Peraza v. State

• Decision Date: 01 July 2015
• Docket Number: NO. PD–0100–15 & NO. PD–0101–15,PD–0100–15 & NO. PD–0101–15
• Parties: Osmin Peraza, Appellant v. The State of Texas
• Court: Texas Court of Criminal Appeals

467 S.W.3d 508

Osmin Peraza, Appellant

v.The State of Texas

NO. PD–0100–15 & NO. PD–0101–15

Court of Criminal Appeals of Texas.

DELIVERED: July 1, 2015

Rehearing Denied September 16, 2015

Jani Maselli Wood, Harris County Public Defender, Houston, TX, for Appellant.

Lisa McMinn, State Prosecuting Attorney, Austin, TX, for The State.

OPINION

Richardson, J., delivered the opinion for a unanimous Court.

We granted the State's Petition For Discretionary Review to address whether the First Court of Appeals correctly determined that a cost of court “Related to DNA Testing,” assessed pursuant to Texas Code of Criminal Procedure, Article 102.020, is an unconstitutional tax that violates the separation of powers clause under the Texas Constitution.¹ We hold that Article 102.020 is not facially unconstitutional, and we therefore reverse the decision of the First Court of Appeals.

BACKGROUND

“Houston, We Have A Problem”

Osmin Peraza was indicted in Harris County under separate cause numbers for two instances of aggravated sexual assault of a child under the age of fourteen.² After Peraza pled guilty to the two offenses, the trial court assessed punishment in the amount of twenty-five years for each offense, to run concurrently. Each judgment contained a court cost assessment of $250 for a “DNA RECORD FEE.” This DNA record fee is required to be assessed as a cost of court pursuant to Texas Code of Criminal Procedure, Article 102.020, entitled “Costs Related to DNA Testing.” Article 102.020(a) provides that “[a] person shall pay as a cost of court: (1) $250 on conviction of an offense listed in Section 411.1471(a)(1), Government Code.”³ Article 102.020(h) directs that “[t]he comptroller shall deposit 35 percent of the funds received under this article in the state treasury to the credit of the state highway fund and 65 percent of the funds received under this article to the credit of the criminal justice planning account in the general revenue fund.”⁴

On appeal, Peraza challenged the assessment of this DNA record fee, claiming it was an unconstitutional tax that violated the separation of powers clause of the Texas Constitution.⁵ This argument was based on the language in Article 102.020(h) directing how such court costs are to be disbursed. In other words, argued Peraza, by requiring the courts to impose this “tax” for the benefit of the state highway fund and the criminal justice planning account, the Legislature had reduced the courts to a tax-gathering agency of the executive branch, which would be in violation of the separation of powers doctrine.

The majority panel of Houston's First Court of Appeals agreed with Peraza that the statute was facially unconstitutional, and on December 30, 2014, the First Court issued its opinion modifying both judgments to delete the $250 DNA record fee. Peraza v. State, 457 S.W.3d 134 (Tex.App.—Houston [1st Dist.] 2015). Relying on Ex Parte Carson, 143 Tex.Crim. 498, 159 S.W.2d 126 (1942), the First Court held that the DNA Record Fee collected pursuant to Article 102.020 was an unconstitutional tax, not a legitimate court cost, because it was neither necessary nor incidental to the trial of a criminal case. Peraza, 457 S.W.3d at 149.

Six months before the First Court of Appeals issued its opinion in Peraza, Houston's Fourteenth Court of Appeals issued a contrary unanimous panel opinion in O'Bannon v. State, 435 S.W.3d 378 (Tex.App.—Houston [14th Dist.] 2014, no pet.).

Like Peraza, Bennett Keith O'Bannon challenged the assessment of the court costs related to DNA testing, pursuant to Article 102.020, as facially unconstitutional as a matter of law. O'Bannon asserted the same argument raised by Peraza—that Article 102.020 impermissibly compels the courts to collect a tax in violation of separation of powers principles. The Fourteenth Court held that O'Bannon failed to satisfy his burden to show that Article 102.020 was invalid in all possible applications and thus affirmed the trial court's overruling of his facial challenge to the statute. O'Bannon v. State, 435 S.W.3d at 382. Neither the State nor O'Bannon filed a petition for discretionary review, so this Court did not have an opportunity to examine the Fourteenth Court's opinion.

Because of these conflicting opinions decided by the two appellate courts in Houston, we granted review to examine the facial constitutionality of Article 102.020.⁶

ANALYSIS

“The Right Stuff”—The Constitutionality of Article 102.020

A. Arguments of the Parties

Peraza argues that the First Court correctly held that Article 102.020 is facially unconstitutional under the separation of powers clause of the Texas Constitution because the “DNA RECORD FEE” is an impermissible tax collected by the judiciary, rather than a legitimate court cost. This argument is based upon the assertion that revenue from this fee is dedicated to the state highway fund and criminal justice planning account, and thus used for services that are neither necessary nor incidental to the trial of a criminal case.

In support of his argument, Peraza relies, as the First Court did, on Ex Parte Carson, 143 Tex.Crim. 498, 159 S.W.2d 126 (1942). In Carson, this Court considered whether it was constitutionally permissible to impose a $1 fee as a court cost in all cases filed in counties with more than eight district courts and more than three county courts, including county courts at law.⁷ The revenue collected from the $1 fee was directed to the “County Law Library Fund” and “available to be used for certain costs and expenses in acquiring, maintaining and operating a law library available to the judges of the courts and to the attorneys of litigants in the courts.” Id. at 127. In Carson, this Court addressed “whether or not such charge can be legitimately considered to be proper ‘costs' in the trial of a case,” and concluded that “the tax imposed by the bill is not and cannot be logically considered a proper item of cost in litigation, particularly in criminal cases.” Id. at 127. This Court cautioned that to hold otherwise

would lead into fields of expenditures which may as well include the cost of the court houses, the automobiles which officers use to apprehend criminals, and even the roads upon which they ride. If something so remote as a law library may be properly charged to the litigant on the theory that it better prepares the courts and the attorneys for the performance of their duties, it occurs to us that we might as logically tax an item of cost for the education of such attorneys and judges and even the endowments of the schools which they attend.

Id. The Court held that the bill authorizing the collection of the $1 cost was in violation of Section 56 of Article 3 of the Texas Constitution.⁸ This Court further held in Carson that such cost was unconstitutionally discriminatory because defendants were taxed differently depending on the county in which they were convicted. Id. at 130. In the Court's opinion on the State's Motion for Rehearing in Carson, this Court clarified “that the item of one dollar taxed as costs for the Law Library Fund is neither necessary nor incidental to the trial of a criminal case, and that it is not a legitimate item to be so taxed.” Ex Parte Carson, 143 Tex.Crim. 498, 159 S.W.2d 126, 130 (1942) (op. on motion for reh'g).

In this case, the State urges us to reject the application of Ex Parte Carson, arguing that the DNA record fee is not a tax and is thus constitutional on its face. In support of its argument, the State cites to other jurisdictions that have found similar court cost statutes to be constitutional.⁹

B. Reviewing a Facial Challenge to a Statute Mandating Court Costs¹⁰ (1) The Standard of Review

The burden rests upon the individual who challenges a statute to establish its unconstitutionality. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978). When reviewing the constitutionality of a statute, “we commence with the presumption that such statute is valid and that the Legislature has not acted unreasonably or arbitrarily in enacting the statute.” Id. We must seek to interpret a statute such that its constitutionality is supported and upheld. Luquis v. State, 72 S.W.3d 355, 365 n. 26 (Tex.Crim.App.2002) (citing to United States v. National Dairy Products, Inc., 372 U.S. 29, 32, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963) ). A reviewing court must make every reasonable presumption in favor of the statute's constitutionality, unless the contrary is clearly shown. Granviel, 561 S.W.2d at 511 ; see Tex. Gov't Code Ann. § 311.021 (West 2013) (stating that courts presume “compliance” with the Texas and United States Constitutions).

“A facial challenge is an attack on a statute itself as opposed to a particular application.” City of Los Angeles v. Patel, –––U.S. ––––, ––––, 135 S.Ct. 2443, 192 L.Ed.2d 435 (2015). In order to successfully mount a facial challenge to Article 102.020, Peraza must establish that no set of circumstances exists under which that statute would be valid. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ; State v. Rosseau, 396 S.W.3d 550, 557 (Tex.Crim.App.2013) ; Santikos v. State, 836 S.W.2d 631, 633 (Tex.Crim.App.1992). Under the proper facial-challenge analysis, only applications of a statute in which the statute actually authorizes or prohibits conduct are considered. City of Los Angeles v. Patel, ––– U.S. ––––, ––––, 135 S.Ct. 2443, 192 L.Ed.2d 435 (2015) (citing to Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) ). Because courts are to “consider the statute only as it is written, rather than how it [may operate] in practice,”¹¹ it would be improper in this case to evaluate the facial constitutionality of Article 102.020 by theorizing where the funds collected pursuant to Article 102.020(a)(1), and distributed pursuant to Article 102.020(h), might be spent.

Nevertheless, in examining whether Peraza has met his burden of establishing that it is not...