Opinion issued December 30, 2014

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-12-00690-CR

NO. 01-12-00691-CR

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OSMIN PERAZA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Case No. 1305438

CONCURRING & DISSENTING OPINION

I join with the Court’s conclusions that the trial court did not abuse its 

discretion in denying Appellant’s motion to withdraw his guilty pleas and that the 

judgment should be modified, striking the unsupported “Sheriff’s Fee” assessed in 
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both cases. However, I disagree with the Court’s conclusion that the “DNA Record 

Fee”1is unconstitutional.

Facial Challenge to the DNA Record Fee

Appellant argues that the statute authorizing collection of the fee is facially 

unconstitutional under the separation-of-powers clause of the Texas Constitution. 

TEX. CONST. art. II, § 1. Under that provision, a statute authorizing a court to 

collect costs “neither necessary nor incidental to the trial of a criminal case” is not 

valid. Ex parte Carson, 159 S.W.2d 126, 127 (Tex. Crim. App. 1942). Appellant 

makes only a facial challenge, which requires him to “establish that no set of 

circumstances exists under which the statute will be valid.” Santikos v. State, 836 

S.W.2d 631, 633 (Tex. Crim. App. 1992); see also State v. Rosseau, 396 S.W.3d 

550, 557 (Tex. Crim. App. 2013). In my view, Appellant has not shown that every 

application of the statue violates the Carson standard. I would, therefore, affirm the 

constitutionality of the fee. 

A. Reviewing a facial challenge 

When reviewing the constitutionality of a statute, “an appellate court must 

presume that the statute is valid and that the legislature was neither unreasonable 

nor arbitrary in enacting it.” Curry v. State, 186 S.W.3d 39, 42 (Tex. App.—

 

1

See TEX. CODE CRIM. PROC. ANN. art. 102.020(a)(1) (West Supp. 2014) (“A 

person shall pay as a cost of court: (1) $250 on conviction of an offense listed in 

Section 411.1471(a)(1), Government Code”).
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Houston [1st Dist.] 2005, no pet.) (citing Ex parte Granviel, 561 S.W.2d 503, 511 

(Tex. Crim. App. 1978)). A reviewing court must make every reasonable 

presumption in favor of the statute’s constitutionality, unless the contrary is clearly 

shown. Granviel, 561 S.W.2d at 511; see TEX. GOV’T CODE ANN. § 311.021 (West 

2013) (noting that courts presume “compliance” with Texas and United States 

Constitutions).

To prevail, the party asserting a facial challenge “must establish that the 

statute always operates unconstitutionally in all possible circumstances.” Rosseau, 

396 S.W.3d at 557. When construing a statute, courts consider, among other 

factors, the object sought to be attained by the legislation, laws on the same or 

similar subjects, and the consequences of a particular construction. TEX. GOV’T 

CODE ANN. § 311.023 (West 2013); see State v. Neesley, 239 S.W.3d 780, 784 

(Tex. Crim. App. 2007); Nguyen v. State, 1 S.W.3d 694, 696–97 (Tex. Crim. App. 

1999); see also Dowthitt v. State, 931 S.W.2d 244, 258 (Tex. Crim. App. 1996). If 

a statute can be reasonably interpreted in a manner that does not offend the 

constitution, a reviewing court must overrule a facial challenge to the statute’s 

constitutionality. Curry, 186 S.W.3d at 42.

B. Constitutionality of the DNA Record Fee benefiting the criminal-justice 

planning account 

Appellant argues that the DNA Record Fee unconstitutionally benefits the 

criminal-justice planning account because the account is “too remote” to be 
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considered a necessary or incidental cost of prosecuting a criminal case as required 

under Carson. 159 S.W.2d at 127 (concluding that law library fee is remote and 

unconstitutional). The Court agrees and cites several possible uses of money from 

the criminal-justice planning account that are not related to the prosecution of a 

criminal case. This approach is contrary to the standard that applies to claims that a 

statute is facially unconstitutional because (1) it diminishes the challenger’s burden 

to demonstrate that all—not some—applications of a statute are unconstitutional; 

and (2) it runs afoul of precedent by favoring an unconstitutional reading over a 

constitutional reading when construing statutes. I would construe the criminaljustice planning account in its statutory context, situated among related statutes, 

and conclude that Appellant has not demonstrated that all applications of the 

statute are unconstitutional under the Carson standard.

The Department of Public Safety (“DPS”) is required to collect a DNA 

specimen from every person charged with certain categories of crimes, including 

the crime involved here—aggravated sexual assault of a child under 14 years of 

age—and to create a database cataloging the DNA specimens. TEX. GOV’T CODE 

ANN. § 411.142 (West 2012) (directing DPS to maintain “computerized database 

that serves as the central depository in the state for DNA records” that is 

compatible with FBI’s national DNA identification index system); id. § 411.1471 

(West 2012) (requiring collection of DNA specimens from people charged with or 
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convicted of certain crimes, including aggravated sexual assault of child under 14 

years of age); TEX. PENAL CODE ANN. § 22.021 (West Supp. 2014) (defining 

aggravated sexual assault of child under 14 years of age). The criminal-justice 

planning account allocates funds toward the collection and management of this 

statewide criminal DNA database. See TEX. CODE CRIM. PROC. ANN. art. 102.056 

(West Supp. 2014). Specifically, subsection (e) of article 102.056 directs the

Legislature to

determine and appropriate the necessary amount from the criminal 

justice planning account to the criminal justice division of the 

governor’s office for reimbursement in the form of grants to the 

Department of Public Safety of the State of Texas and other law 

enforcement agencies for expenses incurred in performing duties 

imposed on those agencies under Section 411.1471 or Subchapter B1, Chapter 420, Government Code, as applicable.

Id. 

After looking outside the record to press releases and web sites, the Court 

insists that “it cannot be assumed that DPS was automatically reimbursed by virtue 

of the ‘DNA Record Fee’ for any expenses associated with the collection of 

[Appellant’s] sample” and therefore the fee is an unconstitutional tax. This 

conclusion does not account for the remainder of subsection (e), which continues:

The criminal justice division through a grant [of money from the

criminal-justice planning account] shall reimburse the law 

enforcement agency for the costs not later than the 30th day after the 

date the certified statement is received. If the criminal justice division 

does not reimburse the law enforcement agency before the 90th day 

after the date the certified statement is received, the agency is not 
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required to perform duties imposed under Section 411.1471 or 

Subchapter B-1, Chapter 420, Government Code, as applicable, until 

the agency has been compensated for all costs for which the agency 

has submitted a certified statement under this subsection.

Id. Thus, the Court’s skepticism is unjustified given the wording of the statute 

regarding reimbursement to fund the DNA project.

The Court also insists that, even if DPS were reimbursed, the fee is 

nevertheless unconstitutional because the criminal-justice planning account funds 

other unrelated projects. Following this analysis, it would be enough for a party 

bringing a facial constitutional challenge to show that some possible applications 

of a statute are unconstitutional to justify invalidating every application of that 

statute. That is the wrong standard. See Santikos, 836 S.W.2d at 633 (“[T]he 

challenger must establish that no set of circumstances exists under which the

statute will be valid.”). While money from the criminal-justice planning account 

apparently funds other programs in addition to the DNA database, Appellant 

presents no evidence that the DNA Record Fee revenue does anything more than 

reimburse the criminal-justice planning account for its DNA-database 

expenditures. Appellant appears to concede that reimbursement for these 

expenditures would not violate Carson. I agree.

I would hold that collecting the DNA Record Fee to benefit the criminaljustice planning account is constitutional because these funds may be allocated to 

the statewide criminal DNA database. Because such an allocation would be 
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constitutional, Appellant fails to meet his burden of showing that every application 

of the statute would result in constitutional injury. See Rosseau, 396 S.W.3d at 557 

(noting moving party has burden of demonstrating statute’s unconstitutionality in 

“all its possible applications.”). Accordingly, I would conclude that Appellant has 

failed to demonstrate that the portion of the DNA Record Fee that benefits the 

criminal-justice planning account is an unconstitutional tax. 

C. Constitutionality of the DNA Record Fee benefiting the state highway 

fund

Likewise, Appellant has not demonstrated that the portion of the DNA 

Record Fee that benefits the state highway fund is facially invalid. Pursuant to 

article 102.020(h) of the Texas Code of Criminal Procedure, a portion of collected

DNA Record Fee revenue goes into the state highway fund. “[M]oney deposited to 

the state highway fund under . . . 102.020(h), Code of Criminal Procedure, may be 

used only to defray the cost of administering [subchapter G of chapter 411] and 

Section 411.0205” of the Texas Government Code. TEX. GOV’T CODE ANN. § 

411.145 (West 2012). Subchapter G governs the collection and management of 

DNA samples, including Appellant’s, by DPS. See TEX. GOV’T CODE ANN. § 

411.1471. Section 411.0205 regulates the accreditation of forensic crime 

laboratories by DPS. TEX. GOV’T CODE ANN. § 411.0205 (West 2012). Thus, under 

the Texas Government Code, the portion of the DNA Record Fee credited to the 
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state highway fund is used to defray the costs associated with collecting, storing, 

and testing DNA samples.

The Court relies on section 222.002 of the Texas Transportation Code, 

which states that money in the state highway fund not earmarked for public 

roadways “may be used for any function performed by” the Texas Department of 

Transportation (“TxDOT”). TEX. TRANSP. CODE ANN. § 222.002 (West 2011) 

(emphasis added). TxDOT does not manage DNA-sample collection, management, 

or testing. But TxDOT does not have exclusive access to the state highway fund. 

Rather, the Transportation Code simply states a general rule that TxDOT “may” 

access the fund. In contrast, the Government Code provides a specific rule that 

money from the DNA Record Fee in the state highway fund “may be used only” by 

DPS to defray the cost of administering the DNA database. TEX. GOV’T CODE 

ANN. § 411.145 (emphasis added).

When two statutes concern the same issue, the two should be read together 

as one law, and an appellate court should attempt to harmonize any conflicting 

provisions. Garrett v. State, 424 S.W.3d 624, 629 (Tex. App.—Houston [1st Dist.] 

2013, pet. ref’d). If this is not possible, specific rules prevail over general 

provisions, absent contrary legislative intent. Id.; Azeez v. State, 248 S.W.3d 182, 

192 (Tex. Crim. App. 2008). In light of these principles, I would hold that the 

statute specifically assigning DNA Record Fee revenue in the state highway fund 
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to DPS for DNA sampling and crime-lab accreditation prevails over the general 

statute relied upon by the Court.

I would further hold that paying for DNA sampling and crime-lab 

accreditation is a valid, constitutional use of the DNA Record Fee under Carson.

The trial court ordered Appellant to surrender a DNA sample as part of the 

investigation of this case. The fee is therefore “necessary or incidental” to the trial 

of Appellant’s case. See generally TEX. GOV’T CODE ANN. § 411.143(a) (West 

2012) (“The principal purpose of the DNA database is to assist a federal, state, or 

local criminal justice agency in the investigation or prosecution of sex-related 

offenses or other offenses in which biological evidence is recovered.”).

The Court concludes that the fee is an unconstitutional tax because the 

revenue could possibly benefit other activities unrelated to the statewide DNA 

database. In doing so, the Court again relies on web sites outside the record 

because Appellant has provided no record evidence of how the funds are expended 

and relieves Appellant of his burden when bringing a facial constitutional 

challenge.

Because Appellant has not demonstrated that every application of the

statutes assigning DNA Record Fee revenue to the state highway fund would be 

unconstitutional, I would conclude that Appellant did not demonstrate that the 
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portion of the DNA Record Fee that benefits the state highway fund is facially 

unconstitutional. 

Conclusion

Having determined that both portions of the DNA Record Fee—the 65% that 

benefits the criminal-justice planning account and the 35% that benefits the state 

highway fund—are sufficiently related to the prosecution of a criminal case, I 

would conclude that Appellant failed to satisfy his burden of demonstrating that 

the DNA Record Fee is facially unconstitutional. Accordingly, I respectfully 

dissent. 

Harvey Brown

Justice

Panel consists of Justices Jennings, Sharp, and Brown.

Justice Brown, concurring in part and dissenting in part.

Publish. TEX. R. APP. P. 47.2(b).