Opinion issued September 29, 2015

In The 

## Court of Appeals For The 

## First District of Texas

NO. 01
- 12
- 00 6 4 7
- CR

CARLTON CHARLES PENR IGHT , Appellant V. THE STATE OF TEXAS , Appellee
On Appeal from the 174 th District Court Harris County, Texas Trial Court Cause No. 1247950

OPINION The State indicted Carlton Charles Penright on the charg e of aggravated sexual assault, and a jury found him guilty of the less er offense of sexual assault

. The jury sentenced Penright to 15 years in prison , and t he trial court’s judgment2 assessed court costs in the amount of $534

. The trial court later entered a judgment nunc pro tunc reducing the amount of costs assessed to $484 , which
includes a $133 consolidated court cost authorized by Local Government Code section 133.102 and a $15 Sheriff’s fee. In three issues, Penright contends that (1) the provision of the Local Government Code that authorizes the assessment of
the $133 consolidated court cost is unconstitutional, (2) there is insufficient evidence to support the assessment of the $15 Sheriff’s fee, and (3) the trial court abused its discretion by setting but then failing to hold a hearing on Penright’s motion for new trial and motion in arrest of judgment. We affirm. Constitutionality of Local Government Code S ection 133.102 According to Penright, the $133 consolidated court cost authorized by Local Government Code section 133.102 violates the separation of powers clause of the
Texas Constitution because it is a “tax” collected by the judiciary to benefit accounts that are neither necessary nor incidental to the trial of a criminal case. See
T EX
. L OC
. G OV ’ T C ODE A NN
. § 133.102 (West Supp. 2014). A. Standard of Review “A facial challenge i s an attack on a statute itself as opposed to a particular application.” City of Los Angeles v. Patel , 135 S. Ct. 2443, 2449 (2015). The party challenging the statute bears the burden of establishing the statute’s unconstitutionality. State v. Rosseau , 396 S.W.3d 550, 557 (Tex. Crim. App.3 2013)

. To successfully mount a facial challenge to a statute, that party must establish that no set of circumstances exist s under which that statute would be valid. Peraza v. State , N os. PD

- 0100

- 15 & PD

- 0101

- 15,

-- S. W. 3d

- - , 2015 WL 3988926, at *4 (Tex. Crim. App. July 1, 2015) ; see Santikos v. State , 836 S.W.2d
6 31, 633 (Tex. Crim. App. 1992) (“ A facial challenge to a statute is the most difficult challenge to mount successfully because the challenger must establish that no set of circumstances exists under which the statute will be valid. ”)

. When reviewing a constitutional challenge, we 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.

— Houston [1st Dist.] 2005, no pet.); see Rosseau , 396 S.W.3d at 557 ; see also State ex. r el. Lykos v. Fine , 330 S.W.3d 904, 908

– 9 (Tex. Crim. App. 2011) (same)

. A reviewing court must make every reasonable presumption in favor of the statute’s constitutionality, unless the contrary is shown. Ex parte Granviel , 561 S.W.2d 503, 511 (Tex. Crim. App. 1978)

. B. Applicable Law
S ection 133.102(a)(1) of the Texas Local Government Code mandates that “[ a ] person convicted of a n offense shall pay as a court cost, in addition to all other
costs : $133 on conviction of a felony .” T EX
. L OC
. G OV ’ T C ODE A NN
.4 § 133.102(a)(1). The Local Government Code requires t he comptroller to allocate the proceeds collected among the following fourteen account s and funds : (1) abused children’s counseling; (2) crime stoppers assistance; (3) breath alcohol testing; (4) Bill Blackwood Law Enforcement Management Institute; (5) law enforcement officers standards and education; (6) com prehensive rehabilitation; (7) law enforcement and custodial officer supplemental retirement fund ; 1 (8) criminal justice planning; (9) an account in the state treasury to be used only for the establishment and operation of the Center for the Stud y and Prevention of Juvenile Crime and Delinquency at Prairie View A & M University; (10) compensation to victims of crime fund; (11) emergency radio infrastructure account; (12) judicial and court personnel training fund;

1 Effective September 1, 2013, subsection (7) was amended from “operator’s and chauffeur’s license” to “law enforcement and custodial officer supplemental retirement fund.” See Act of May 29, 2011, 82nd Leg., R.S., ch. 1249, § 13(b), 2011 Tex. Gen. Laws 3349, 3353. Although Penright’s court costs were imposed on June 28, 2012, because he did not pay them before September 1, 2013, the distribution will be governed by now

- effectiv e section 133.102(e)(7).5 (13) an account in the sta te treasury to be used for the establishment and operation of the Correctional Management Institute of Texas and Criminal Justice Center Account; and (14) fair defense account.
See T EX
. L OCAL G OV ’ T C ODE A NN
. § 133.102(e)

. C. Analysis Penright urges us to declare section 133.102(a)(1) facially unconstitutional because, Penright argues, it requires the judicial branch to collect a tax, which is a
power that the separation of powers clause reserves solely to the executive branch

. Penright contend s that the allocation of proceeds collected under section 133.102(a)(1) to twelve of the fourteen enumerated programs is contrary to Ex
p arte Carson , 159 S.W.2d 126 (Tex. Crim. App. 1942), because these 12 programs are “neither necessary nor incidental to the trial of a criminal case

. ” 2
In Ex p arte Carson , Carson challenged the constitutionality of a statute authorizing the assessment of a $1 fee to fund law libraries . The fee was assessed in civil and criminal cases, but only in counties having more than a certain number of district and county courts. Id. at 127. The Court of Criminal Appeals concluded that “the tax imposed by the bill is not and cannot be logically considered a proper item of cost in litigation, particularly in criminal cases .” I d. at

2 Penright does not challenge the constitutionality of two of the programs enumerated in section 133.102 : judicial and court personnel training fund and fair defense system. See T EX
. L OCAL G OV ’ T C ODE A NN
. § 133.102(e)(12), (14). Because Penright concedes their constitutionality, we do not address them further.6 127. It held that (1) the $1 cost was “neither necessary n or incidental to the trial of a criminal case [and thus was] not a legitimate item to be so taxed” against a criminal defendant; (2) the statute was a local or special law, which the state le gislature was not authorized to enact; and (3) collection of this cost only in certain counties was discriminatory. Id. at 127

– 30.
T he Court of Criminal Appeals r ecently rejected a Carson

- based facial constitutional challenge in an analogous case

. See Peraza v. State , Nos. PD

- 01 00

- 15 & PD

- 0101

- 15,

-- S.W.3d

-- , 2015 WL 3988926, at *6

– 7 ( Tex. Crim. App. July 1, 2015). Peraza involved a facial constitutional challenge to Article 102.020 of the Texas Code of Criminal Procedure , which required trial courts to assess a $250 DNA record fee on conviction of specified offenses

. Id . at *6

– 7

. The Peraza Court expressly rejected Carson ’s holding that court costs must be “necessary” or “incidental” to the trial of a criminal case in order to pass constituti onal muster : if the statute under which court costs are assessed (or an interconnected statute) provides for an allocation of such court costs to be expended for legitimate criminal justice purposes, then the statute allows for a constitutional application that will not render the courts tax gatherers in violation of the separation of powers clause. Id. at *7. The Peraza court explained that a legitimate criminal justice purpose is one that “relates to the administration of our criminal justice system. ” Id. It added that the question of whether a criminal justice purpose is legitimate must be considered on a “statute

- by

- statute/case

- by

- case basis.” Id. Thus, after Peraza , the7 question we consider is not whether the funds enumerated in section 133.102(e ) are
necessary or incidental to the trial of a criminal case, but, rather, whether those funds relate to the administration of our criminal justice system. Id

. In determining whether Peraza met his burden to demonstrate that section 102.020 could not operate constitutionally under any circumstance, the Peraza court considered the uses to which funds collected under the statute would be put. Id . (considering “sta tutorily provided for” applications and noting that it would be improper to evaluate constitutionality by “theorizing where the funds collected

. . . might be spent”). For example, with respect to the 65% of the DNA record fee deposited to the credit of t he criminal justice planning account , the Peraza court concluded that the statute passed constitutional muster because the criminal justice planning account is statutorily required to reimburse monies spent collecting DNA specimens from offenders charged w ith certain offenses, including aggravated sexual assault of a child under 14, the offense for which Peraza was convicted. Id

. at *7

– 8

. Thus, the Court concluded that the DNA fee was constitutional because the funds collected are allocated by statute to a purpose that is related to the administration of our criminal justice sy stem. Id . at *8

. Applying the analysis set forth in Peraza to the statute Penright challenges here leads us to conclude that the consolidated court cost authorized by section
133.1 02(e) is likewise constitutional. Several interconnected Texas statutes dictate8 the manner in which the vast majority of the proceeds collected under section 133.012(a) are to be expended :

• S ection 133.102(e)(2) directs th e comptroller to allocate .2581 % of the proceeds received to “c rime stoppers assistance

. ” T EX
. L OC
. G OV ’ T C ODE A NN
. § 133.102(e)(2). These proceeds are appropriated to the Criminal Justice Division of the Governor’s Office, which distributes 90% of the proceeds to crime stoppers organ izations and may use up to 10% of the funds for the operation of the toll

- free telephone service in areas of Texas not served by a crime stoppers organization for reporting to the council information about criminal acts. See T EX
. C ODE C RIM
. P ROC
. A NN
. art

. 102.013(a) (West 2006 ) ; T EX
. G OV ’ T C ODE A NN
. § 414.012 (West 2012 )

.

• Section 133.102(e)(3) directs the comptroller to allocate .5507% of the proceeds received to “ breath alcohol testing

. ” T EX
. L OC
. G OV ’ T C ODE A NN
. § 133.102(e)(3). These proceeds may be used by counties that maintain a certified breath alcohol testing program but do not use the services of a certified technical supervisor employed by the Department of Public Safety to defray the cost s of maintaining and supporting a certified brea th alcohol testing program , and it may be used by the Department in the implementation, administration, and maintenance of the statewide certified breath alcohol testing program. See T EX
. C ODE C RIM
. P RO C
. A NN
. art. 102.016 (West Supp. 2014 )

.

• S ection 133.102(e)(4) directs the comptroller to allocate 2.1683% of the proceeds received to the “ Bill Blackwood Law Enforcement Management Institute

. ” T EX
. L OC
. G OV ’ T C ODE A NN
. § 133.102(e)(4). These proceeds are used to pay for the cost of Texas residents’ participation in the Institute’s law enforcement management training programs

. T EX
. E DUC
. C ODE A NN
. § 96.64 (a), (c) (West 2002 )

.

• Section 133.102(e)(5) directs the comptroller to allocate 5.0034% of the proceeds received to “ law enforcement off icers standards and education

. ” T EX
. L OC
. G OV ’ T C ODE A NN
. § 133.102(e)(5). Two

- thirds of these proceeds may be used “ only to pay expenses related to continuing education” for law enforcement officers licensed under Chapter 170 1 of the Occupations Code , and the remaining third may be used only to pay related administrative expenses

. T EX
. L OCAL G OV ’ T C ODE A NN
. § 133.102(f).9 • Section 133.102(e)(6) directs the comptroller to allocate 9.8218% of the proceeds received to “ comprehensive rehabilitation

. ” T EX
. L OC
. G OV ’ T C ODE A NN
. § 133.102(e)(6). These proceeds may be used only to provide rehabilitation services directly or through public resources to individuals determined by the department to be eligible for the services under a vocational rehabilitation pro gram or other program e stablished to provide rehabilit ation services , as described in Human Resources Code section 111.052

. T EX
. H UM
. R ES
. C ODE A NN
. § § 111.052, 111.060 (West 2013 )

.

• S ection 133.102(e)(7) directs the comptroller to allocate 11.1426% of the proceeds received to the “ law enforcement and custodial officer supplemental r etirement fund

. ” T EX
. L OC
. G OV ’ T C ODE A NN
. § 133.102(e)(7). These funds may be used only to pay supplemental retirement and death benefits to law enforcement and custodial officers and to pay for administration of the fund

. T EX
. G O V ’ T C ODE A NN
. § 815.317 (b) (West Supp. 2014 ). 3

• S ection 133.102(e)(8) directs the comptroller to allocate 12.5537% of the proceeds received to “ criminal justice planning

. ” T EX
. L OC
. G OV ’ T C ODE A NN
. § 133.102(e)(8). T hese funds are to be used for state and local criminal justice projects which aim to reduce crime and improve the criminal and juvenile justice systems , and for other court

- related p urposes . T EX
. C ODE OF C RIMINAL P RO C
. 102.056(a) , (b) (West Supp. 2014 ).

• Section 133.102(e)(9) directs the comptroller to allocate 1.2090% of the proceeds received to “an account in the State treasury to be used only for the establishment and operation of the Center for the Study and Prevention of Juvenile Crime and Delinquency at Prairie View A&M University.” T EX
. L OC
. G OV ’ T C ODE A NN
. § 133.102(e)(9). The center may conduct and evaluate research relating to juvenile justice crime and delinquency and pro vide a setting for educational programs relating to juvenile crime and

3 Before September 1, 2013, this 11.142 6% was directed to the Operators and Chauffeur s License Fund which was administered by the Department of Public Safety. See Act of May 29, 2011, 82nd Leg., R.S., ch. 1249, § 13(b), 2011 Tex. Gen. Laws 3349, 3353. Undedicated and unobligated monies in this fund could be appropriated “only to the criminal justice division for the purpose of awarding grants” under the Prosecution of Border Crime Grant Program. See Act of May 23, 2011, 82nd Leg., R.S., ch. 1106, § 1, 2011 Tex. Gen. Laws 2854, 2855 (enacting now

- repealed T EX
. G OV ’ T C ODE A NN
. § 772.0071(d))

.10 delinquency, including educational training for criminal justice and social service professionals. T EX
. E DUC
. C ODE A NN
. § 87.105(d) (West 2002 )

.

• Section 133.102(e)(10) directs the comptroller to allocate 37.6338% of the proceeds received to the “ compensation to victims of crime fund

. ” T EX
. L OC
. G OV ’ T C ODE A NN
. § 133.102(e)(10). These funds may be used for the payment of compensation to claimants or victims, to reimbu rse a law enforcement agency for the reasonable costs of a sexual assault medical examination, to administer the associate judge program for child protection cases , and for victim

- related services or assistance. T EX
. C ODE C RIM
. P ROC
. A NN
. art s . 56.54 (Wes t Supp. 2014) , 56.542 (West 2006 ).

• Section 133.102(e)(11) directs the comptroller to allocate 5.5904 % of the proceeds received to the “ emergency radio infrastructure account

. ” These funds may only ( 1) be used for planning, development, provision, enhancement or ongoing maintenance of interoperable statewide emergency radio infrastructure , ( 2) be used in accordance with the statewide integrated public safety radio communications plan, ( 3) be used for the development of a regional or sta te interopera ble radio communication system , ( 4) be distributed as grants by the department to regional governments that have entered into interlocal agreements and state agencies requiring emergency radio infrastructure , or ( 5) be used for other public safety purposes

. T EX
. G OV ’ T C ODE A NN
. § 411.402 (West 2012 ).

• Section 133.102(e)(13) directs the comptroller to allocate 1.2090% of the proceeds received to “ an account in the state treasury to be used for the establishment and operation of the Correctional Management I nstitute of Texas and Criminal Justice Center Account

. ” These funds are used for the training of criminal justice professionals

. T EX
. E DUC
. C ODE A NN
. § 96.645 (b ) (West Supp. 2014 )

. These interconnected statutes direct the comptroller to allocate 99.99% of the proceeds collected under section 133.102 (e) to uses that relate to the administration of our criminal justice system and are therefore legitimate criminal justice purposes under Peraza

. See Peraza , 2015 WL 3988926 , at *7

– 8. Althou gh
no current statute mandates how the .0088% of the proceeds allocated to abused11 children’s counseling under section 133.102(e)(1) may be spent , abused children’s counseling on its face relates to the administration of our criminal justice system by provi ding resources for victimized children. Thus, Penright has failed to establish that it is not possible for section 133.102(e) to operate constitutionally in any circumstance. Id

. ( appellant failed to meet burden to establish that it was not possible for court cost provision to operate constitutionally in any circumstance where interconnected statutory provisions provided for funds to be expended for legitimate criminal justice purposes ); see also Luquis v. State , 72 S.W.3d 355, 365
n.26 (Tex. Crim. App. 2 002) (we favor constitutional reading over unconstitutional
readi ng when construing statutes.). In sum, the interconnected statutory provisions providing for the allocation of the funds collected as court costs pursuant to section 133.1 2 0 allow and requir e that the vast majority of the proceeds collected be expen ded for legitimate criminal justice purposes. See Peraza , 2015 WL 3988926 , at *8

. We therefore hold that Penright has not met his burden to establish that it is not possible for section
133.102 t o operate con stitutionally under any circumstance. Accordingly, the trial court did not err in denying Penright’s motions in arrest of judgment and for new trial

. We overrule Penright’s first issue. S ufficient evidence support s the Sheriff’s f ee12 In his second issue, Penright contends that the evidence is insufficient to support the assessment of the Sheriff’s fee in the amount of $15 because the record contains no Sheriff’s fee record. According to Penright, article 103.009 of the Texas Code of Criminal Procedure requires the Harris County She riff’s Department to keep a fee record and, therefore, the appellate record must contain the Sheriff’s fee record

. See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 103.009(a) (“ Each clerk of court, county judge, justice of the peace, sheriff , constable, and marshal shall keep a fee record. ”)

. But we have previously rejected this argument

— the record need not contain a Sheriff’s fee
record

. See Cardenas v. State , 403 S.W.3d 377, 386 n.10 (Tex. App.

— Houston [1st Dist.] 20 13) ( rejecting same argument and noting appellant presented no authority that article 103.009 fee record must be filed with trial court to support
inclusion of sheriff’s fees among costs chargeable to appellant and presented no argument that costs where no t legally authorized), aff’d , 423 S.W.3d 396 (Tex. Crim. App. 2014).
Here , t he clerk’s record includes a “J.I.M.S. Cost Bill Ass essment,” which includes a $5.00 commitment fee, a $5.00 release fee, and a $5.00 fee for making

an arrest without a warrant fee

— amounting to the $15 Sheriff’s fee in the judgment

. Penright contends that the J.I.M.S cost bill assessment is not a proper bill of costs because it is a “print out and not the type of record required by the13 statute

. ” The Court of Criminal Appeals has r ejected this argument. See Johnson
v. State , 423 S.W.3d 385, 391

– 94 (Tex. Crim. App. 2014). “[W]e review the assessment of court costs on appeal to determine if there is a basis for the cost, not to determine if there was sufficient evidence offered at trial to prove each cost, and traditional Jackson evidentiary

- sufficiency principles do not apply.” Johnson , 423 S.W.3d at 390

. We review the sufficiency of the evidence supporting the award of costs in the light most favorable to the trial court’s judgm ent. See Mayer v. State , 309 S.W.3d 552, 557 (Tex. Crim. App. 2010) ; Cardenas , 403 S.W.3d at 3 85

. A defendant convicted of a felony offense must pay certain statutorily mandated costs and fees. See Johnson , 423 S.W.3d at 389

. The record shows that Penright was convicted of a felony in district court, supporting each of the following court costs const ituting a S heriff’s fee : (1) $5.00 f or making an arrest without a warrant ; 4 (2) $5.00 as a commitment fee; 5 (3) $5.00 as a release fee ; 6

4 T EX
. C ODE C RIM
. P ROC

. A NN . art. 102.011(a)(1) (West Supp. 2014 ) (“$5 for . . . making an arrest without a warrant”). 5 Id. 102.001(a) (6) (West Supp. 2014) (“A defendant convicted of a felony or a misdemeanor shall pay the following fees for services performed in the ca se by a peace officer .

. . $5 for commitment or release”). 6 Id.14 These fees total $1 5.00, the same amount of costs assessed as a Sheriff’s f ee in this

case: $ 5.00 ( making arrest without a warrant ) $ 5.00 (release fee) $ 5 .00 ( commitment fee) $ 1 5.00 Accordingly, we hold that the evidence was sufficient to support the
S heriff’s fee in the amount of $15 assessed in the trial court ’s judgment

. See Johnson , 423 S.W.3d at 389, 396. We overrule Penright’s second issue. The trial court held a hearing on Penright’s motion for new trial
In his third issue, Penright asserts that the trial c ourt abused its discretion in refusing to conduct a hearing on his motion for new trial and motion in arrest of judgment. The record reflects that the trial court had scheduled a hearing on the motion for new trial but was unable to conduct the hearing as anticipated due to scheduling conflicts. As a result, Penright’s motion for new trial wa s overruled by operation of law. We abated this appeal and ordered the trial court to hold a hearing on the motion for new trial. The trial court held a hearing , and we have considered the record from that hearing on appeal. Therefore Penright’s third issue is moot. See Highfill v. State , No. 03

- 00

- 00126

- CR, 2001 WL 520978, at *10 (Tex. App.

— Austin Ma y 17, 2001, no pet.) ( not designated for publication) (holdin g appellant’s15 issue was rendered moot because appellant was given the opportunity to make a record in support of his motion for new trial and appellate court considered that record in disposing of only issue raised in the motion for new trial). We overrul e Penright’s third issue. Conclusion We affirm the judgment of the trial court . All pending motions are dismissed as moot.

Rebeca Huddle Justice Panel consists of Chief Justice Radack and Justices Massengale and Huddle. Publish

— T EX
. R. A PP
. P. 47.2( b).