Opinion
NO. 03-17-00032-CR
08-31-2017
Casey James Garrett, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 75240 , HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Casey James Garrett was convicted of possession of a controlled substance of less than one gram, a state-jail felony. See Tex. Health & Safety Code § 481.115(b). The trial court sentenced him to two years in state jail and assessed court costs of $361, which included $133 as a consolidated court cost. In one issue, Garrett argues that the imposition of a portion of that fee is unconstitutional. We will affirm.
DISCUSSION
I. Recent changes to the statute governing consolidated court costs
Consolidated court costs are statutorily mandated by section 133.102 of the Texas Local Government Code. Under section 133.102(a)(1), a person convicted of a felony must pay $133 as "a court cost" in addition to all other costs. Tex. Loc. Gov't Code § 133.102(a)(1). Under the version of the statute in effect at the time of the underlying proceedings, section 133.102(e) required the comptroller to allocate court costs to fourteen different accounts in percentages assigned to each account. Id. § 133.102(e).
The recent amendment of that statute is explained below.
However, the Texas Court of Criminal Appeals recently held section 133.102 facially unconstitutional. See Salinas v. State, ___ S.W.3d ___, ___, No. PD-0170-16, 2017 WL 915525, at *4, *5 (Tex. Crim. App. Mar. 8, 2017). The court determined that two of the accounts listed in section 133.102(e) violated the separation of powers clause of the Texas Constitution because they were not related to a legitimate criminal-justice purpose and were instead more accurately characterized as a tax. Id. (striking down subsections (e)(1) and (e)(6), which allocated portions of the $133 court cost to comprehensive rehabilitation and abused children's counseling). The remedy in that case was to modify the judgment to reduce the $133 consolidated court cost to $119.93 to delete the unconstitutional portions of the fee. Id. at *7. However, the court limited the retroactive application of its holding to certain defendants: (1) those who had raised the appropriate claim in a petition for discretionary review filed before, and still pending on, the date of the court's opinion, and (2) those whose trials end after the mandate in Salinas issued. Id. at *6.
The Salinas court further stated that if the legislature redirected the funds in subsections (e)(1) and (e)(6) to a legitimate criminal-justice purpose, then trial courts could continue to collect the entire consolidated court cost. Id. at *6 n.54. The court noted that, if the legislature amended the statute before mandate in that case issued, "the only cases that will be affected by this opinion will be the few that are now pending in this Court and are appropriate for relief." Id. The legislature has amended the statute as advised by the court: It deleted former subsections (e)(1) and (e)(6) and redirected those funds to the fair-defense account in former subsection (e)(14) (now subsection (e)(12)). See Tex. Loc. Gov't Code § 133.102(e) (amended by Act of Apr. 27, 2017, 85th Leg., R.S., ch. 966, § 1 (effective June 15, 2017)). That amendment went into effect on June 15, 2017, preceding the mandate in Salinas, which issued on June 30, 2017. Id.; see also Hurtado v. State, No. 02-16-00436-CR, 2017 WL 3188434, at *1 (Tex. App.—Fort Worth July 27, 2017, no pet. h.) (mem. op., not designated for publication) (observing same).
II. Garrett is not entitled to relief from the consolidated court costs
Here, the bill of costs shows that the $133 consolidated court cost was assessed in Garrett's case. However, because no petition for discretionary review is pending on Garrett's claim, and the underlying proceedings in the trial court ended on December 16, 2016—well before the Salinas mandate issued—the court's holding in Salinas does not apply to the present case. See Salinas, 2017 WL 915525, at *6. Further, because the legislature timely amended the consolidated-court-costs statute, trial courts may continue to collect the entire consolidated court cost as authorized under section 133.102(a). See id. at *6 n.54.
Garrett asks that we reject the majority holding in Salinas, citing analysis advanced in the dissenting opinion. See id. at *12 n.2 (Newell, J., dissenting). However, as an intermediate court, we must follow the majority holding in that case, which prohibits retroactive application of its holding to Garrett's case. See Pape v. Guadalupe-Blanco River Auth., 48 S.W.3d 908, 916 (Tex. App.—Austin 2001, pet. denied) (citing Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993)) (intermediate courts are bound to follow precedents of higher courts). Accordingly, we overrule Garrett's sole issue.
CONCLUSION
We affirm the judgment of the trial court.
/s/_________
Cindy Olson Bourland, Justice Before Justices Puryear, Field, and Bourland Affirmed Filed: August 31, 2017 Do Not Publish