Salinas v. State, PD–0170–16

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation523 S.W.3d 103
Docket NumberNO. PD–0170–16,PD–0170–16
Parties Orlando SALINAS, Appellant v. The STATE of Texas
Decision Date08 March 2017

523 S.W.3d 103

Orlando SALINAS, Appellant
The STATE of Texas

NO. PD–0170–16

Court of Criminal Appeals of Texas.

Delivered: March 8, 2017

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

Bridget Holloway, Assistant District Attorney, Houston, TX, Stacey Soule, Austin, TX, for The State.

Keller, P.J., delivered the opinion of the Court in which Keasler, Hervey, Alcala, and Walker, JJ., joined. Hervey, J. filed a concurring opinion. Yeary, J., filed a dissenting opinion in which Richardson and Newell, JJ., joined. Newell, J., filed a dissenting opinion in which Richardson, J., joined. Keel, J., did not participate.

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.


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, Texas Local Government Code § 133.102.2

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 statute were not sufficiently related to

523 S.W.3d 106

the court system to be valid recipients of money collected as court costs.3 The court of appeals rejected appellant's claim,4 but on his petition to this Court, we reversed and remanded the case for further consideration.5 On remand, appellant challenged the consolidated fee on the basis of three of the accounts listed in the statute.6 Now, on discretionary review, appellant challenges only two accounts.

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


A. Facial Challenges, Separation of Powers, and Court Costs

Appellant claims that Local Government Code § 133.102 is facially unconstitutional in its entirety because some of the funds from the consolidated fee are statutorily apportioned to accounts that do not serve legitimate criminal justice purposes. A facial challenge is an attack on the statute itself as opposed to a particular application.10 Except when First Amendment freedoms are involved, a facial challenge to a statute is a challenge to the statute in all of its applications.11

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

523 S.W.3d 107

branch."13 The 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 legitimate criminal justice purposes."14 What constitutes a legitimate criminal justice purpose is a question to be answered on a statute-by-statute/case-by-case basis.15 And the answer to that question is determined by what the governing statute says about the intended use of the funds, not whether funds are actually used for a criminal justice purpose.16

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 footnote17 ].

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

[523 S.W.3d 108

to "provide rehabilitation services directly or through public or private resources to individuals determined ... to be eligible for the services under a vocational rehabilitation program or other program established to provide rehabilitation services."18 These rehabilitation services are administered within the authority of the Health and Human Services Commission (HHSC).19 The statute does not, on its face, appear to serve a legitimate criminal justice purpose. Nothing in the statute that describes the functions of HHSC restricts its mission to, or even mentions, anything relating to criminal justice.20 HHSC does not, for example, provide rehabilitation services only to victims of crime.21 Nor is there any criminal justice restriction imposed on the use of the funds contained in the comprehensive rehabilitation account22 or on the use of funds transferred to that account from the consolidated fee collected as court costs.23 No criminal justice purpose is even mentioned.

The State contends that, under § 117.081 of the Human Resources Code, comprehensive rehabilitation services assist persons with "traumatic brain or spinal cord injuries" and that such injuries could easily be caused by a crime.24 The State also argues that, under § 772.0063 of the Government Code, the governor is charged with establishing a comprehensive rehabilitation treatment program for child victims of sex trafficking.25 It is true that victims of crime may avail themselves of the services of HHSC if they otherwise

523 S.W.3d 109

qualify, but that does not make a...

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  • State v. Doyal, PD-0254-18
    • United States
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    ...speech than is necessary to further the government's legitimate interests") (citations and quotations omitted).1 See Salinas v. State , 523 S.W.3d 103 (Tex. Crim. App. 2017) (Newell, J., dissenting) ("Of late, this Court has gotten fairly adept at striking down statutes as facially unconsti......
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    ...Appellant's argument with regard to the "abused children's counseling" and "comprehensive rehabilitation" accounts. Salinas v. State, 523 S.W.3d 103, 108 (Tex.Crim.App. 2017). For reasons detailed in that opinion, the proceeds earmarked for those two specific accounts were going into either......
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1 books & journal articles
  • Post-trial issues
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    ...account, it is facially unconstitutional in violation of the Separation of Powers provision of the Texas Constitution. Salinas v. State, 523 S.W.3d 103, 109 (Tex. Crim. App. 2017). To the extent that Local Government Code §133.102 allocates funds to the “abused children’s counseling” accoun......

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