Nelson Alberto HERNANDEZ, Appellant v. The STATE of Texas, Appellee

NO. 01-16-00755-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued August 10, 2017 Rehearing Denied September 20, 2018

Ted Wood, Assistant Public Defender, Harris County, Texas, 1201 Franklin, 13th Floor, Houston, TX 77002, for Appellant.

Kim Ogg, District Attorney-Harris County, Heather A. Hudson, Assistant District Attorney, Harris County, Texas, 1201 Franklin, Suite 600, 600 Houston, TX 77002, for Appellee.

Panel consists of Justices Jennings, Keyes, and Lloyd.

Russell Lloyd, Justice *503Appellant Nelson Alberto Hernandez was charged by information with assault-family member. After a jury found appellant guilty of the charged offense, the trial court assessed his punishment at 180 days in county jail. In three points of error, appellant contends that the trial court erred in (1) admitting the 911 call in violation of the Confrontation Clause; (2) labeling the offense for which appellant was convicted as "assault-family member" rather than "assault"; and (3) assessing a $25 "district attorney" fee in the bill of cost. We modify the trial court's judgment and affirm as modified.

**Background**

The information charged that appellant, "on or about JUNE 8, 2016, did then and there unlawfully[,] intentionally[,] and knowingly cause bodily injury to EBONY JONES, a MEMBER OF THE DEFENDANT'S FAMILY, A MEMBER OF THE DEFENDANT'S HOUSEHOLD, AND A PERSON WITH WHOM THE DEFENDANT HAD A DATING RELATIONSHIP, hereafter styled the Complainant by STRIKING THE COMPLAINANT WITH HIS HAND." Appellant pleaded not guilty.

At trial, the State called Deputy Bryan Maly with the Harris County Sheriff's Office as a witness. The complainant, Jones, did not testify at trial. The State also introduced six exhibits, among them, three photographs of Jones's injury and a tape recording of her 911 call.

Before testimony began, the State requested that the trial court rule on the admissibility of Jones's 911 call. After listening to the recording and to the arguments of counsel, the trial court stated:

> And I am going to find that I hear in the voice a stressed voice of somebody that's trying to get some police help. It is not calm. I believe that it does rise to the level of an emergency situation, although I don't think there is any bright line rule of what is an emergency situation. It is based upon the circumstances and the facts of a particular case.

The trial court admitted the recording of the 911 call, and the tape was played for the jury. In the call, Jones requested police assistance and stated that appellant, her husband, had attacked her. Shortly after he was notified of the call, Deputy Maly arrived on the scene.

Upon his arrival, Deputy Maly observed that Jones had "rather pronounced swelling on the side of her face, just near the eye." Deputy Maly described Jones as "very shaken, unsteady" and "traumatized," and stated that she was out of breath, her voice was quivering, and she appeared to have been crying. When Deputy Maly asked Jones if she needed EMS, Jones responded "no."

After meeting with Jones, Deputy Maly and two other deputies went to appellant's location at his friend's apartment in the complex. Appellant told Deputy Maly that he and Jones had gotten into an argument because he wanted to take his daughter back to Honduras and that he had gone to his friend's apartment to get away from the argument. Appellant had his marriage license and daughter's birth certificate with him. When Deputy Maly asked appellant if he had hit Jones, he replied that he had hit her in the past but had not hit her "this time." Deputy Maly testified that appellant *504displayed signs of intoxication, including red, bloodshot eyes, and that his breath smelled of alcohol. Deputy Maly subsequently detained appellant.

At the conclusion of trial, the jury found appellant guilty of the charged offense, and the trial court assessed his punishment at 180 days' confinement in county jail. This appeal followed.

**Discussion**

**A. Admissibility of 911 Tape Recording**

In his first point of error, appellant contends that the trial court erred in admitting Jones's out-of-court statements made in the 911 call because the statements were testimonial and their admission violated the Confrontation Clause.

**1. Applicable Law**

The Confrontation Clause of the Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." *Crawford v. Washington* , 541 U.S. 36, 42, 124 S.Ct. 1354, 1357, 158 L.Ed.2d 177 (2004) ; *Langham v. State* , 305 S.W.3d 568, 575 (Tex. Crim. App. 2010) (citing U.S. CONST. AMEND . VI ). Once a defendant raises a Confrontation Clause objection, the burden shifts to the State to prove either (1) that the proposed statement does not contain testimonial hearsay and thus does not implicate the Confrontation Clause or (2) that the statement does contain testimonial hearsay but is nevertheless admissible. *See**De la Paz v. State* , 273 S.W.3d 671, 680-81 (Tex. Crim. App. 2008) (citing *Crawford* , 541 U.S. at 68, 124 S.Ct. at 1374 ).

**2. Standard of Review**

We review alleged violations of the Confrontation Clause, including whether a statement is testimonial or nontestimonial, de novo. *See**Wall v. State* , 184 S.W.3d 730, 742 (Tex. Crim. App. 2006). The admission of a testimonial statement in violation of the Confrontation Clause is subject to a constitutional harm analysis under Rule of Appellate Procedure 44.2(a). *See* TEX. R. APP. P . 44.2(a) ("If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment."); *see**Wall* , 184 S.W.3d at 746 (noting that if there is reasonable likelihood that error materially affected jury's deliberations, then error is not harmless beyond reasonable doubt).

**3. Analysis**

To determine whether the admission of the 911 tape violated the Confrontation Clause, we must first determine whether the statements on the tape are testimonial. In *Davis v. Washington* , the United States Supreme Court explained the distinction between testimonial and nontestimonial statements:

> Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

*505547 U.S. 813, 822, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d 224 (2006).

"Statements made to police during contact initiated by a witness at the beginning of an investigation are generally not considered testimonial." *Cook v. State* , 199 S.W.3d 495, 498 (Tex. App.-Houston [1st Dist.] 2006, no pet.) ; *see also**Garcia v. State* , 212 S.W.3d 877, 883 (Tex. App.-Austin 2006, no pet.). For this reason, 911 calls initiated to summon police assistance are generally nontestimonial because they are "a cry for help" or "the provision of information enabling officers to end a threatening situation." *Davis* , 547 U.S. at 832, 126 S.Ct. at 2279 ; *Cook* , 199 S.W.3d at 498 ; *see also**Rodgers v. State* , No. 09-09-00359-CR, 2010 WL 3043705, at *2 (Tex. App.-Beaumont Aug. 4, 2010, no pet.) (mem. op., not designated for publication) (listing cases in which courts concluded similar 911 calls were nontestimonial).

In *Davis* , the Court addressed whether statements made by a victim of domestic violence to a 911 operator1 were testimonial in nature. *See*547 U.S. at 826-27, 126 S.Ct. at 2276-77. In concluding that the caller's statements were nontestimonial and thus admissible, the *Davis* court considered the following factors: (1) the caller was describing events as they were actually happening rather than past events; (2) any reasonable listener would recognize that the caller was facing an ongoing emergency; (3) when viewed objectively, the nature of what was asked and answered was such that the elicited statements were necessary to resolve the present emergency, rather than simply to learn what had happened in the past; and (4) the caller was frantically answering the 911 emergency operator's questions over the phone, in an environment that was not tranquil, or even safe. *See id.* The *Davis* court concluded that the caller was "seeking aid, not telling a story about the past." *See**id.* at 831, 126 S.Ct. at 2279. With these considerations in mind, we now examine the statements contained in the 911 tape.

Here, the record reflects that the 911 call was made at approximately 12:30 a.m. and lasted less than four minutes. During the call, Jones's voice is shaking and she is heard breathing heavily. When the operator asks Jones the location of her emergency, Jones provides the name and address of the apartment complex, and states "apartment 2201." When asked what she is reporting, Jones answers "[m]y husband attacked me." The operator then asks whether her husband is still in the apartment, and Jones answers that he went to his friend's apartment (number 2201) in the apartment complex. When the operator asks Jones where she is, Jones answers that she is standing outside of her apartment because of bad reception.2 The operator asks Jones whether she needs an ambulance, and Jones replies "no." The operator then asks Jones for appellant's name and a description of him. When the operator asks Jones what appellant did, she replies that he took her documents (marriage license and birth certificate), and that when she tried to take the papers from him he punched her in the face. The operator asks Jones whether there are any weapons at either apartment but Jones does not answer yes or no. The operator then tells Jones that the officer will meet her and confirms that she will be inside her apartment (number 3106). Jones then *506states, "I don't want him to try to flee," to which the operator responds that Jones cannot physically stop him. The operator tells Jones that an officer will be dispatched to her apartment and the call then concludes.

With regard to the first *Davis* factor, appellant argues that Jones's statements were testimonial because appellant was no longer in the apartment at the time Jones made the 911 call. Although it is true that Jones was not describing events as they were actually happening, courts applying *Davis* have held statements to be nontestimonial even though they were not describing events in progress. *See, e.g.* , *Santacruz v. State* , 237 S.W.3d 822, 828 (Tex. App.-Houston [14th Dist.] 2007, pet. ref'd) (concluding that domestic abuse victim's statements to 911 operator were nontestimonial even though they described events that had occurred ten to fifteen minutes earlier); *Martinez v. State* , 236 S.W.3d 361, 374-75 (Tex. App.-Fort Worth 2007, no pet.) (holding that statements made by appellant's son were nontestimonial under *Davis* , even though they described past events in which appellant gave son bag to hide in his pants); *Garcia v. State* , 212 S.W.3d 877, 883-84 (Tex. App.-Austin 2006, no pet.) (holding that statements made by wife were nontestimonial under *Davis* , even though they described past events in which her husband had forcibly abducted his child in violation of court order); *Delacueva v. State* , No. 14-05-01115-CR, 2006 WL 3589482, at *3 (Tex. App.-Houston [14th Dist.] Dec. 12, 2006, pet. ref'd) (mem. op., not designated for publication) (holding that statements made by defendant's girlfriend were nontestimonial under *Davis* , even though they described past events in which boyfriend had "beat up" girlfriend). The events in this call, while in the past, were in the immediate past, and Jones's statements describing them were necessary for the police to form an idea of the type of emergency with which they were dealing.

As to the second factor, appellant argues that there was no ongoing emergency at the time Jones made the 911 call because appellant had already left the apartment and gone to a friend's apartment. Although it is true that appellant was no longer in the apartment at the time of the 911 call, he was in a nearby apartment in the same apartment complex. *See**Santacruz* , 237 S.W.3d at 829 (concluding that any reasonable listener would recognize that domestic abuse victim was facing ongoing emergency even though she left her house to seek refuge in her mother's house). Appellant also points to the fact that when the operator asked Jones the location of the emergency, she initially told the operator apartment 2201 (the apartment to which appellant fled) rather than apartment number 3106 (her apartment). Thus, he argues, this fact demonstrates that there was no continuing threat to Jones at the time she made the call.3 However, Jones's response to the operator does not mean that there was no ongoing emergency. She may have understood the operator to be asking where police could find appellant. Her response could also have been caused by the distress she was experiencing. In that regard, a review of the tape recording reflects that Jones's voice was shaking and she was breathing *507heavily during the 911 call. Deputy Maly also testified that, when he arrived at the apartment shortly after the call, Jones was "very shaken, unsteady" and "traumatized," and that she was out of breath, her voice was quivering, and she appeared to have been crying. *See**id.* (noting officer's testimony, among other evidence, that victim was extremely upset, crying, and shaking when officer arrived at her mother's house, in reaching conclusion that any reasonable listener would believe victim was facing ongoing emergency). Given that appellant was still in the immediate vicinity of Jones's apartment and that Jones was upset when she spoke to the 911 operator, a reasonable listener would recognize that Jones was facing an ongoing emergency.

With regard to the third *Davis* factor, we find that the nature of what was asked and answered, when viewed objectively, was such that the elicited statements were necessary to effectively address the present emergency, rather than simply to learn what had happened in the past. After Jones asked for police, the 911 operator obtained essential basic information regarding Jones's identity and location. The operator then asked what she was reporting, and Jones responded "my husband attacked me." When asked what happened, Jones answered that appellant had taken her documents and that when she tried to take the papers from him he punched her in the face. The operator asked Jones for some identifying information for appellant and appellant's location. The operator then asked whether there were any weapons at either apartment and if Jones needed medical attention. Jones's statements were made in the course of a call initiated by the victim of a crime, and were neither official and formal in nature nor "solemn declaration[s] or affirmation[s] made for the purpose of establishing or proving some fact." *Crawford* , 541 U.S. at 51, 124 S.Ct. at 1364. The operator's questions and Jones's answers were necessary to resolve the responding officers' need to know "whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim." *Davis* , 547 U.S. at 832, 126 S.Ct. at 2279 ; *see also**Dixon v. State* , 244 S.W.3d 472, 484-85 (Tex.App.-Hous. [14 Dist.] 2007) (noting primary purpose of 911 operator's questions and domestic abuse victim's responses was to determine if victim was physically injured and in need of medical assistance, and to assess potential for continuing threat to victim's safety or safety of responding officer).

As to the fourth factor, the tape shows that Jones was upset, her voice was shaking, and she was breathing heavily. *See**Davis* , 547 U.S. at 827, 126 S.Ct. at 2277 (finding 911 caller's "frantic answers" indicative of nontestimonial statements); *Dixon* , 244 S.W.3d at 484 (finding fact that victim was highly distressed during call to 911 operator "compelling"); *Santacruz* , 237 S.W.3d at 830 (concluding tape showing that victim was distraught and frantically answering 911 operator's questions weighed in fact of finding statements nontestimonial). This fact indicates that Jones's statements to the 911 operator are nontestimonial.

We conclude that Jones out-of-court statements on the 911 tape, when viewed objectively, were made under circumstances indicating that the primary purpose of the interrogation was to enable the police to meet an ongoing emergency, rather than to establish or prove past events potentially relevant to later criminal prosecution. *See**Davis* , 547 U.S. at 822, 126 S.Ct. at 2273-74. Because Jones's statements are not testimonial, the trial court did not err in admitting them. We overrule appellant's first issue.

**B. Designation of Offense***508In his second point of error, appellant contends that the judgment should be reformed to reflect that he was convicted of "assault" and not "assault-family member."4

Appellant was charged under section 22.01 of the Texas Penal Code. There is no offense under Chapter 22 entitled "assault-family member" or "assault-family violence." These are descriptions, not separate types of assault. Penal Code section 22.01, "Assault," establishes one crime, assault, which is a class A misdemeanor. *See* TEX. PENAL CODE ANN . § 22.01(b) (West Supp. 2016). However, section 22.01 sets up a number of circumstances under which the punishment for the crime, assault, can be enhanced to a third-degree felony. This is accomplished when the crime, assault, is committed against one of an enumerated class of people to whom the legislature has extended special protection. These include public servants, employees of a correctional facility, employees of drug treatment facilities, security officers, emergency service personnel in the performance of duty, and family members. *See**id.* § 22.01(b)(1)-(5). Enhancement to a third-degree felony for assault on a family member is possible if "it is shown" that the defendant "has been previously convicted" of, among other things, assault on a family member under Chapter 22. *See**id.* § 22.01(b)(2)(A).

Appellant's punishment is not subject to enhancement to a third-degree felony because he has not been previously convicted of assault on a family member. If he is again charged with assault on a family member, this conviction can be used to enhance his punishment. *See**Butler v. State* , 189 S.W.3d 299, 302 (Tex. Crim. App. 2006). Appellant argues that the judgment in this case should be reformed to reflect a conviction for assault instead of what the judgment states, "assault-family member." However, appellant has cited no authority, and we have been unable to find any, that requires a judgment to use only the title of the offense identified in the Penal Code. Indeed, such authority as we have found is to the contrary.

In *Miles v. State* , 468 S.W.3d 719 (Tex. App.-Houston [14th Dist.] 2015), *aff'd on other grounds* , 506 S.W.3d 485 (Tex. Crim. App. 2016), the judgment recorded that the defendant had been convicted of sexual assault "of a child 14-17 years of age" and compelling prostitution "less than 18 years of age." On appeal, the defendant argued that the judgment should be reformed because the Penal Code only authorized convictions for "sexual assault" and "compelling prostitution." *Id.* at 736-737. The court disagreed, holding that these phrases accurately described the offenses and that these statutes criminalize different types of conduct which have varying defenses and punishments. *Id.* at 737-738. The court specifically held that there was no authority for the proposition that a judgment had "to include only the title of the offense identified in the Penal Code." *Id.* at 738. Similar results and reasoning are found in several cases which, while without precedential value, are instructive. *See e.g.,**Rodriguez v. State* , No. 14-15-00339-CR, 2016 WL 4922608, at *5 (Tex. App.-Houston [14th Dist.] Sept. 15, 2016, no pet.) (mem. op., not designated for publication) (declining to reform judgment for "assault-family member" to "assault" because *509defendant failed to provide any reason compelling such reformation); *Ayles v. State* , No. 01-10-00049-CR, 2011 WL 941259, at *1 (Tex. App.-Houston [1st Dist.] Mar. 17, 2011, no pet.) (mem. op., not designated for publication) (holding that trial court did not err by entering judgment for "Aggravated Sexual Assault of a Child Under 14" rather than "Aggravated Sexual Assault"); *Torres v. State* , No. 01-09-00936-CR, 2011 WL 148055, at *2 (Tex. App.-Houston [1st Dist.] Jan. 13, 2011, no pet.) (mem. op., not designated for publication) (concluding trial court did not err by entering judgment for "burglary of a habitation with intent to commit theft" rather than "burglary"). The thread that runs through these cases is based on the concept that so long as the judgment includes "an accurate description of the offense" then pedagogical precision is not required. *See**Davis v. State* , 501 S.W.2d 629, 633 (Tex. Crim. App. 1973). Under this standard, the offense described in the judgment in the case before us is not incorrect and is, therefore, no error.

*Othman v. State* , while without precedential value, is also instructive. *See* No. 14-09-00444-CR, 2010 WL 2853888 (Tex. App.-Houston [14th Dist.] July 22, 2010, no pet.) (mem. op., not designated for publication). The judgment, which arose out of a guilty plea, reflected that the defendant had been convicted of "Aggravated Assault-Family Member" but the judgment did not include an affirmative finding of family violence. *Id.* at *1. Unlike the case before us, the State agreed that the judgment should be reformed to reflect a conviction for aggravated assault and the parties also agreed that an affirmative finding of family violence should be incorporated in the judgment. *See id.* The court approved of the parties' proposals because the "improper nomenclature" of "aggravated assault-family member" is no substitute for an affirmative finding that the charged offense involved family violence as is required by Texas Code Criminal Procedure article 42.013 and "a separate, specific affirmative finding must be entered in addition to the recitation of the offense for which a defendant has been convicted." *Id.* Since the State agreed to reform the language of the judgment, the case stands more for the proposition that the judgment must contain a separate affirmative finding of family violence to satisfy the requirements of article 42.013 than it does for any requirement that the judgment recite only the exact language of the statute charging the offense. Such a finding is included in the judgment in the case before us. We overrule appellant's second issue.

**C. Constitutionality of Code of Criminal Procedure Article 102.008(a)**

In his third point of error, appellant contends that the $25 court cost assessed as a "district attorney" fee in the bill of cost is unconstitutional because the court cost is not expended for criminal justice purposes and, therefore, renders the court a tax gatherer in violation of the separation of powers.

Article II, section 1, of the Texas Constitution provides:

> 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.

One way the separation of powers provision is violated is "when one *510branch of government assumes or is delegated a power 'more properly attached' to another branch." *Ex parte Lo* , 424 S.W.3d 10, 28 (Tex. Crim. App. 2013). The courts are delegated a power more properly attached to the executive branch if a statute turns the courts into "tax gatherers," but the collection of fees in criminal cases is a part of the judicial function "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." *Peraza v. State* , 467 S.W.3d 508, 517 (Tex. Crim. App. 2015).

Article 102.008(a) of the Code of Criminal Procedure provides, with an exception not applicable here, that "a defendant convicted of a misdemeanor ... shall pay a fee of $25 for the trying of the case by the district or county attorney." TEX. CRIM. PROC. CODE ANN . art. 102.008 (West 2015). The statute does not state where the $25 fee is to be directed. The Office of Court Administration's website reflects that 100% of the money collected for the "prosecutor's fee" remains "with the County (or the City) and is directed to the County's (or City's) General Fund."5 Money in a county's general fund can be spent for "any proper county purpose." *See* Tex. Att'y Gen. Op. No. JM-530 (1986) (concluding money returned to county's general fund may be spent "for any proper county purpose").

In its recent decision in *Salinas v. State* , the Court of Criminal Appeals declared Local Government Code section 133.102 facially unconstitutional in violation of the separation of powers clause of the Texas Constitution to the extent it allocated funds to the "abused children's counseling" account because the funds were not directed by statute to be used for a criminal justice purpose and, instead, went to the State's general revenue fund. *See**Salinas v. State* , 523 S.W.3d 103, 109 n.26 (Tex. Crim. App. 2017).6 The Court concluded:

> "We cannot uphold the constitutionality of funding this account through court costs ... when all the funds in the account go to general revenue. Consequently, the allocation of funds to the "abused children's counseling" account does not currently qualify as an allocation of funds "to be expended for legitimate criminal justice purposes." To the extent that § 133.102 allocates funds to the "abused children's counseling" account, it is facially unconstitutional in violation of the Separation of Powers provision of the Texas Constitution.

*Id.* at 109-10.

The State argues that the prosecutor's fee assessed in this case is constitutional because it *can* be spent on a legitimate criminal justice purpose. This argument is unavailing. The *Salinas* court emphasized that the issue of whether a fee is a court cost (which is allowed) or a tax (which is unconstitutional) "must be determined at the time the fee is *collected* , not at the time the money is spent." *See**id.* at 109, n.26 (emphasis in original). The Court noted:

> Because the constitutional infirmity in this case is the statute's failure to *direct* the funds to be used in a manner that *511would make it a court cost (i.e., for something that is a criminal justice purpose), the statute operates unconstitutionally every time the fee is collected, making the statute unconstitutional on its face. The fact that some of the money collected may ultimately be spent on something that would be a legitimate criminal justice purpose if the legislature had directed its use in that fashion is not sufficient to create a constitutional application of the statute because the actual spending of the money is not what makes a fee a court cost.

*Id.*

Article 102.008(a) does not direct that the $25 prosecutor's fee be expended for criminal justice purposes. Consistent with *Salinas* , we hold that article 102.008(a) is unconstitutional to the extent it allocates funds to the county's general fund because those funds allow spending for purposes other than legitimate criminal justice purposes in violation of the separation of powers provision of the Texas Constitution. Accordingly, we sustain appellant's third point of error.

**Conclusion**

We modify the trial court's judgment to delete the $25 "district attorney" fee from the bill of cost. We affirm the judgment, as modified.

1

We presume, without deciding, that the acts of 911 operators may be considered to be acts of the police. *See**Davis v. Washington* , 547 U.S. 813, 823, 126 S.Ct. 2266, 2274 n.2, 165 L.Ed.2d 224 (2006).

2

The record reflects that Jones's first call to 911 was disconnected and that she called back a second time.

3

Appellant also suggests that Jones's statements are testimonial because "[s]he seemed more concerned that [appellant] would elude police authorities than that he would return and do her harm." Even assuming that this was Jones's subjective motivation in calling 911, the relevant inquiry is the purpose that reasonable participants would have had rather than the subjective or actual purpose of the particular parties. *See**Michigan v. Bryant* , 562 U.S. 344, 360, 131 S.Ct. 1143, 1156, 179 L.Ed.2d 93 (2011).

4

An appellate court may reform a trial court's judgment to allow the record to "speak the truth" when that court has the "necessary date and information to do so, or make any appropriate order as the law and nature of the case may require." *French v. State* , 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) ; *Nolan v. State* , 39 S.W.3d 697, 698 (Tex. App.-Houston [1st Dist.] 2001, no pet.).

5

*See* Office of Court Administration, *Study of the Necessity of Certain Court Costs and Fees in Texas* (Sept. 1, 2014), at 6-7 in Criminal Court Cost Section (Fee No. 13, "Prosecutor's Fee"), http://www.txcourts.gov/media/495634/SB1908-Report-FINAL.pdf.

6

The court also declared section 133.102 unconstitutional to the extent it allocated funds to the "comprehensive rehabilitation" account because the uses to which the money was directed did not relate to the criminal justice system. *See**Salinas v. State* , 523 S.W.3d 103, 108-10 (Tex. Crim. App. 2017).

Justice Keyes, concurring.

**CONCURRING OPINION**

Evelyn V. Keyes, Justice

In his second issue, appellant, Nelson Alberto Hernandez, requests that this Court reform the trial court's judgment to reflect that he was convicted of assault, not of assault on a family member, as the information charged, the jury found, and the trial court held. I agree with the panel's denial of appellant's request. I write separately to emphasize the reasons for rejecting that request.

Contrary to appellant's claim, the designation of "assault-family member" in the information, jury charge, and judgment of this case conveys information important to the identification, notice, and handing of this family-violence case. As the majority states, there is an entire body of family violence crimes, each specifically designated as such, in various statutes and articles, and in definitions and cross-references, scattered throughout the Penal Code, Code of Criminal Procedure, and Family Code. And convictions for family violence act as predicates of specified statutory consequences, such as enhancement of a defendant's punishment upon a second violation. These serve a serious function in the law.

The purpose of the designation of a crime as a specified crime of family violence (here, "assault-family member"), as the case law cited below specifically says, is two-fold. One purpose is to give notice to the defendant of the full nature of the crime with which he is charged and therefore of its potential consequences. A second purpose is to relieve the State of the burden of proving by extrinsic evidence that a defendant has previously been convicted of a crime involving family violence when family violence is a predicate for enhancing an offense or when a conviction for family violence has other effects, such as affecting custody of a child (a matter that does not require a second conviction).

Code of Criminal Procedure article 42.01, section 1(13) requires that the trial court's judgment reflect "the offense or offenses for which the defendant was convicted," *see* TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1(13) (West Supp. 2016), and the Court of Criminal Appeals has held that the better practice is to give "an accurate *512description of the offense." *Davis v. State* , 501 S.W.2d 629, 633 (Tex. Crim. App. 1973). Here, appellant was convicted of assault of a family member, as the trial court's judgment states. Therefore, the judgment fully complies with the requirements of Texas law and is proper.

**Background**

Appellant slapped his wife, Ebony Jones, in the face during an argument in which appellant stated that he wished to take their young daughter back to Honduras when Jones tried to take from him their marriage license and their daughter's birth certificate. Appellant then left their apartment with the marriage license and birth certificate, and Jones called 9-1-1. A recording of the call was played for the jury. In the call, Jones requested police assistance and stated that appellant, her husband, had attacked her and then left the scene to go to a friend's apartment in the same complex. Shortly after he was notified of the call, Deputy B. Maly arrived on the scene. Deputy Maly observed that Jones had "rather pronounced swelling on the side of her face, just near the eye." He described her as "very shaken, unsteady" and "traumatized," and he stated that she was out of breath, her voice was quivering, and she appeared to have been crying. When Deputy Maly asked Jones if she needed medical assistance, Jones responded "no."

After meeting with Jones, Deputy Maly and two other deputies went to another apartment in the complex where appellant was staying with a friend. Appellant told Deputy Maly that he and Jones had gotten into an argument because he wanted to take his daughter back to Honduras and that he had gone to his friend's apartment to get away from the argument. Appellant had his marriage license and daughter's birth certificate with him. When Deputy Maly asked appellant if he had hit Jones, he replied that he had hit her in the past but had not hit her "this time." Deputy Maly subsequently detained appellant.

Appellant was charged by information with "assault-family member," an act of family violence. Specifically, the information charged him with "intentionally and knowingly caus[ing] bodily injury to EBONY JONES, a MEMBER OF THE DEFENDANT'S FAMILY, A MEMBER OF THE DEFENDANT'S HOUSEHOLD, AND A PERSON WITH WHOM THE DEFENDANT HAD A DATING RELATIONSHIP, hereafter styled the Complainant, by STRIKING THE COMPLAINANT WITH HIS HAND." The jury charge stated that appellant was charged by information with the offense of "assault-family member." After the jury found appellant guilty of the charged offense, the trial court assessed his punishment at 180 days in the Harris County Jail. The trial court's judgment stated that appellant was convicted of "assault-family member," and the judgment also included an affirmative finding that the offense involved family violence.

**Reformation of the Judgment**

In his second issue, appellant argues that the trial court's judgment should be reformed to reflect that he was convicted of "assault," as opposed to "assault-family member," because the offense of "assault-family member" does not exist. It is true, as the majority states, that there is no offense in the Penal Code entitled "assault-family member" or "assault-family violence." Op. at 514. But it is not true that Penal Code section 22.01 is, as appellant alleges, merely a general assault statute.

Penal Code section 22.01, entitled "Assault," establishes the crime of assault, which is generally a Class A misdemeanor. *See* TEX. PENAL CODE ANN. § 22.01(b) (West *513Supp. 2016). Under section 22.01(a), a person commits the offense of assault if he "intentionally, knowingly, or recklessly causes bodily injury to another, *including the person's spouse.* " *Id.* § 22.01(a)(1) (emphasis added). If the defendant has been previously convicted of an offense under Penal Code section 22.01(a) against a person whose relationship to or association with the defendant is described by Family Code sections 71.0021(b), 71.003, or 71.005 -i.e., if the offense for which the defendant was previously convicted was an act of family violence against (1) a person with whom the defendant has a dating relationship ( section 71.0021(b) ), (2) a family member, including a spouse or parent of the same child ( section 71.003 ), or (3) a member of the defendant's household ( section 71.005 )-the level of the offense is enhanced by section 22.01(b)(2)(A) from a Class A misdemeanor to a third-degree felony. *See**id.* 22.01(b)(2)(A) ; TEX. FAM. CODE ANN. § 71.0021(b) (West Supp. 2016) (defining "dating violence" to include act intended to result in physical harm, bodily injury, or assault against person with whom defendant has "dating relationship," i.e., "a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature"); *id.* § 71.003 (West 2014) (defining "family" to include persons who are married or are parents of same child); *id.* 71.005 (West 2014) (defining "household" as "a unit composed of persons living together in the same dwelling").

And there is an additional consequence of a defendant's commission of the offense of assault against a spouse. Code of Criminal Procedure article 42.013 provides that if the trial court determines that a criminal offense involved family violence, "the court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of the case." TEX. CODE CRIM. PROC. ANN. art. 42.013 (West 2006). "Family violence" is defined by the Texas Family Code to include "an act by a member of a family ... against another member of the family ... that is intended to result in physical harm, bodily injury, [or] assault." TEX. FAM. CODE ANN. § 71.004 (West Supp. 2016). Thus, assault committed against a family member, including a spouse of the defendant, in violation of Penal Code section 22.001(a), as here, is both an act of family violence and a predicate act for enhancement of any future offense of family violence from a misdemeanor to a third-degree felony. And conviction of the offense requires that the trial court enter in the judgment an affirmative finding that the offense involved family violence.

Moreover, a conviction for family-violence assault has additional consequences beyond enhancing a second family-violence assault offense to a felony. In child custody proceedings, there is a rebuttable presumption that the appointment of a parent as the sole managing conservator of a child, or as the conservator with the exclusive right to determine the child's primary residence, is not in the child's best interest if credible evidence is presented of a history of physical abuse by the parent directed against the other parent or spouse. *See* TEX. FAM. CODE ANN. § 153.004(b) (West 2014). And the Family Code expressly provides that a court deciding child custody issues "shall consider the commission of family violence ... in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator." *Id.* § 153.004(c).

Additionally, a person who has been convicted of family-violence assault may not possess a firearm before the fifth anniversary of the later of the date of the person's release from confinement following conviction of the misdemeanor family-violence assault offense or the date of the person's release from community supervision following *514conviction of the misdemeanor. *See* TEX. PENAL CODE ANN. § 46.04(b) (West 2011); *see also*18 U.S.C. § 922(g)(9) (providing that it is unlawful for any person who has been convicted in any court of misdemeanor domestic violence "to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce").

Thus, a conviction for an act of family violence has many consequences that a mere act of criminal assault under section 22.001(a) that is *not* assault of a spouse and *not* an act of family violence does not have, as intended by the Texas Legislature. *See**Agbogwe v. State* , 414 S.W.3d 820, 840 (Tex. App.-Houston [1st Dist.] 2013, no pet.) (by enacting article 42.013 and amending section 22.01 to allow for repeat family-violence assault offenses to be enhanced from misdemeanor to felony, Texas Legislature intended to impose harsher penalties for defendants convicted of multiple assaults involving family violence).

*Butler v. State* , cited by the majority, shows, in both the intermediate appellate court's opinion and the Court of Criminal Appeals' opinion, why the designation of misdemeanor assault against a family member as "assault-family member," and not simply as "assault," matters to both notice of the offense charged and proof of the offense as an incident of family violence in any subsequent proceeding. *See**Butler v. State* , 162 S.W.3d 727, 730 (Tex. App.-Fort Worth 2005) (" *Butler I* "), *aff'd* , 189 S.W.3d 299, 302, 303 (Tex. Crim. App. 2006) (" *Butler II* ").

The defendant in *Butler* , as here, was charged by information with misdemeanor "assault-family violence" under Penal Code section 22.01(a)(1) for an assault against his fiancée. *Butler I* , 162 S.W.3d at 729. He was found guilty by a jury, and the trial court entered an affirmative finding of family violence in the judgment. *Id.* The defendant complained that he did not have prior notice that his assault on his fiancée was an act of family violence. *Id.* at 730. Butler also contended that because a finding of family violence enhanced his misdemeanor conviction under section 22.001(a)(1) to a third degree felony conviction, the trial court erred by making a factual finding of family violence rather than submitting the family violence issue to the jury. *Id.* He asserted that, under *Apprendi v. New Jersey* , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the issue of whether he had committed family violence could only be decided by a jury, not by the court. *See id.*

The Fort Worth Court of Appeals rejected Butler's arguments and affirmed his conviction. The court noted that "[a] finding of family violence 'impacts a defendant's sentence only if the defendant has previously committed a family-violence assault.' " *Id.* (quoting *Thomas v. State* , 150 S.W.3d 887, 888 (Tex. App.-Dallas 2004, pet. ref'd) ). But, because the case at issue was Butler's first conviction involving family violence, the trial court's affirmative family-violence finding could not increase his sentence in that case. *Id.* And, because the family-violence finding had no effect on Butler's punishment in the case at issue, *Apprendi* was not implicated, and the trial court's family-violence finding was valid. *Id.* at 732. The court then went on to hold, in a ruling particularly important for future family-violence cases, that Butler had *notice* of the family-violence allegation-despite his contention that he did not-because the information indicated that the charge against him was "assault family violence," and Butler knew that the complainant *515was his fiancée and that they had a child together. *Id.* at 730-31.

The Court of Criminal Appeals, like the court of appeals, rejected Butler's contentions. It likewise held that the trial court had the authority to sentence Butler without leaving the family violence finding to be made by a jury, and affirmed his conviction for misdemeanor family-violence assault. *Butler II* , 189 S.W.3d at 302 ; *see also**Hernandez v. State* , 280 S.W.3d 384, 388 (Tex. App.-Amarillo 2008, no pet.) (holding that article 42.013 places duty of making affirmative family-violence finding upon trial court if court determines that offense involved family violence, and trial court has no discretion regarding entering family-violence finding once it makes this determination).

In *State v. Eakins* , the Austin Court of Appeals explained that the requirement of an affirmative family-violence finding in the trial court's judgment "was obviously intended to simplify the prosecution of subsequent family assault cases by making it unnecessary to relitigate the details of the previous assault." 71 S.W.3d 443, 444 (Tex. App.-Austin 2002, no pet.). Instead, the court held, "the State may rely on the affirmative finding in the prior judgment to prove that the victim of the defendant's previous assault was a family member." *Id.* ; *see also**Mitchell v. State* , 102 S.W.3d 772, 775 (Tex. App.-Austin 2003, pet. ref'd) (rejecting defendant's argument that because judgment of previous conviction did not contain article 42.013 affirmative finding there was no evidence that he had prior family-violence conviction and holding that State may meet its burden under Penal Code section 22.01(b)(2) by introducing previous judgment that contains affirmative family-violence finding or by introducing previous judgment of assault conviction plus extrinsic evidence that complainant in previous case was member of defendant's family or household).

*Butler* , *Eakins* , and *Mitchell* all illustrate the propriety and importance of including the designation of a case as a family-violence case in the information, charge, and judgment, as well as including the affirmative finding of family violence in the judgment. All of these cases stand either for the proposition that such a designation gives the defendant notice that conviction of the offense with which he is charged has consequences beyond the immediate case or for the proposition that such a designation is evidence in a subsequent proceeding that the defendant did in fact commit a crime of family violence and that he knew it was a crime of family violence, obviating the need for extrinsic proof in the subsequent proceeding.

The situation in these family violence cases is similar to that in *Miles v. State* , cited by the majority. Op. at 508-09. In that case, a jury convicted the defendant of compelling prostitution and sexual assault of a child, and the trial court's judgments stated that the defendant had been convicted of "compelling prostitution less than 18 years of age" and "sexual assault of a child 14-17 years of age." *See**Miles* , 468 S.W.3d 719, 736 (Tex. App.-Houston [14th Dist.] 2015), *aff'd on other grounds* , 506 S.W.3d 485 (Tex. Crim. App. 2016). The defendant requested that the Fourteenth Court of Appeals reform the judgments to state that he was convicted of "compelling prostitution" and "sexual assault," respectively, thus *not* stating that the convictions were more specifically convictions for sexual assault and compelling prostitution of a child. *Id.* at 737.

Our sister court refused to reform the judgments, stating that "the phrases 'of a child 14-17 years of age' and 'less than 18 years of age' accurately describe the offenses-sexual assault and compelling *516prostitution, respectively-for which [Miles] was convicted." *Id.* The court then noted that both the sexual assault and the compelling prostitution statutes "criminalize different types of conduct for which there can be varying defenses and punishments." *Id.* at 737-38. It pointed out that compelling prostitution is generally a second-degree felony, but it is a first-degree felony when the complainant is a child younger than eighteen, and that certain defenses apply to sexual assault if the complainant is fourteen or older. *Id.* The court also noted that Miles had "cited to no authority that would require a judgment to include only the title of the offense identified in the Penal Code" and that the Code of Criminal Procedure does not require the judgment to state the precise title of the offense used in the Penal Code. *Id.* at 738. Rather, the Code of Criminal Procedure provides that the trial court's judgment shall reflect "[t]he offense or offenses for which the defendant was convicted." TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1(13). The Fourteenth Court refused to hold that "the trial court erred by including phrases that accurately describe the offenses for which [Miles] was convicted." *Miles* , 468 S.W.3d at 738.

The Court of Criminal Appeals reached similar decisions in *Garcia v. State* , 453 S.W.2d 822, 824 (Tex. Crim. App. 1970) (holding that trial court did not err when judgment read "Burglary PRNT" because indictment alleged and jury found that defendant committed offense of burglary of private residence at night), and in *Davis* , 501 S.W.2d at 633 (holding that, as opposed to stating in judgment that defendant was convicted of "burglary as charged in the indictment," "better practice" was to use term such as "burglary with intent to commit theft" or "burglary with intent to commit rape" or to otherwise give "*an accurate description of the offense* " in judgment) (emphasis added).

Here, as in *Miles* , *Garcia* , and *Davis* , the inclusion of the description of appellant's offense as "assault-family member" in the information, jury charge, and judgment were all proper to give "an accurate description of the offense." At trial, the State presented evidence that appellant assaulted Jones, his wife and the mother of his child, who was undisputedly a member of appellant's family. *See* TEX. FAM. CODE ANN. § 71.003 (defining "family" to include spouses as well as parents of same child). Thus, the phrase "family member" in the judgment accurately describes the offense for which appellant was convicted, as required by Texas Code of Criminal Procedure article 42.01. *See**Miles* , 468 S.W.3d at 737 ; *see also* TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1(13) (requiring that trial court's judgment reflect "[t]he offense or offenses for which the defendant was convicted"); *Davis* , 501 S.W.2d at 633 (stating that "better practice" in naming offense in judgment included giving "an accurate description of the offense"). Moreover, as with the sexual assault and compelling prostitution statutes at issue in *Miles* , the assault statute at issue in this case "criminalize[s] different types of conduct for which there can be varying defenses and punishments" by providing that a second offense for assault on a family member is a third-degree felony as opposed to a Class A misdemeanor. *See*468 S.W.3d at 737-38 ; *see also* TEX. PENAL CODE § 22.01(b)(2)(A). Thus, the information, jury charge, and judgment in this case were more accurate as to the offense charged because they included the designation "assault-family member" than if they had not. The trial court did not err by naming the offense for which appellant was convicted as "assault-family member." *See**Miles* , 468 S.W.3d at 737-38.

For all the foregoing reasons, I agree with the judgment of the panel denying *517appellant's request to reform the judgment to reflect that he was convicted of "assault" rather than "assault-family member."

**Conclusion**

I respectfully concur in the judgment.

Justice Keyes, concurring in part and dissenting in part.

**OPINION DISSENTING FROM DENIAL OF REHEARING**

Evelyn V. Keyes, Justice

I respectfully dissent from the panel majority's denial of rehearing. I agree with the State's argument in its Motion for Rehearing that we erred in holding unconstitutional Texas Code of Criminal Procedure article 102.008(a), which, upon conviction, provides for the assessment of a $25 fee "for the trying of [a misdemeanor] case by the district or county attorney." *See* TEX. CODE CRIM. PROC. ANN . art. 102.008(a) (West 2018). I would hold that the trial court did not err in including the fee in the bill of cost assessed against appellant Nelson Alberto Hernandez. Accordingly, I would grant rehearing, withdraw the August 10, 2017 panel opinion insofar as it opines and rules upon the constitutionality of Code of Criminal Procedure article 102.008(a), supplement that part of the August 10, 2017 opinion with this opinion, and affirm the judgment of the trial court in its entirety.

**A. Standard of Review of Constitutionality of a Statute**

A person challenging the constitutionality of a statute has the burden of establishing its unconstitutionality. *Peraza v. State* , 467 S.W.3d 508, 514 (Tex. Crim. App. 2015). The reviewing court must "commence with the presumption that such statute is valid and that the Legislature has not acted unreasonably or arbitrarily in enacting the statute." *Id.* (quoting *Ex parte Granviel* , 561 S.W.2d 503, 511 (Tex. Crim. App. 1978) ). The court must "make every reasonable presumption in favor of the statute's constitutionality, unless the contrary is clearly shown." *Id.* To establish that a statute is facially unconstitutional, as appellant seeks to do here, the challenger must demonstrate that "no set of circumstances exists under which that statute would be valid." *Id.* We should consider "the statute only as it is written, rather than how it [may operate] in practice[.]" *Id.* at 515 (quoting *State ex rel. Lykos v. Fine* , 330 S.W.3d 904, 908 (Tex. Crim. App. 2011) ).

**B. Constitutionality of Code of Criminal Procedure Article 102.008(a)**

In his third point of error, appellant contends-and the August 10, 2017 panel opinion agrees-that the $25 court cost assessed against him as a "district attorney" fee in the bill of costs is unconstitutional because the court cost is not expended for criminal justice purposes and thus it "renders the court a tax gatherer in violation of the separation of powers." *Hernandez v. State* , 562 S.W.3d 500, 508, No. 01-16-00755-CR, 2017 WL 3429414, at *6 (Tex. App.-Houston [1st Dist.] Aug. 10, 2017, no pet. h.). I believe this conclusion rests upon an incomplete reading of the statutory scheme and the misinterpretation of governing case law.

The panel opinion correctly states, " Article 102.008(a) of the Code of Criminal Procedure provides, with an exception not applicable here, that 'a defendant convicted of a misdemeanor ... shall pay a fee of $25 for the trying of the case by the district or county attorney.' " *Id.* (quoting TEX. CRIM. PROC. CODE ANN . art. 102.008 ). Relying on the Court of Criminal Appeals' opinion in *Peraza* , the panel opinion reasoned *518that "the collection of fees in criminal cases is a part of the judicial function '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,' " and, accordingly, the collection of such fees does not violate the separation of powers clause in the Texas Constitution by improperly assigning an executive power to the judicial branch. *See**id.* (quoting *Peraza* , 467 S.W.3d at 517 ). I agree.

However, having correctly stated the text of Article 102.008, the panel opinion veers off into an analysis that misapprehends and mischaracterizes the applicable statutory scheme and that misconstrues and misapplies the Court of Criminal Appeals' holding in *Salinas v. State* , 523 S.W.3d 103 (Tex. Crim. App. 2017). Incorrectly construing article 102.008 to be the *only* statute directing the $25 fee, the opinion declares, "The statute does not state where the $25 fee is to be directed." *Hernandez* , 562 S.W.3d at 508, 2017 WL 3429414, at *6. It then observes, on the basis of an excerpt from a study of court costs on the Office of Court Administration's website, that "the money collected for a 'prosecutor's fee' remains 'with the County (or the City) and is directed to the County's (or City's) General Fund.' "1*Id.* The opinion states, "Money in a county's general fund can be spent for 'any proper county purpose.' " *Id.* (quoting Tex. Att'y Gen. Op. No. JM-530 (1986) (concluding money returned to county's general fund may be spent "for any proper county purpose") ). Citing to *Salinas* , the panel opinion then incorrectly opines, " Article 102.008(a) does not direct that the $25 prosecutor's fee be expended for criminal justice purposes," and it concludes that, therefore, " article 102.008(a) is unconstitutional to the extent it allocates funds to the county's general fund because those funds allow spending for purposes other than legitimate criminal justice purposes in violation of the separation of powers provision of the Texas Constitution." *Id.* at 5, at *7.

The statutory scheme relating to this fee is, however, more complex than the panel opinion acknowledges, and *Salinas* is more nuanced than its portrayal in the panel opinion.

As the Court of Criminal Appeals stated in *Salinas* , a violation of the Separation of Powers provision occurs "when one branch of government assumes or is delegated a power 'more properly attached' to another branch." 523 S.W.3d at 106-07 (op. on reh'g) (quoting *Ex parte Lo* , 424 S.W.3d 10, 28 (Tex. Crim. App. 2014) ). Since tax-gathering is assigned to the executive branch, rather than to the judicial branch, a statute imposing the collection of a fee by the courts can operate to turn the courts into tax gatherers unless the statute provides for an allocation of the fee to be expended for "legitimate criminal justice purposes." *Id.* at 107 (quoting *Peraza* , 467 S.W.3d at 517 ). The court continued, "What constitutes a legitimate criminal justice purpose is a question to be answered on a statute-by-statute/case-by-case basis. And the answer to that question is determined by what the governing statute says about the intended use of the funds, not whether funds are *actually* used for a criminal justice purpose." *Id.* (emphasis added) (citing *Peraza* , 467 S.W.3d at 517-18, and *Salinas v. State* , 464 S.W.3d 363, 368 (Tex. Crim. App. 2015) ).

*519In *Salinas* , the Court of Criminal Appeals declared a portion of Local Government Code section 133.102 facially unconstitutional and in violation of the Separation of Powers Clause of the Texas Constitution because, at the time of that case, funds collected under the statute went to the State's General Revenue Fund and were then allocated to multiple accounts, including an account for "abused children's counseling." 523 S.W.3d at 107. A program for "abused children's counseling" no longer existed, so the funds allocated to that account reverted to the General Revenue Fund, where they could be used for any purpose, rather than being directed to a statutorily-specified criminal justice purpose.2*See**id.* at 109-10. That is not the case here.

Unlike the "abused children's counseling" fee at issue in *Salinas* , which reverted to the General Revenue Fund and could be distributed for any purpose because there was no statute currently directing the use of the fund for a criminal justice purpose, here an "interconnected" series of statutes directs the prosecutor's fee provided for in article 102.008 to be deposited into a fund in the county treasury and used to pay the prosecuting attorney's salary and expenses. This accords with the Texas Constitution, which directs that the prosecutor's fee be deposited into the county treasury in the account of the proper fund.

Specifically, article XVI, section 61 of the Texas Constitution provides, in relevant part:

> (a) All district officers in the State of Texas and all county officers in counties having a population of twenty thousand (20,000) or more, according to the then last preceding Federal Census, shall be compensated on a salary basis.

> ....

> (d) All fees earned by district, county and precinct officers shall be paid into the county treasury where earned for the account of the proper fund, provided that fees incurred by the State, county and any municipality, or in case where a pauper's oath is filed, shall be paid into the county treasury when collected and provided that where any officer is compensated wholly on a fee basis such fees may be retained by such officer or paid into the treasury or the county as the Commissioners Court may direct.

TEX. CONST . art. XVI, § 61 (a), (d).

The district attorney is a district officer. *See* Tex. Att'y Gen. Op. No. MW-252, at *2 (1980) (citing *520Tex. Att'y Gen. Op. No. H-656 (1975) (concluding that district attorney is district, not county, officer) ). Therefore, pursuant to article XVI, section 61, fees earned by a district officer, such as the "prosecutor's fee" provided for in article 102.008(a), must be paid into the account of the proper fund, rather than being paid personally to the prosecuting attorney.3 TEX. CONST . art. XVI, § 61 (d). The Texas Local Government Code provides that "[a] district ... officer who is paid an annual salary shall charge and collect in the manner authorized by law all fees, commissions, and other compensation permitted for official services performed by the officer. The officer shall dispose of the collected money as provided by Subchapter B, Chapter 113." TEX. LOC. GOV'T CODE ANN . § 154.003 (West 2008).

Subchapter B, Chapter 113 provides that the "fees, commissions, funds, and other money belonging to a county shall be deposited with the county treasurer by the person who collects the money." *Id.* § 113.021(a) (West Supp. 2017). Once the funds are deposited with the county treasurer, the treasurer is directed by statute to "deposit the money in the county depository in the proper fund to the credit of the person or department collecting the money," here to the officer's salary fund. *See id.* § 113.021(b); *see also* Tex. Att'y Gen. Op. No. GA-0636, at *2 (2008) (noting that any "fees, commissions, or other compensation collected by an officer who is paid on a salary basis are deposited by the treasurer in the applicable salary fund created by Local Government Code chapter 154, which governs the compensation of district, county, and precinct officers paid on a salary basis").

Local Government Code Chapter 154 directs the county treasurer to create a salary fund for each district, county, and precinct officer to be known as the "(*officer's title* ) salary fund of (*name of county* ) County, Texas." TEX. LOC. GOV'T CODE ANN . § 154.042(a) (West 2008). The purpose of the fund is to pay "the salary of the officer," "the salaries of the officer's deputies, assistants, clerks, stenographers, and investigators," and "authorized and approved expenses of the office of the officer." *Id.* § 154.042 (a)(1)-(3). The salary fund must be "deposited in the county depository," "kept separate from other county funds," and "protected to the same extent and draw the same interest as other county funds." *Id.* § 154.042(b) ; Tex. Att'y Gen. Op. No. DM-199, at *2 (1993).

The Local Government Code also authorizes the commissioner's court, at its first regular meeting of the fiscal year, to order that the funds which would otherwise be deposited into an officer's salary fund be deposited into the general fund of the county. *See* TEX. LOC. GOV'T CODE ANN . § 154.007(a) (West 2008); Tex. Att'y Gen. Op. No. DM-199, at *2. However, if the funds are dedicated by statute to compensate the officer, the commissioners court is not authorized to divert the funds to other uses. *See* Tex. Att'y Gen. Op. No. DM-199, at *3 (concluding that although motor vehicle registration fees collected by county tax assessor-collector were deposited in county's general fund, they could only be used by commissioner's court to compensate tax assessor-collector for services relating *521to registration of vehicles because fees were dedicated by statute to that purpose).

Local Government Code section 113.047 provides that "[a]fter the deposit of funds in a county depository, an officer in a county with a population of 190,000 or more may draw checks on the county treasurer to disburse the funds as payment for a salary or expenses authorized by law...." TEX. LOC. GOV'T CODE ANN . § 113.047 (West 2008) ; Tex. Att'y Gen. Op. No. JM-1074, at *4 (1989). And section 154.043(a) permits "[a] district, county, or precinct officer [to] issue a warrant against the salary fund to pay the salary of an employee whose salary may be paid from the fund." TEX. LOC. GOV'T CODE ANN . § 154.043(a) (West 2008). "It is therefore clear that fees formerly deposited in officers' salary funds are available to fund the office of the county officer who collected the funds even after their deposit in the county general fund." Tex. Att'y Gen. Op. No. DM-199, at *3.

The prosecutor's fee in the instant case is distinguishable from the "abused children's counseling" fee at issue in *Salinas* because Texas law directs the fee to be expended as compensation for the prosecuting attorney. Appellant's argument that article 102.008(a) is facially unconstitutional because a website reflects that the prosecutor's fee is directed to the county's general fund is unavailing because it fails to account for interrelated statutory provisions directing the fees to a salary fund to be used for a legitimate criminal justice purpose. *See**Yazdchi v. State* , 428 S.W.3d 831, 837 (Tex. Crim. App. 2014) (stating that, when interpreting statutes, courts presume that Legislature intended for entire statutory scheme to be effective). Appellant also overlooks statutory authority permitting the general fund to function as a salary fund for the district.

I would overrule appellant's third issue, contesting the constitutionality of article 102.008(a).

**Conclusion**

I would grant rehearing, withdraw the August 10, 2017 opinion insofar as it opines and rules upon the constitutionality of Texas Code of Criminal Procedure article 102.008(a), supplement that part of the August 10, 2017 opinion with this opinion, and I would affirm the judgment of the trial court in its entirety.

1

*See* Office of Court Administration, *Study of the Necessity of Certain Court Costs and Fees in Texas* (Sept. 1, 2014), at 6-7 in Criminal Court Cost Section (Fee No. 13, "Prosecutor's Fee"), http://www.txcourts.gov/media/495634/SB1908-ReportFINAL.pdf.

2

The Court of Criminal Appeals stated:

> [A]lthough the "abused children's counseling" account originally funded a program for abused children's counseling, the program to which the funds are directed no longer exists and the funds revert to the General Revenue Fund. We cannot uphold the constitutionality of funding this account through court costs on the basis of its name or its former use when all the funds in the account go to general revenue. Consequently, the allocation of funds to the "abused children's counseling" account does not currently qualify as an allocation of funds "to be expended for legitimate criminal justice purposes." To the extent that § 133.102 allocates funds to the "abused children's counseling" account, it is facially unconstitutional in violation of the Separation of Powers provision of the Texas Constitution.

> *Salinas v. State* , 523 S.W.3d 103, 110 (Tex. Crim. App. 2017). The Court of Criminal Appeals also held that section 133.102 's requirement that a portion of the cost collected be directed to the "comprehensive rehabilitation" account was facially unconstitutional because this account was created to provide rehabilitation services to qualified individuals, but this program did not relate in any way to criminal justice. *Id.* at 108-09.

3

Code of Criminal Procedure article 102.007 provides an exception, allowing the district attorney to collect a fee for processing hot checks. *See* Tex. Code Crim. Proc. Ann . art. 102.007(a) (West 2018). These funds are "deposited in the county treasury in a special fund to be administered by the county attorney, district attorney, or criminal district attorney," and expenditures from the fund "shall be at the sole discretion of the attorney and may be used only to defray the salaries and expenses of the prosecutor's office." *Id.* § 102.007(f).