No. 01-16-00768-CR

In the Court of Appeals

For the First District of Texas

At Houston

♦

No. 1487627 

In the 337th District Court

Of Harris County, Texas

♦

Ruben Lee Allen

Appellant

v.

The State of Texas

Appellee

♦

State’s Supplemental Brief for en banc Reconsideration 

♦

Clint Morgan

Assistant District Attorney

Harris County, Texas

State Bar No. 24071454

morgan_clinton@dao.hctx.net 

1201 Franklin St., Suite 600

Houston, Texas 77002

Telephone: 713 274 5826

Kim Ogg

District Attorney

Harris County, Texas

Amanda Petroff

John Wakefield

Assistant District Attorneys

Harris County, Texas

ACCEPTED

01-16-00768-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

5/24/2018 11:00 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 5/24/2018 11:00:14 AM CHRISTOPHER A. PRINE Clerk
Table of Contents

Table of Contents....................................................................1

Index of Authorities.................................................................2

Purpose of this Brief ................................................................1

Costs: Recoupment vs. Funding.................................................2

Separation of Powers and Original Meaning ................................3

Court Costs in 1879 ................................................................5

Recouped Costs Seem to Have Gone to the General Fund ............7

Conclusion ........................................................................... 11

Certificate of Compliance and Service...................................... 12

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Index of Authorities

Cases

Eldred v. Ashcroft

537 U.S. 186 (2003)..............................................................................4

Myers v. United States

272 U.S. 52 (1926)................................................................................5

Salinas v. State

523 S.W.3d 103 (Tex. Crim. App. 2017).................................................2

State v. Womack

17 Tex. 237 (1856)................................................................................6

Statutes

Oliver Cromwell Hartley

Digest of the Laws of Texas (1850) ........................................................ 5, 8

TEX. CODE CRIM. PROC. art 1099 (1879)..................................................9

TEX. CODE CRIM. PROC. art. 1018 (1925).................................................8

TEX. CODE CRIM. PROC. art. 1018 (1948).................................................8

TEX. CODE CRIM. PROC. art. 1059 (1879).................................................9

TEX. CODE CRIM. PROC. art. 1061 (1879).................................................8

TEX. CODE CRIM. PROC. art. 1091 (1895).................................................8

TEX. CODE CRIM. PROC. art. 1096 (1879).................................................9

TEX. CODE CRIM. PROC. art. 1136 (1911).................................................8

TEX. CODE CRIM. PROC. art. 956 (1856)...................................................8

TEX. REV. CIV. STAT. art. 2769 (1879)......................................................8

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Constitutional Provisions

REP. OF TEXAS CONST. OF 1836, Art. 1 § 1 ................................................3

TEX. CONST. art. II § 1 .............................................................................4

TEX. CONST. OF 1845 art. II § 1................................................................4

TEX. CONST. OF 1861 art. II § 1................................................................4

TEX. CONST. OF 1866 art. II § 1................................................................4

TEX. CONST. OF 1869 art. II § 1................................................................4

Other Sources

Federal Reserve Bank of Minneapolis

Consumer Price Index (Estimate) 1800-,

available at https://minneapolisfed.org/community/financial-andeconomic-education/cpi-calculator-information/consumer-price-index1800 5

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Purpose of this Brief

On original submission, this Court held that a court cost assessed 

against the appellant to recoup the cost of summoning witnesses was facially 

unconstitutional because the statute did not direct the money to any 

particular criminal-justice fund. In December 2017, the State’s filed a 

motion for en banc reconsideration that provided statutory citations showing 

the money for this court cost is actually directed to the officer who 

summoned the witnesses.

In April, 2018, the State’s appellate counsel had oral argument before 

a panel of the Fourteenth Court regarding the constitutionality of the court 

costs that recouped money for the clerk’s and prosecutor’s services.

1 As a 

result of that argument the State’s appellate counsel conducted additional 

research into the original meaning of the Texas constitution as it relates to 

court costs. The State’s appellate counsel has submitted that research to two 

panels of the Fourteenth Court that are presently considering the matter. As 

the issues are the same as in this case, it seems appropriate to submit that 

research to this Court as well. 

1 Alfred Moliere v. State, 14-17-00594-CR.

1

 
Costs: Recoupment vs. Funding

On original submission in Johnson v. State, ___ S.W.3d ___, No. 14-16-

00658-CR, 2018 WL 1476275, at *4 (Tex. App.—Houston [14th Dist] 

March 27, 2018, no pet. h.),

2 the Fourteenth Court hit on a very important 

question in the current spate of court-cost litigation. Texas has always 

assessed court costs against convicted defendants to recoup the 

government’s expenses from the prosecution. However, in recent decades 

Texas has also assessed court costs as funding mechanisms for various 

criminal-justice projects. Recent Court of Criminal Appeals cases, which 

require appellate courts to rummage through numerous statutes to 

determine where court-cost money goes, deal with costs that are assessed as 

funding mechanisms. Do the requirements of these recent cases extend to 

the older, recoupment court costs?

On original submission in Johnson, the Fourteenth Court answered 

this question in the affirmative. On original submission in this case, this 

Court did so as well, though it did not explicitly treat the matter as an open 

question as did the Johnson court. Both courts based their approach on the 

Court of Criminal Appeals’s most recent court-cost case, Salinas v. State, 

523 S.W.3d 103 (Tex. Crim. App. 2017). In Salinas, the court analyzed a 

2 The State has moved for rehearing in Johnson based, in part, on the research contained 

in this brief. That motion is pending. 

2

 
funding court cost, tracked down the designated fund to which money was 

supposed to go, saw that the fund no longer existed, and then declared the 

cost a “tax” that violated the separation-of-powers provision of the state 

constitution. 

The State believes the application of Salinas to recoupment court costs 

is a reasonable reading of Salinas, but it is not a required reading of Salinas. 

By its barest terms Salinas does not reach recoupment court costs. The State 

believes this Court should read Salinas in the context of the original meaning 

of the Texas Constitution’s separation-of-powers provision. A review of the 

court-cost scheme at and around the time the current Texas constitution was 

adopted shows that those Texans who drafted and ratified the constitution 

believed it acceptable for courts to 1) recoup from a convicted defendant the 

costs incurred in prosecuting him, and 2) deposit the money in an 

unrestricted account.

Separation of Powers and Original Meaning

The current separation-of-powers provision has appeared in the same 

location of every Texas constitution since statehood,3 remaining unchanged 

since 1845:

3 The constitution of the Republic contained a shorter separation of powers provision: 

“The powers of this Government shall be divided into three departments, viz: Legislative, 

3

 
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; see TEX. CONST. OF 1845 art. II § 1; TEX. CONST.

OF 1861 art. II § 1; TEX. CONST. OF 1866 art. II § 1; TEX. CONST. OF 1869

art. II § 1.

4

The State believes that, when looking to give this section of the 

constitution the effect its drafters and ratifiers intended, it makes sense to 

look at the laws of that time period, as those laws are likely to reflect what 

the drafters and ratifiers believed the constitution allowed. Cf. Eldred v. 

Ashcroft, 537 U.S. 186, 213 (2003) (federal Supreme Court “has repeatedly 

laid down the principle that a contemporaneous legislative exposition of the 

Constitution when the founders of our Government and framers of our 

Constitution were actively participating in public affairs, acquiesced in for a 

Executive and Judicial, which shall remain forever separate and distinct.” REP. OF TEXAS 

CONST. OF 1836, Art. 1 § 1. 

4 The University of Texas at Austin’s Tarleton Law Library has a convenient archive of all 

Texas constitutions available at https://tarltonapps.law.utexas.edu/constitutions/ (last 

accessed May 24, 2018). 

4

 
long term of years, fixes the construction to be given [the Constitution's] 

provisions.”) (quoting Myers v. United States, 272 U.S. 52, 175 (1926)). This 

should be particularly true where constitutional provisions and statutes kept 

being readopted over the course of decades.

Court Costs in 1879

Both in the Republic and in the early days of statehood, most of the 

public servants involved in a criminal prosecution were paid on a fee basis 

rather than with a salary. See, e.g., Oliver Cromwell Hartley, Digest of the 

Laws of Texas (1850) (hereinafter “Hartley), Art. 1358 (1848 law providing 

that district attorneys be paid $20 for every felony conviction, $15 for every 

gambling conviction, and $10 for all other convictions, 5 “which fees shall be 

taxed in the bill of costs against the defendant; but in no case shall be paid 

by the State.”). The Congress, and, later, the Legislature passed laws 

requiring convicted defendants (except in capital cases) to reimburse the 

government for any costs it had paid during the proceedings. Hartley, Arts. 

5 The Minneapolis Federal Reserve Bank has estimates of the consumer price index going 

back to 1800. See Federal Reserve Bank of Minneapolis, Consumer Price Index (Estimate) 

1800-, available at https://minneapolisfed.org/community/financial-and-economiceducation/cpi-calculator-information/consumer-price-index-1800 (last accessed May 24, 

2018). Though it is only an estimate, converting 1848 dollars to 2017 dollars requires 

multiplying the former by 28.2. At the time, the costs accessed against the defendant were 

meant to cover essentially the entire cost of the prosecution. Today’s fees — e.g. a $40 

jury fee, where other statutes require each juror to be paid $40 per day — do not come 

remotely close to the actual costs. 

5

 
400 (1836 law requiring as much), 1371 (1848 law requiring as much). The 

First Congress explicitly provided for imprisonment for failure to pay these 

fees, unless it “appear[ed] to the court that the person so committed hath no 

estate or means to pay such fine and costs,” in which case the court was to 

discharge the defendant and the debt. Hartley, Art. 401; see State v. Womack, 

17 Tex. 237, 239 (1856) (noting in passing that power of judge to order 

convicted misdemeanant imprisoned until $5 jury fee was paid “cannot be 

questioned”). 

Beginning with the first codification in 1856, and running until the 

most recent major revision in 1965, the Code of Criminal Procedure 

established three categories of court costs: Those paid by the state (i.e. the 

state government in Austin), those paid by the county, and those paid by the 

defendant. As often happens, these code sections started as very simple, but 

grew more complex as the years went on. Here, the State will discuss the 

version in the 1879 Code, which most closely reflects the laws at the time 

the current constitution was adopted. These sections were very similar to 

those in the 1856 Code.

The state was responsible for paying the attorney general for each 

affirmed appeal and habeas case, the clerk of the appellate court for each 

appeal, the district or county attorney for each conviction, and several fees to 

6
the sheriff related to summoning witnesses and jurors and conveying 

prisoners. TEX. CODE CRIM. PROC. arts. 1049-1061 (1879).6 The county 

was responsible for paying for the upkeep of prisoners, paying and 

supporting jurors (grand and petit), paying the county judge for any criminal 

cases he tried, and paying for the costs of inquests on dead bodies. TEX.

CODE CRIM. PROC. art. 1062-86 (1879). The defendant was responsible for 

paying the attorney general and clerk of the court of appeals for each 

affirmed or dismissed appeal, paying the prosecutor’s fee, paying the district 

clerk for various acts (e.g., twenty-five cents for docketing the case), paying 

the sheriff for various acts (e.g., fifty cents for summoning a witness, and one 

dollar for serving an arrest warrant), paying various fees to justices of the 

peace, mayors, and recorders who tried criminal cases, paying a jury fee, and 

paying fees to witnesses ($1.50 per day of testimony and 6 cents per mile 

travelled to court). TEX. CODE CRIM. PROC. art. 1087-1111 (1879).

Recouped Costs Seem to Have Gone to the General Fund

Importantly, beginning in 1856 and running through the most recent 

major revision in 1965, the Code provided that, upon conviction, any fees 

6 The code revisions of 1879, 1895, 1911, 1925, and 1948 are available from the State 

Law Library’s website: https://www.sll.texas.gov/library-resources/collections/ historicaltexas-statutes/. The Legislative Reference Library of Texas has pdf copies of the 1856 

Penal Code and Code of Criminal Procedure (i.e. “the Old Codes”): 

http://www.lrl.state.tx.us/collections/ oldcodes.cfm

7

 
paid by the state were to be charged against the defendant as part of the bill 

of costs. The Code never directed any of the recouped money to a particular 

fund, but instead stated merely that it be “paid by the officer collecting [the 

costs] into the Treasury of the State.” TEX. CODE CRIM. PROC. art. 956 

(1856); see TEX. CODE CRIM. PROC. art. 1061 (1879) (“shall be paid into 

the treasury of the state”); TEX. CODE CRIM. PROC. art. 1091 (1895) (“shall 

be paid into the treasury of the state”); TEX. CODE CRIM. PROC. art. 1136 

(1911) (“shall be paid into the treasury of the state”); TEX. CODE CRIM.

PROC. art. 1018 (1925) (“shall be paid into the State Treasury”); TEX. CODE 

CRIM. PROC. art. 1018 (1948) (“shall be paid into the State Treasury”).

Though the State Treasurer was required to keep track of the amount 

of revenue derived from various sources, it appears that, at least in the midnineteenth century, all money received into the treasury was put into a single 

account. See Hartley, Art. 2905 (1846 law stating treasurer must keep single 

account “in the name of the State of Texas, in which he shall enter the 

amounts of all moneys, securities, and other property in the Treasury, and 

which may at any time be received by him”); TEX. REV. CIV. STAT. art. 2769 

(1879) (same). In the section describing how the Comptroller was to make 

payment on claims from officers, the Code states that the funds come out of 

a particular “appropriation” from the Legislature, rather than a particular 

8
fund, implying that the intake of money from court costs was not directly 

tied to the actual expenditures. TEX. CODE CRIM. PROC. art. 1059 (1879).

Though most of the recoupment court costs went to the state, one 

court cost in the 1879 Code functioned as little more than a general tax. For 

convictions in justices’, mayors’, or recorders’ courts, defendants were to pay 

$10 to “the attorney who represents the state.” TEX. CODE CRIM. PROC. art. 

1096 (1879). A later section provided, though, that in cases where that 

attorney “has taken no action,” the attorney would collect no fee but “a fee 

of five dollars shall be taxed, for the benefit of the county, instead thereof.” 

TEX. CODE CRIM. PROC. art 1099 (1879). 

The State can find no cases litigating the legality of these costs during 

this time period. If the question is, “During the period in which the Texas 

constitution was drafted and adopted, did the Legislature and people of 

Texas believe that the separation-of-powers provision allowed for the 

assessment of court costs to recoup money spent on the defendant’s case?”, 

the answer is a definite “yes.” If the question is, “During that period did the 

Legislature and people of Texas believe that money recouped via court costs 

needed to be specifically earmarked for a criminal justice purposes?”, the 

answer is: “Apparently not.”

9
Salinas, by its bare terms, does not apply to recoupment costs. 

Applying that case’s requirements to recoupment court costs would conflict 

with how those Texans who drafted and ratified the constitution believed 

court costs should work. This Court should respect that historical 

understanding and not apply Salinas to recoupment costs. 

10
Conclusion

The State asks this Court to grant rehearing and uphold the witness 

summoning fee the appellant is challenging. 

KIM OGG

District Attorney

Harris County, Texas

/s/ C.A. Morgan

CLINT MORGAN

Assistant District Attorney

Harris County, Texas

1310 Prairie, Suite 500

Houston, Texas 77002

Telephone: 713 274 5826

Texas Bar No. 24071454

11
Certificate of Compliance and Service

I certify that, according to Microsoft Word, the portion of this brief for 

which Rule of Appellate Procedure 9.4(i)(1) requires a word count contains 

2,172 words.

I also certify that I have requested that efile.txcourts.gov electronically 

serve a copy of this brief to:

Nicholas Mensch

nicholas.mensch@pdo.hctx.net

/s/ C.A. Morgan

CLINT MORGAN

Assistant District Attorney

Harris County, Texas

1310 Prairie, Suite 500

Houston, Texas 77002

Telephone: 713 274 5826

Texas Bar No. 24071454

Date: May 24, 2018

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