TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00148-CR

Michael Andrew Horn, Appellant

v.

The State of Texas, Appellee

FROM THE 33RD DISTRICT COURT OF LLANO COUNTY

NO. CR7580, THE HONORABLE J. ALLAN GARRETT, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant Michael Andrew Horn of the second-degree felony

offense of aggravated assault with a deadly weapon, see Tex. Penal Code §§ 22.01(a)(2), 

.02(a)(2), and sentenced appellant to confinement for twenty years in the Institutional Division of 

the Texas Department of Criminal Justice. For the following reasons, we modify the trial court’s 

judgment of conviction to reduce the amount of court costs by $22.50 and, as modified, we 

affirm the judgment of conviction.

Analysis

Appellant does not challenge the jury’s verdicts. His sole appellate issue

challenges 90% of the time payment fee that was assessed against him as court costs.

1 As 

1 The judgment, which the trial court entered on February 26, 2019, reflects court costs 

in the total amount of $355.00 without further itemization, but the District Clerk’s bill of 

costs reflects that appellant had not paid any amount toward the assessed court costs as of 
2

support for this challenge, appellant cites this Court’s opinion in Dulin v. State, 583 S.W.3d 351, 

353 (Tex. App.—Austin 2019, pet. granted), in which we held that the former statutory 

provisions authorizing 90% of the fee—subsections (b) and (d) of former Texas Local 

Government Code section 133.103—are facially unconstitutional. See id.; see also former Tex. 

Loc. Gov’t Code § 133.103(b) (requiring 50% of fees collected under subsection to be sent to 

comptroller for deposit “to the credit of the general revenue fund”), (d) (requiring remainder of 

fees collected under section for deposit “in the general revenue account of the county or 

municipality”).

2

This Court held that subsections (b) and (d) of former section 133.103 were 

facially unconstitutional because they violated the separation of powers embodied in the Texas 

Constitution by authorizing 90% of the time payment fee for “general revenue not sufficiently 

related to a legitimate criminal justice purpose.” See Dulin, 583 S.W.3d at 353 (quoting Johnson 

v. State, 573 S.W.3d 328, 340 (Tex. App.—Houston [14th Dist.] 2019, pet. filed)); see also Tex. 

March 20, 2019, and provides an itemization of the charged amounts. See Dulin v. State, 

583 S.W.3d 351, 352 n.2 (Tex. App.—Austin 2019, pet. granted) (rejecting State’s argument that 

constitutional challenge to statutory provision authorizing time payment fee should not be 

reached “because the trial court prematurely assessed the time payment fee” and observing that 

“more than 30 days have now elapsed since the date of the judgment, and nothing in the record 

before us indicates that [defendant] has paid all of his fines and costs”). The bill of costs 

itemizes the following charges for the time payment fee: (i) $12.50 (50%); (ii) $2.50 (10%); and 

(iii) $10.00 (40%). 

2 Appellant does not challenge former section 133.103(c) of the Texas Local 

Government Code, which addresses the remaining 10% of the time payment fee. See Act of 

June 1, 2003, 78th Leg., R.S., ch. 209, § 62(a), 2003 Tex. Gen. Laws 979, 996–97 (requiring 

10% of fees collected under section to be deposited in general fund of county or municipality 

“for the purpose of improving the efficiency of the administration of justice in the county or 

municipality”). Effective January 1, 2020, the substance of section 133.103 has been amended 

and transferred to article 102.030 of the Texas Code of Criminal Procedure, but the former law 

applies to this case. See Act of May 23, 2019, 86th Leg., R.S., ch. 1352, 2019 Tex. Gen. Laws

3981, 4010, 4035 (stating that offense committed before effective date of Act is governed by law 

in effect on date that offense was committed).
3

Const. art. II, § 1 (providing that no branch of government “shall exercise any power properly 

attached to either of the others, except in the instances herein expressly permitted”); Ovalle 

v. State, 592 S.W.3d 615, 618 (Tex. App.—Dallas 2020, pet. filed) (following cases with similar 

reasoning to conclude that subsections (b) and (d) of former section 133.103 of Texas Local 

Government Code are facially unconstitutional).

Bound by this Court’s holding in Dulin, we sustain appellant’s sole issue and 

conclude that the assessed court costs in the judgment should be reduced by 90% of the time 

payment fee, which amounts to $22.50. This Court has authority to modify incorrect judgments 

when the necessary information is available to do so. See Tex. R. App. P. 43.2(b); Bigley 

v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Thus, we modify the judgment to 

reduce the amount of court costs by $22.50.

Conclusion

We modify the judgment as stated above and, as modified, we affirm the trial 

court’s judgment of conviction.

__________________________________________

Melissa Goodwin, Justice

Before Justices Goodwin, Kelly, and Smith

Modified and, As Modified, Affirmed

Filed: February 24, 2021

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