### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03

- 1 9

- 00 148

- CR

Michael Andrew Horn , Appellant

v.
The State of Texas, Appellee

FROM THE 33RD DISTRICT COURT OF LLANO COUNTY NO. CR7 580 , THE HONORAB LE J. ALLAN GARRETT, JUDGE PRESIDING

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

A jury convic ted a ppellant Mi chae l Andrew Horn of the s econd

- de gree felony

offense of aggra vated assault wi th a deadly weapon , s ee Tex. P enal C o de § § 22.01(a)(2),

.02(a)(2) , an d sentenced appellant to confinement for t wenty ye a rs in the Institutional Division of

the Texas Department of C rimina l Jus tic e

. For the foll owing reasons, w e modify the trial court ’ s
judgment of conviction to reduce the amou nt of court costs by $ 22.50 an d, a s mod ified, we

affirm the judgment of convi cti o n

.

An alysis

Appellant does not ch allenge the jury ’ s verdict s

. His s ole appellate issue

challenges 90% of the time payment fee that was assessed against him as court cost s

. 1 A s

1 T he judgment , which the trial court entered on February 26, 2019, re flects court costs in the tot al amount of $3 5 5.00 without furt her itemiz ation

, but the District Clerk ’ s bill of

co sts reflects t hat appellant had not paid any amount toward the assessed court c osts as of2

support for t his c hall enge , a ppellant cit e s this Court ’ s opinion in D u lin v. State , 583 S.W.3d 351,

353 (Tex. App.

— Austin 2019, pet

. granted )

, in which we held that t he former statut ory
provisions a uthorizing 90% of the fee

— subsectio ns (b ) and (d) of f ormer Texas Local

Govern ment Code section 133.103

— are faci ally unconstituti on al

. S e e id. ; see also former Tex.

Loc. Gov ’ t Code § 133. 103(b) ( requiring 50% of fee s collected under sub section to be sent to

comptroller for deposit “ to the c redit of the general revenue fund ” )

, (d ) ( requ iring remai nder of

fees collected under section f or depos it “ in the ge neral re venue accou nt of the county or

munic ipality ” )

. 2

T his Court held that subsections (b) and ( d) of former section 133 .10 3 were
facially u nconstitutio n al b ecause they violate d the s eparation of p owers e mbodied in the Texas

Const i tut ion by authorizing 90% of the time payment fee f or “ general rev enue not sufficient ly

related to a legitimate criminal j ustice purpose

. ” S ee Dulin

, 583 S.W .3d at 353 (quoting Johns on

v. State , 573 S.W.3d 328, 340 (Tex. App.

— Houston [ 1 4th Dist.] 2019, p et. filed)) ; see a lso Tex.

March 20, 2019 , and provides an itemization of the charged amo unts

. See Du li n v. State

, 583 S.W.3d 351, 35 2 n.2 (Tex. App.

— Austin 2019, pet

. granted ) (rejectin g State ’ s ar gum ent that constitutional ch allenge to statutory provision au thorizing time payment fee should not be reached “ because the trial court prematu rely assessed the time payment fee ” and observing th at

“ more than 30 days have now elap sed since the date of th e jud gment, and nothin g in the record before us indicate s that [defendant] has paid all of his fines and costs ” ). The bill of co sts itemizes the following charges for the time payment fee: (i) $12.50 (50%); (ii) $2.50 (10%); and (iii) $10.00 (40%).

2 Ap pe lla nt does not ch allenge f ormer s ection 133.103( c ) of the Texas L oc al Government Code , which a ddresse s the remaining 10% of the time payment fee. See Act of Jun e 1 , 200 3 , 7 8 th Leg., R.S., ch

. 209 , § 62(a) , 200 3 Tex. Gen. L aws 979, 996

– 97 ( requiri ng 1 0 % of fee s collected under section to be deposited i n gene ral fund o f county or municip al ity

“ for the purpose of im proving the efficiency of the administra tion of jus ti ce in the county or munic ipali ty ” ). Effective Ja nuary 1, 2020, the substance of sec tion 13 3.1 03 h as been amen ded and transferred to article 102.030 of the Texas Code of Criminal Procedure , bu t the former law
ap plies to this case. Se e Act of May 23, 201 9

, 86 th Leg., R.S., ch . 1352, 2019 Tex. Gen . Law s 3981 , 4 010, 40 35 ( stating that offense co mmi tted before effective date of Act is gover ned by law in effect on date that offense was comm itte d )

.3

Const. art. II, § 1 ( provid ing that no b ranch of government “ shall ex er cise any power properly

attached to either of the others , except in the instan ces herein expressly permit t ed ” ) ; Ovalle

v. Stat e , 592 S.W.3d 615

, 618 (Tex. App

. — Da llas 2020, pet. fi l ed ) ( foll owing cases with similar

reasonin g to conc lude that subs ections (b) and ( d) of f ormer section 133.103 of Texas Local

Governme nt C o de are facially unconst itu tional)

.

Bound by th is Co urt ’ s holding in Duli n , we sustain appe llant ’ s sole issue and

concl ude that the assessed c ourt c osts in th e judgment should be reduced by 90% o f the time

payment fee , which amount s to $22.50

. This C o urt has auth ority to mod ify in correct judgme nts

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

v. State , 86 5 S.W.2d 26, 27

– 28 (Tex. Crim. A pp. 1993). Thus , we mod ify th e judgment to

reduce the amount of court costs by $ 22.50

.

Conclu si on

We modify the judgment as stated above and , a s m odified

, we affi r m the t rial

court ’ s j udgment of c onviction.

__________________________________________ Melissa Goodwin , Justice

Before Ju stices Go odwin, K elly, a nd Smith

Mo di fi ed and, As Modified, Affirmed

Filed: February 24, 2021

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