### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00027- CR

Shai n Michael P ugh, Ap pellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 264 TH JUDICI AL DISTRICT NO. 769 30, TH E H ONO RAB LE MARTH A J. TRUDO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant Shain Michae l Pugh was place d on defe rre d-adjudication community supervision afte r he pled g uilty to unauthorized use of a motor vehicle. See T ex . Penal Code § 31.07; Tex. Code Crim. Proc

. art. 42A.101. Four months later, the trial court g rante d the State’s motion to adjudicate afte r finding that appellant had violated the conditions of supervision. See Tex. Crim. Proc. Code art. 42A.108. The court adjudicate d appellant g uilty , revoke d his community supervision, and assessed his punishment at 12 months in a state jail fac ility

. See id. arts. 42A.108, 42A.110; Tex. Penal Code § 12.35. I n two points of err or, appellant challeng es the amount of court costs assessed. We a ffirm the tria l court’s judg ment adjudicating g uilt.

BACK GR OUND The State char g ed appellant by indictment with unauthorized use of a motor vehicle i n v i olation of section 31.07 of the Texas Penal Code. Pursuant to a plea- barg ain ag reem en t ,appellant pled g uilty to the offe nse. The trial court found the evidenc e sufficie nt to support a finding

of g uilt but withheld the finding , defe rre d adjudication of g uilt, and place d appellant on community supervision for five y ear s. At that time, the court orde red a ppellant to pay

court c osts as a term of his community s u p er v i s i o n. The district cler k issued an Offic ial Bill of Costs ref lecting an itemiz ation of the c osts impos ed by the trial cour

t. L ess than a month later, the State alleg ed that appel l an t violated the terms of his community supervision and filed a motion to adjudicate g uilt. After conductin g a h ea ri n g on the motion to adjudicate , the trial court adjudicate d appellant gu i l t y , revoke d his community 1

s u p ervision, sentenc ed him to 12 months in a state jail fac ility , and imposed a $500 fine. I n the written judgme nt a djudicating appellant’ s g uilt, the trial court ag ain order ed appellant to pay court
costs. The district c lerk ag ain issued an Offic ial Bill of Costs. The itemiz ed bill of costs included the following fee s imposed as “ba sic court c osts”:

Fe e Name Date A dded Amount District Clerk 12/21/17 40.00 District Clerk 8/4/17 40.00 Sheriff 12/21/17 25.00 Sheriff 8/4/17 25.00 Capias Warra

nt Fee 5/1/17 50.00 Capias Warra

nt Fee 5/1/17 50.00 Capias Warra

nt Fee 11/1/17 50.00 Clerk Court Tec hnology

Fund 12/21/17 4.00 Clerk Court Tec hnology

Fund 8/4/17 4.00

The State’s motion to adjudicate contained one alleg ation: that appellant neve r re ported 1 to his community supervision office r. At the adjudication hear ing, appellant pled t ru e t o the alleg ation. The trial court acc epted appellant’ s plea of true and found the evidenc e sufficie nt to find t h at ap p el l ant had violated his supervision conditions. Appellant then testified on his behalf , explaining why

he fe lt he should be left on community supervision. 2Courthouse Security 8/4/17 5.00

Courthouse Security 12/21/17 5.00 DistClk R ecor d Preser

vtn SB526 12/21/17 2.50 DistClk R ecor d Preser

vtn SB526 8/4/17 2.50 Records Ma

nag ement 8/4/17 22.50 Records Ma

nag ement 12/21/17 22.50 J ury Service Fund SB 1704 12/21/17 4.00 J ury Service Fund SB 1704 8/4/17 4.00 J udiciary Support HB11 8/4/17 6.00 J udiciary Support HB11 12/21/17 6.00 Consolidated Court 12/21/17 133.00 Consolidated Court 8/4/17 133.00 Time Pay ments 9/5/17 25.00 Ba sic Criminal L eg al Service s 8/4/17 2.00 Ba sic Criminal L eg al Service s 12/21/17 2.00 Administrative Transa ction Fe e 8/4/17 2.00 Administrative Transa ction Fe e 12/21/17 2.00 State Elect F iling F ee—Crimi 12/21/17 5.00 State Elect F iling F ee—Crimi 8/4/17 5.00

The total amoun t o f court costs order ed in the judgme nt adjudicating g uilt, and ref lected by the associate d bill of costs, is $677.00, of which $351.00 was assessed when appellant was place d on defe rre d-adjudication community supervision.

DISCUSSIO N Court costs are pre- deter mined, leg islatively mandated obliga tions result i ng from a conviction. Abney v. State , No. 0 3-15-00421- CR, 2016 WL 3361177, at *1 (Tex. App.—Austin J une 10, 2016, no pet.) (mem. op., not desig nated for publication); Houston v. State , 410 S.W .3d 475, 477–78 (Tex. App.—For t Worth 2013, no pet.); see Johnson v. State , 423 S.W .3d 385, 389 (Tex. Crim. App. 2014). The Texas Code of Criminal Procedur e require s that

a convicted defe ndant pay court costs. See Tex. Code Crim. Proc. arts. 42.15, 42. 1 6 ; Jo h n s on ,

3423 S.W .3d at 389. The imposit ion of court costs u p o n a cr i m i n al defe ndant is a “nonpunitive

rec oupment of the costs of judic i al re s o u rce s expended in connec tion with the trial of the case .” Johnson , 423 S.W .3d at 390 (quoting Armstrong v. Stat e , 340 S.W .3d 759, 767 (Tex

. Crim. App. 2011)). Only statutorily authorized court costs may be assessed ag ainst a defe ndant. Id. at 389; see Tex. Code Crim. Proc. art. 103.002. Court costs, as ref lected in a cer

tified bill of costs, need not be orally pronounce d or incorpora ted by ref ere nce into the written judgme nt to be eff ective. Johnson , 423 S.W .3d at 389 (citing Armstrong , 340 S.W .3d at 766–67); W eir v. State , 278 S.W .3d 364, 367 (Tex. Crim. App. 2009). Consequently , a defe ndant may raise a claim challeng ing the bases of the assessed court costs for the first time on appea l when, as in this case , those costs are not imposed in
open court and the j u d gm ent does not contain an itemiz ation of the costs. London v. State , 490 S.W .3d 503, 507 (Tex. Crim. App. 2016); Johnson , 423 S.W .3d at 3 9 1

. W h en a defe ndant challeng es the imposit ion of court costs, we revie w the assessment of costs to deter mine if there is

a basis for the costs, not to deter mine whether there i s sufficie nt evidenc e to prove eac h cost. Johnson , 423 S.W .3d at 390.

Her e, the rec ord contains a cer tified bill of costs listi ng 28 costs assess ed against appellant, see supra pp. 2–3. I n hi s fi rst point of err or, appellant makes sever al challeng es to the various costs assessed aga inst him. He first ar g ues that the c osts that were assessed both whe n he

rec eived defe rre d-adjudicatio n co m m unity supervision and upon his adjudication of g uilt wer e improperly imposed as they should have be en asse ssed only once. I n addition, he asserts that two of the costs, the sheriff

’s fee s, should not have been assessed beca us e t h ere is no basis for
t h em . Fur

ther, conce rning the consolidated court costs fee s (asse ssed upon his place ment on

4defe rre d-adjudication community supervision and ag ain upon h is a d ju d ic a ti o n of g uilt), he maintains that one of the fee s should be deleted (as it is one of the fee s that he claims was improperly assessed twice) and the other should be reduc ed beca use part of the statute authorizing the fee was found to be unconstitutional. Alterna tively , in his second point of er ror, appellant challeng es the constitutiona l i t y o f ar t icle 103.003 of the Gover nment Code as applied to him, asser ting that it is impermissibly vague beca use, acc o rd i n g t o appellant, the district cler k had discretion under the statute to assess the c omplained-of f ees twic e.

Assessm ent of Court Costs To the ex t en t that appellant challeng es t he court costs that wer e im posed when his adjudication was defe rre d and he was place d on community supervision, he is pr ocedur ally barr ed from doing so. See Perez v. State , 424 S.W .3d 81, 86 (Tex. Crim. App. 2014) (fa ilure to file timely
appea l of assessment of costs in defe rre d-adjudication order forf eits “any appellate complaint”
reg arding those costs); see, e.g. , Rogers v. State , No. 03-17-00109- CR, 2017 WL 3135951, at *2 (Tex. App.—Austin J uly 19, 2017, no pet.) (mem. op., not desig nated for pu b lication); Ireland

v. State , No. 03-14-00616- CR, 2015 WL 4914982, at *3–4 (Tex. App.—Austin Aug

. 12, 2015, no pet.) (mem. op., not desig nated for publication). Thus, our revie w of costs in this case is limit ed to the costs imposed at the time of appellant’ s adjudication of g uilt, and not those imposed at the time

o f d eferre d adjudication. See Perez , 424 S.W .3d at 86; Simmons v. State , No. 14-17-00286 -C R , 2018 WL 3028064, at *2 (Tex. App.—Houston [14t h Dist.] J une 19, 2018, no pet.) (mem. op., not desig nated f

or publication).

5Wit h reg ard to the cost s imposed upon adjudication of g uilt, appellant does not

ch al l en ge the capias war

rant fees, the time pay

ment fee , or t he adminis trative transaction fees; h e

conce des that they wer e proper ly assessed. Appellant ar g ues that the re mainder of the fee s should
not have been assessed upon adjudication of his g uilt bec ause they wer e previously assessed when he was place d on defe rre d-adjudication community supervision. He contends that article 102.073 of the Code of Criminal Procedur e prec ludes the trial court from assessing the following fee s more than one time: the $40 district cler k fee authorized by article 102.005(a) of t he C ode o f C ri m i nal Procedur e, the $4.00 cler

k court technolog y fund fee authorized by article 102.0169(a) of the Code of Criminal Procedur e, the $5.00 courthouse secur ity fee authorized b y article 102.017(a) of the Code of C ri minal Procedur e, the $25.00 fee for rec ords manag ement and rec ord prese rvation authorized by article 102.005(f) of the Code of Criminal Procedur e, the $4.00 jury service fund fee 2 authorized by article 102.0045(a) of the Code of Criminal Procedur e, the $6.00 judiciary support fee authorized by article 133.105(a) of the L ocal Gover nment Code, the $133.00 consolidated court cost fee authorized by section 133.102(a)(1) of t he L ocal Go v er nment Code, the $2.00 basic criminal 3 l ega l s ervic es fee authoriz ed by section 133.107(a) of the L ocal Government Code, and the $5.0 0
sta t e electronic filing fee authorized by section 51.851(d) of the Gover nment Code. Appellant

conce des that the listed fe es are authorized by statute but arg ues that they may be asse ssed ag ainst him only one time under article 102.073(a) of the Code of Criminal Procedur e, which provides, “I n

The bill of costs separ ates these fee s as $2.50 fo r rec ord prese rvation and $22.50 for 2 rec ords manag ement.

The Court of Criminal Appea ls rec ently held fac ially unconstitutional portions of the 3 consolidated fee statute. See Salinas v. Stat e , 523 S.W .3d 103, 108–110 (Tex. Crim. App. 2017). We addre ss appellant’s c halleng e to this court cost sepa rate ly

. 6a s i n g le criminal action in which a defe ndant is convicted of two or more offe nses or o f m u l t i p l e

counts o f t h e same offe nse, the court may assess eac h court cost or fee only once ag ainst the defe ndant.” Te x . Code Crim. Proc. art. 102.073(a ).

I n prior opinions, t h i s Court has addre ssed—and reje cted—pr evious challeng es to
court costs contending that article 102.073(a) prohibits the assessment of costs at the time of defe rre d adjudication and ag ain at the time of adjudication of g uilt. We held in those case s that the fee s wer e proper ly as s essed at both points beca use article 102.073 does not prohibit trial courts from

as s es s ing costs at the conclusion of both proce eding s. See Diaz v. State , No. 03-15-00539 -C R , 2016 WL 1084398, at *7 n.5 (Tex. App.—Austin Mar. 17, 2016, no pet.) (mem. op., not desig nated for publication); W

eatherspoon v. State , No. 03-15 -0 0236-CR, 2016 WL 286384, at *2 (Tex. App.—Austin J an. 22, 2016, no pet.) (mem. op., not desig nated for publication). We rea soned that:
[C ]ost s assessed at the point of rec eiving defe rre d[-] ad j u d i cation community supervision and then ag ain at the point o f adjudication of g uilt are distinguishable from costs assessed for eac h count or offe nse in one criminal action. A violation of community sup ervision require s a new and separ ate court proce eding from the orig inal proce eding resulting in defe rre d[-] adjudication community supervision.

W eatherspoon , 2016 WL 286384, at *2 ; see Diaz , 2016 WL 1084398, at *7 n.5. We pointed out
t h at t h e statutes authorizing the imposit ion of court costs upon conviction explain that a convic t ion occur s when adjudication of g uilt is defe rre d or when a sentenc e is imposed. Diaz , 2016 WL 1084398, at *8; W eatherspoon , 2016 WL 286384, at *2; see, e.g. , Tex. Code Crim. Proc.
arts. 102.005(b), 102.0169(b) , 1 0 2

. 017(c) , 102.020(c) ; Tex. L oc. Gov’t Code § 133.101. I n addition,
g iven that costs are intended as a nonpunitive rec oupment of expenditures in connec tion with the

7trial of a case , we conclude d that imposing costs fo r ev en t s occur ring afte r adjudication was defe rre d “make s sense as a tool to rec oup the costs of judicial resour ces” that wer e expended in the
proce ss of adjudicating a defe ndant g uilty and re voking his community supervision. Diaz , 201 6 W L 1084398, at *8. Thus, we have conclude d—and conclude ag ain today —that article 102.073(a) does not prohibit the assessment of costs for both the defe rre d-adjudication proce eding and the a djudication-of- g uilt procee ding.

I n this case , two plea proce eding s occur red: the first wh en t h e trial court defe rre d adjudication of appellant’ s g uilt and order ed community s u p er v i s i on afte r acc epting appellant’ s g uilty plea; the second when the trial court adjudicate d appellant’ s g uilt upon acc eptanc e of his plea of true to the a lleg ation in the motion to adjudicate

. Be cause the trial court held two sepa rate plea
proce eding s with respe ct to appellant’ s convictions, see Tex. L oc. Gov’t Code § 133.101 (def ining when “a person is considere d to have been convicted” to include both if sentenc e is imposed as well as i f person rec eives defer red adjudication), the court properly assessed cos t s at the conclusion of both proc ee d ings. See Simmons , 2018 WL 3028064, at *3; Diaz , 2016 WL 1084398, at *8; W eatherspoon , 2016 WL 286384, at *2; cf. Ex parte Pharr , 897 S.W .2d 795, 796 (Tex. Crim. App. 1995) (holding that in Penal Code Section 3.03 “[t] he Texas L eg islature intended a ‘sing le criminal action’ to re fer

to a sing le trial or plea

proce eding ”). Concerning the assessment of the sheriff ’s fee s, appellant arg ues that these fee s wer e improperly assessed beca

use they wer e not authorized by statute. Although appellant acknow ledg es that article 102.011 of t he C ode of Criminal Procedur e authoriz es t he pay ment of various fee s for the service s of peac e office rs, see Tex. Code Crim. Proc. art. 102.011, he urg es that nothing in that

8provision authorized the imposit ion of the $25.00 fee s in this case beca use no specific service listed in the s tatute calls for a $25.00 fe e an d, he asserts, a bil l of costs may not char g e for a service not expressly provided by law. We acknow ledg e that the bill of costs does not provide an itemiz ed

acc ount of how the $25.00 amount was deter mined. Howeve r, ap p el l an t has not pointed to any authority requiring that ty pe of itemiz ation. Cf. id. art. 103.009 (re quiring “[e]ach cler k of a court, county judge , justice of the peac e, sheriff , constable, and marshal shall keep a fee rec ord”) ; Penright

v. State , 477 S.W .3d 494, 501 (Tex. App.—Houst o n [ 1 s t Di st.] 2015), judgment affirmed as modified , 537 S.W .3d 916 (Tex. Crim. App. 2017) (explaining that “Sheriff ’s fee rec ord” need not be included in a

ppellate r ecor d). Fur ther, as this Court has previously noted, althoug h the statutory provision rela ting
to fee s for the service s of peac e office rs does not specific ally list a $25.00 fee , it does authorize the imposit ion of fees for

service s of peace office rs rang ing from $5.00 to $50.00 and also authorizes
t h e imposit ion of more than one ty pe of fee as well as the imposit ion of some of the fee s for particula r service s more than once. See W hary v. State , No. 03-16-00737- CR, 2017 WL 2333266,
at *3 (Tex. App.—Austin May 24, 2017, no pet.) (mem. op., not desig nated for publication); Diaz , 2016 WL 1084398, at *8; Lo ve v. State , No. 03-15-00462- CR, 2016 WL 1183676, at *2 (Tex. App.—Austin Mar. 22, 2016, no pet.) (mem. op., not desig nated for publication); see also Tex. Code Crim. Proc. art. 102.011. Once ag ain, in lig ht of the fac t tha t the provision a

uthorizes va

rious fee s for service s of peac e office rs an d al l o ws for the imposit ion of more than one fee and g iven that
t h e fees at issue in this case g ener ally fall within the rang e of permissible fee s outli n ed i n t h at

9provision, we cannot conclude that the district court err ed by imposing the sheriff ’s fee s. See W

hary , 2017 WL 2333266, at *3; Diaz , 2016 WL 1084398, at *8; Love , 2016 WL 1183676, at *2.

I n ad dition, for the rea sons previously stated, see discussion supra pp. 7–8, we further conclude that the trial court did n o t er r when it imposed the sheriff ’s fee s for both the adjudication-of

-g uilt proce edin g an d t he defe rre d-adjudication proce eding

. See Diaz , 2016 WL 1084398, at *8; cf. Tex. Code Crim. Proc. art. 102.011(j) (stating that in statute g overning fee s for service s of peac e office rs, “convic tion” has meaning assig ned by L ocal Gover nment Code provision, which includes de fer red a djudication). Appellant also challeng es the two $133.00 fee s assessed pursuant to the consolidated fee statute, see Tex. L oc. Gov’t Code § 133.102(a) (1), asser ting that one of the fee s should be deleted beca use the fee cannot be assessed twice under article 102.073(a) and that the rema ining fee should be reduc ed to $119.93 beca use the Court of Criminal Appea ls found portions of the consolidated fee
st at u t e t o b e fac ially unconstitutional. See Salinas v. State , 523 S.W .3d 103, 110 (Tex. Crim. App. 2017). For the rea sons previously stated, see d i s cu s s ion supra pp. 7–8, we conclude that the trial court did not err whe n i t imposed the consolidated court costs fee for both the adjudication-of

-g uilt proce eding and the defe rre d-adjudication pro ce ed i n g . See Simmons , 2018 WL 3028064, at *3; Diaz , 2016 WL 1084398, at *8; W eatherspoon , 2016 WL 286384, at *2. Reg arding the i s s u e of fee reduc tion, in Salinas v. State , the Court of Criminal Appea ls deter

mined that two of the acc ounts listed in section 133.102(e) , which allocate d the court
costs rec eived under the consolidated fee statute, violated the separ ation-of- power s claus e o f t h e

10Texas Constit ution beca use they wer e not rela ted to a leg itimate criminal-justice purpose and wer e instead more acc urate ly char acte rized as a tax. See Salinas , 523 S.W .3d at 108–110 (striking down subsections (e) (1) and (e) (6), which allocate d portions of the $133.00 court cost to c omprehe nsive reha bilitation and abused children’ s counseling ). The reme dy in Salinas was to modify the judgme nt
to r educe the $133.00 consolidated c ourt cost to $119.93 to de lete the unconstitutional portions of the fe e. Id. at 110. That re duction of the fe e is what a ppellant advoc ates he re. Howeve r, the S

a li n a s c o u r t li mi te d th e r e tr o a ctive application of its decision to cer tain defe ndants: (1) those who had raised the appropr iate claim i n a p etition for discretionar y revie w filed befor e, and still pending on, the date of the court’s opinion, and (2) those whose trials end afte r the mandate in Sa l i n a s i s s u ed

. Id. at 111–13. The court further stated that if the L eg islature redire cted the funds in subsections (e) (1) and (e) (6) to a leg itimate criminal-justice purpose, th e n tr ia l
courts could continue to collect the entire consolidated court cost. Id. at 113 n.54. The court noted that, if the L eg islature amende d the statute befor e mandate in Salinas issued, “the only case s that will be aff ecte d by this opinion will be the few that are now pending in this Court and are appropr iate for relief .” Id. The L eg islature amende d the statute as advised by the court—it deleted former subsections (e) (1) and (e) (6) and redire cted those fu n d s to the fair defe nse acc ount in former subsection (e) (14) (now subsection (e) (12))

. See Act of May 18, 2017, 85th L eg ., R.S., ch. 966, § 1, 2017 Tex. Gen. L aws 463 (codifie d at Tex. L oc. Gov’t Code § 133.102(e) ). That amendment went into eff ect on J une 15, 2017, there by prec eding the mandate in Salinas that issued on J une 30, 2017. Id. ; see Garrett v. Stat e , No

. 03-17-00031- CR, 2017 WL 3897324, at *1–2 (Tex. App.—Austin

11Aug

. 31, 2017, no pet.) (mem. op., not desig nated for publication) (obser ving that eff

ective date of amendment prec eded date of Salinas mandate and noting impact on imposit ion of consolidated court
cost fee pursuant to amende d consolidated fee statute); Hu r t ado v. State , No. 02-16-00436- CR, 2017 WL 3188434, at *1 (Tex. App.—For t Worth J uly 27, 2017, no pet.) (mem. op., not desig nated for publica tion) (same)

.

Her e, the bill of costs shows that the $133 consolidated court cost fee s wer e assessed
upon appellant’ s adjudication of g uilt on Dec ember 7, 2017—afte r the eff ective date of the amende d statute, which prec eded the issuance of the Salinas mandat e. Be cause the L eg islature timely 4 amende d the consolidated fee statut e, trial courts may continue to impose the entire consolidated
court cost fee as authorized under section 133.102(a)

. See Salinas , 523 S

. W

. 3 d at 113 n.54. Conse q u en t l y , t h e court’s holding in Salinas does not apply to the present case . See id. The trial court prope rly

imposed the $133.00 consolidated c ourt cost fe es. 5

T h e bill of costs also shows that the $133 consolidated court cost fee assessed 4 upon appellant’ s place ment on defe rre d-adjudication community supervision was assessed on Aug ust 8, 2017—likewise afte r the eff ective date of the am ended statute, which prec eded the issuance of

the Salinas mandate. I n its response to appellant’ s challeng e to the $1 3 3

. 0 0 co n solidated court cost fee s, the 5 State asser

ts tha t e ach consolidated court costs fee (the one assessed at the defe rra l of adjudication and the one assessed upon adjudication of g uilt) should be reduc ed to $119.93 beca use appellant’ s case “wa s conclude d afte r the mandate was issued in Salinas ” and, acc ording to the State, the trial court e rre d in assessing the full amount of $133.00. Whil e the State’s confe ssion of err or in a criminal case is signific ant, it is not conclusive nor is it binding on this Court; we must make an independe nt examination of the merits of any claim of er ro r ra i s ed on appea l. See Saldano v. State , 70 S.W .3d 873, 884 (Tex. Crim. App. 2002) (“A confe ssion of err or by the prosec utor in a criminal case is important, but not conclusive, in deciding an appea l.”). We have done so here and note th at t h e State failed to take into acc ount the timely leg i s l at i v e amendment to the consoli dated fee statute, which allows trial courts to impose the full amount of the fe e. 12I n sum, appellant cannot, in this appea l, challeng e the court costs assessed at the time

he was p l aced on defe rre d-adjudication community supervision. As for the costs assessed upon ad j udication of g uilt, article 102.073(a) does not prohibit the assessment of costs for both t h e defe rre d-adjudi cation proce eding and the adjudication-of -g uilt proce eding

. Thus, appellant’ s challeng e to costs assessed at the time of adjudication of g uilt on the basis that the costs wer e alre ady assessed at the point of being place d upon defe rre d-adjudica tion community supervision is without

m er i t

. Fur

ther, all of the costs challeng ed by appellant are authorized by statute. See T ex . C o d e Crim. Proc. arts. 102.005(a) , 1 0 2

. 0 1 6 9 ( a ) , 102.017(a) , 102.0045(a) , 102.005(f) , 102.011; Tex. Gov’t Code § 51.851(d); T ex . L oc. Gov’t Code §§ 133.102(a) (1), 133.105(a) , 133.107(a)

. The statutory authority , coupled with the cert i fied bill of costs, provides a sufficie nt basis for the
costs. See Johnson , 423 S.W .3d at 390, 394–96; Diaz , 2016 WL 1084398, at * 8 ; W eatherspoon , 2016 WL 286384, at *3; Ireland , 2015 WL 4914982, at *3. For these rea sons, we conclude that the trial court proper ly assessed all o f t h e ch al l en g ed court costs. We overr ule appellant’ s first point of er ror.

Constitutional Ch allenge to Collec tion Statute

Art ic le 1 0 3

. 0 0 3 ( a ) o f th e Code of Criminal Procedur e, entitled “Collection,” provides that cer tain office rs—including , as rele vant to t h e d i scussion here , a district cler k—“may collect
money pay able under this title.” Tex. Code Crim. Proc. art. 103.003(a)

. I n his second point of err or, appellant contends that if the district cler k had discretion under article 103.003 “to decide on her own” whether to assess statutory fee s once or twice in the situation wher e a defe ndant pleads g uilty
to an offe nse and is place d on defe rre d-adjudication community supervision and later is adjudicate d
13g uilty upon violating conditions o f c o mm u n it y s u p e r v is ion, then article 103.003 is unconstitutionally
vag ue as a

pplied to appellant. A claim that a statute is unconstitutional “as applied” is a claim th at t h e statute, althoug h g ener ally constitutional, operat es unconstitutionally as to the claimant beca use of his particula r fac ts and circ umstances. State ex rel. Lykos v. F i n e , 3 3 0 S.W .3d 904, 910 (Tex. Crim. App. 2011) (orig

. proce eding ); Gillenwaters v. State , 205 S.W .3d 534, 537 (Tex. Crim. App. 2006); Ex parte Carter , 514 S.W .3d 776, 779 (Tex. App.—Austin 2017, pet. ref ’d). A statute may be valid

as applied to one set of fac ts and invalid as applied to a differ ent set of fac ts. Lykos , 330 S.W .3d at 910; Friesenhahn v. State , No. 03-16-00582- CR, 2018 WL 828959, at * 3 (T ex. App.—Austin Fe b. 9, 2018, no pet.) (me m. op., not designa ted for publication). We revie w a challeng e to the constitutionalit y of a statute de novo. Vandyk e v. State , 538 S.W .3d 561, 570 (Tex. Crim. App. 2017); Salinas v. Stat e, 464 S.W .3d 363, 366 (Tex. Crim. App. 2015). The party challeng ing the statut e normally bear s the burden of establishing its unconstitutionalit y . Vandyk e , 538 S.W .3d at 570–71; Peraza v. State , 467 S.W .3d 508, 514 (Tex. Crim. App. 2015); Ex parte Lo , 424 S.W .3d 10, 15 (Tex. Crim. App. 2013). When confr onted with

an attack on the constitutionalit y of a s t at u t e, we aff ord g reat defe renc e to the L eg islature and
presume that the statute is constitutional and that the L eg islature has not acted u n re as o nably or arbitra rily

. Vandyk

e , 538 S.W .3d at 570; Peraza , 467 S.W .3d at 5 1 4 ; Lo , 424 S.W .3d at 14–15; State v. Rosseau , 396 S.W .3d 550, 557 (Tex. Crim. Ap p . 2013); see Tex. Gov’t Code § 311.021 (stating that courts pre sume “c ompliance” with Texas and United States Constit utions).

14Appellant conditions his constitutional challeng e to article 103.003( a ) o n the premise

that the Be ll County District Clerk had discretion under the statute to decide whether to assess costs
ag ainst him. Howeve r, article 103.003(a) does not allow for discretionar y as s es s ment of costs by a district cler

k. First, the statute mere ly authorizes ce rt ai n g overnme nt ag ents, including a district cl er k, to “collec t money payable under this title .” See Tex. Code Crim. Proc. art. 103

. 0 0 3 (a ) (empha sis added) ; Johnson , 423 S.W .3d at 395 (“A rticle 103.003 authorizes desig nated g overnme nt
ag ents to collect only money that is pa y able.” ). Thus, by the express terms of the statute, a district cler k has authority to collect—not assess—on l y those fee s that are pay able under the law. See Johnson , 423 S.W .3d at 395 (“A rticle 103.001 appea rs to act as a prohibition on the ability of desig nated state ag ents from collecting nonpay able, but assessed, court costs.”); see also Tex. Code Crim. Proc. art. 103.001(b) (cost is pay able when “a written bill is produce d or rea dy to be produce d, containing the items of cost”)

.

Moreove r, the statute r equiring court c osts to be assessed a g ainst a def endant upon conviction provides that the judgme nt “shall adjudg e the costs ag ainst the defe ndant, and order the collection there of

as in other c ases.” Tex. Code Crim. Proc. art. 42.16 (empha sis a dded); see also id. art. 42.15 (whe n punishment is fine only , “judg ment shall be that the defe ndant pay the amount of the fine and all costs to the state”)

. The judgme nt “ is the written decla ration of the court signe d by the trial judge .” Id. art. 42.01, § 1. I t is the trial judge —not the cler k of the court—who assesses or imposes court c osts.

We conclude that the district cler k does not have discretion under article 103.003(a)

15to assess any costs or fee s but can only collect those costs previously assessed by the trial court that

are authorized by statute, see Johnson , 423 S.W .3d at 389 (stating “only statutorily authorized costs
may be assessed ag ainst a criminal defe ndant”) ; Tex. Code Crim. Proc. art. 103.002 (providing that “[a]n officer

may not impose a cost for a

service not perfor

med or for a service for whic h a cost is
not expressly provided by law”) , and then only upon a written bill itemiz ing the costs, see Tex. Code Crim. Proc. art. 103.001(b). As this Court has previously held, and holds ag ain today , imposing two
sets of court costs in this situation—for separ ate proce eding s wher e a defe ndant pleads g uilty to an offe nse and is place d on defe rre d-adjudication community supervision and later is adjudicate d g uilty
upon violating conditions o f community supervision—is authorized by statute. See Diaz , 2016 WL 1084398, at *7 n.5; W eatherspoon , 2016 WL 286384, at *2. Be cause a district cler

k does not have the discretion to assess fee s under the collection statute, we reje ct appellant’ s arg ument that article 103.003(a) is unconstitutionally vag ue as applied to him. According ly , we ove rrule a ppellant’s sec ond point of err or.

CONCLUSION Having reje cted appellant’ s ch al leng es to the court costs assessed ag ainst him, we aff irm the trial cour

t’s judgme nt adjudicatingg uilt.

16__________________________________________ Melissa Goodwin, Jus tice Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field Affir med Filed: Aug ust 24, 2018 Do Not Publish

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