Summary
noting that the clerk's fee is "intended to be spent reimbursing the clerk for services listed in the statute attendant to a criminal court proceeding and . . . serves a legitimate criminal justice purpose"
Summary of this case from Townsend v. StateOpinion
No. 05-17-00220-CR
06-11-2018
CHRISTOPHER TRAIVON THORNTON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3 Dallas County, Texas
Trial Court Cause No. F-1700019-J
MEMORANDUM OPINION
Before Justices Lang-Miers, Evans, and Schenck
Opinion by Justice Lang-Miers
Appellant Christopher Traivon Thornton was charged with the offense of aggravated sexual assault of a child. Appellant waived a jury, judicially confessed to the offense as charged in the indictment, and entered an open plea of guilty. After a bench trial on punishment, the trial court sentenced appellant to thirty years' imprisonment.
On appeal, appellant claims that the clerk's fee in the bill of costs should be deleted from the court costs assessed because the statute authorizing the fee, TEX. CODE CRIM. PROC. art. 102.005, is facially unconstitutional. Appellant further claims that the judgment should be modified because it reflects an unsupported $25.00 addition to the total of the court costs assessed. We affirm.
Standard of Review
Appellant bears the burden to prove the statute he challenges is facially unconstitutional. Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015). This Court begins with the presumption that a statute is valid and that the legislature has not acted unreasonably or arbitrarily in enacting the statute. Id. We make every reasonable presumption in favor of the statute's constitutionality, unless the contrary is clearly shown. Id.
A facial challenge to the constitutionality of a statute is an attack on the statute itself as opposed to any particular application of that statute. Id. In order to be successful on a facial challenge to Article 102.005, appellant must establish that the statute would not be valid under any set of circumstances. Id. Under the proper facial challenge analysis, only applications of the statute in which the statute actually authorizes or prohibits conduct are considered. Id.
Constitutional Challenge
The Texas Constitution expressly guarantees the separation of powers between the three branches of government. TEX. CONSt. art. II, § 1; Salinas v. State, 523 S.W.3d 103, 106 (Tex. Crim. App. 2017). The Texas Constitution states as follows:
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.TEX. CONST. art. II, § 1. The Separation of Powers provision is violated when one branch of government assumes or is delegated a power more properly attached to another branch. Salinas, 523 S.W.3d at 106-107. If a statute turns the courts into tax gatherers, then the statute delegates to the courts a power more properly attached to the executive branch. Id.
Analysis
The collection of fees in a criminal case is a part of the judicial function if the statute under which the court costs are assessed provides for an allocation of such court costs to be expended for legitimate criminal justice purposes. Salinas, 523 S.W.3d at 107. The Court of Criminal Appeals has held that what constitutes a legitimate criminal justice purpose is a question to be answered on a "statute-by-statute/case-by-case" basis. Id. The answer to that question is to be determined by what the governing statute says about the intended use of the funds, not whether the funds are actually used for a criminal justice purpose. Id.
Appellant relies on Salinas where the Court of Criminal Appeals held that fees assessed under portions of TEX. LOC. GOV'T CODE § 133.102, the consolidated fee statute, that were allocated to "comprehensive rehabilitation" and "abused children's counseling" were facially unconstitutional in violation of the Separation of Powers provision of the Texas Constitution because those accounts did not serve a legitimate criminal justice purpose. Salinas, 523 S.W.3d at 113. Here, appellant claims that because the statute authorizing collection of the clerk's fee does not specify for what purposes it may be used, it is an unconstitutional delegation of taxing authority to the court. Appellant asks this court to reform the judgment to delete the clerk's fee. We disagree with appellant.
The Court of Criminal Appeals did not invalidate the entire statute, but reduced the amount of fees assessed pro rata to eliminate the percentage of the fees associated with those two accounts. Salinas v. State, 523 S.W.3d 103, 105, 113 (Tex. Crim. App. 2017). The legislature has since remedied the unconstitutional portion of the statute identified in Salinas. See TEX. LOC. GOV'T CODE § 133.102(3).
The office of the district clerk was created by the Texas Constitution. TEX. CONST. art. V, § 9 (providing that there "shall be a Clerk for the District Court of each county..."). The clerk is the custodian and supervisor of all of the records of the court. TEX. GOV'T CODE §§ 51.303, 51.304; State v. Hardy, 769 S.W.2d 353, 354-55 (Tex. App.—Houston [1st Dist.] 1989, no pet.).
In a criminal proceeding, the clerk of the district court has certain very specific duties:
(a) In a criminal proceeding, a clerk of the district or county court shall:
TEX. CODE CRIM. PROC. art. 2.21 (a).(1) receive and file all papers;
(2) receive all exhibits at the conclusion of the proceeding;
(3) issue all process;
(4) accept and file electronic documents received from the defendant, if the clerk accepts electronic documents from an attorney representing the state;
(5) accept and file digital multimedia evidence received from the defendant, if the clerk accepts digital multimedia evidence from an attorney representing the state; and
(6) perform all other duties imposed on the clerk by law.
Payment of a clerk's fee by a criminal defendant is authorized by TEX. CODE CRIM. PROC. art. 102.005, which provides, in relevant part, as follows:
(a) A defendant convicted of an offense in a county court, a county court at law, or a district court shall pay for the services of the clerk of the court a fee of $40.
(b) In this article, a person is considered convicted if:
(1) a sentence is imposed on the person;
(2) the person receives community supervision, including deferred adjudication; or
(3) the court defers final disposition of the person's case.
(c) Except as provided by Subsection (d), the fee imposed under Subsection (a) is for all clerical duties performed by the clerk, including:
(1) filing a complaint or information;
(2) docketing the case;
TEX. CODE CRIM. PROC. art. 102.005.(3) taxing costs against the defendant;
(4) issuing original writs and subpoenas;
(5) swearing in and impaneling a jury;
(6) receiving and recording the verdict;
(7) filing each paper entered in the case; and
(8) swearing in witnesses in the case.
The statute clearly states that the clerk's fee is to "pay for the services of the clerk of the court" for "all clerical duties performed by the clerk." Id.; see Diaz v. State, No. 03-17-00107-CR, 2017 WL 2928115, at *1 (Tex. App.—Austin July 7, 2017, no pet.) (not designated for publication) (recognizing that the imposition of a $40 district clerk's fee is authorized by Article 102.005(a) for defendants convicted in district courts). And a defendant is obligated to pay the clerk's fee as a result of being convicted of a crime. As the Court of Criminal Appeals has held, there is nothing inherently inappropriate about making a defendant pay a fee as a result of being convicted or otherwise suffering an adverse outcome in criminal proceedings. Salinas, 523 S.W.3d at 112. Because appellant was convicted of a second degree felony in a district court in Dallas County, Texas, assessment of the clerk's fee is authorized. Peraza, 467 S.W.3d at 517 (holding that when "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 clause.").
The First District Court of Appeals in Houston considered a similar challenge to the assessment of the clerk's fee. Davis v. State, 519 S.W.3d 251, 257 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd). In that case, the defendant also contended that the statute authorizing the clerk's fee was facially unconstitutional. In so doing, the defendant acknowledged that the statutory purposes for the fee were constitutional but claimed that the funds "nevertheless might be spent for a purpose not contemplated by the statute." Id. Relying on Peraza, the Houston Court held that the fee imposed by Article 102.005 was not a facially unconstitutional tax: "absent an as-applied challenge, when analyzing statutes imposing fees, courts should consider only those purposes actually contemplated by the statute. See Peraza, 467 S.W.3d 508, 514-15. Thus, a challenge cannot demonstrate the statute is facially unconstitutional based on how the revenues might be spent in practice. Id." Id.
In summary, appellant has not met his burden to establish that it is not possible for Article 102.005 to operate constitutionally under any and all circumstances. We conclude that the clerk's fee is not an impermissible tax collected by the judiciary. The fees are intended to be spent reimbursing the clerk for the services listed in the statute attendant to a criminal court proceeding and the clerk's fee serves a legitimate criminal justice purpose. Salinas, 523 S.W.3d at 109 n. 26; 110 n. 36.
No Modification of Court Costs
In his second issue, appellant asks that we modify the judgment to reflect the correct amount of court costs. Specifically, appellant claims that the bill of costs reflects fees in the amount of $474.00 while the judgment reflects court costs in the amount of $499.00. He claims that there is no accounting for this $25.00 discrepancy and seeks a reduction in the costs assessed to $474.00.
Our review of the bills of costs contained in the clerk's record reveals an adjusted balance of costs in the amount of $499.00. The additional $25.00 is identified as an added fee for an "installment plan" or time payment fee pursuant to TEX. LOC. GOV'T CODE § 133.103. As such, the fee is authorized and the amount of court costs of $499.00 does not require modification.
Conclusion
We overrule appellant's issues and affirm.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b) 170220F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 3, Dallas County, Texas
Trial Court Cause No. F-1700019-J.
Opinion delivered by Justice Lang-Miers. Justices Evans and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 11th day of June, 2018.