers money.” Jonathan Silver, Legislature Should Prioritize Judicial Security, Texas Supreme Court Justice Says, Texas Tribune, https://www.texastribune.org/2017/02/01/state-judiciary. The legislature has heard these concerns and is moving to respond. Legislation is currently pending that begins to address the serious problems attendant to funding the criminal justice system through fees paid by indigent criminal defendants. See Tex. H.B. 1465, 85th Leg., R.S. (2017).
But by stepping in to address a political issue as a constitutional one, we risk stealing that momentum away from the branch of government best able to treat the issue as a systemic one after input from all the relevant stakeholders. See Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 451 (2008) (noting that, “facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.“); see also Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 329, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006) (noting that courts must keep in mind that “‘[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’ “). As a Court, we can only look at the issue through an analytical keyhole—made all the more tiny by a harshly deferential standard of review—as each statute winds its way through the court system, Peraza, 467 S.W.3d at 518 (“Whether a criminal justice purpose is ‘legitimate’ is a question to be answered on a statute-by-statute/case-by-case basis.“). It is ironic that
The late Supreme Court Justice Antonin Scalia famously quipped that “a lot of stuff that‘s stupid is not unconstitutional.” Jennifer Senior, In Conversation: Antonin Scalia, NEW YORK MAGAZINE, Oct. 6, 2013. He was, of course, expressing the view that not everything that is undesirable, annoying, or even harmful rises to the level of a constitutional crisis. Brown v. Chicago Board of Education, 824 F.3d 713, 714 (7th Cir. 2016). He even went so far as to suggest that judges should be given a stamp that says, “stupid but constitutional.” Id. These statutory provisions illustrate the need for such a stamp. If only the Court would use it.
With these thoughts, I dissent.
Newell, J. filed a concurring opinion.
I have already noted my disagreement with this Court‘s opinion on original submission.1 Both parties—each relying in part upon arguments in Judge Yeary‘s dissent as well as my own—ask this Court to grant rehearing in this case. When both sides want to undo the original opinion, perhaps that says something.
Nevertheless, I join the Court‘s decision to deny rehearing. Despite my misgivings about the Court‘s holding and its analysis, neither party in this case has pointed to any arguments that were not considered by the Court or new law that could not have been considered on original submission. This should be the guiding principle for granting rehearing. And that is why I vote to deny.
With these thoughts I concur.