Ruben Lee ALLEN, Appellant v. The STATE of Texas, Appellee

NO. 01-16-00768-CR

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

Opinion issued August 30, 2018 Discretionary Review Granted December 12, 2018

**OPINION ON REHEARING**1

1

The State filed a motion for en banc reconsideration of our opinion of November 28, 2017. We withdrew the earlier opinion and judgment. We issue this opinion and accompanying judgment in their stead.

Harvey Brown, Justice

A jury found Ruben Lee Allen guilty of the offense of aggravated robbery with a deadly weapon2 and assessed punishment at 25 years' confinement. In two issues, Allen contends that the trial court lacked jurisdiction over this case and that a $200 "summoning witness/mileage" fee3 assessed against him after his conviction is unconstitutional.

We affirm.

**Background**

K. Rajan is a pharmacist at the BZ Pharmacy in Harris County, Texas. While he was alone in the pharmacy, three men entered the store, and one of the men pointed a firearm at him as they robbed the pharmacy of money, mediations, and various items from the pharmacy safe. Fingerprints recovered during the police investigation were linked to Allen, who was later convicted of aggravated robbery with a deadly weapon. The jury assessed punishment at 25 years' confinement.

In the judgment of conviction, the trial court ordered Allen to pay court costs, *799which included a $200 charge for "summoning witness/mileage."4 He appeals.

**Jurisdiction**

In his first issue, Allen argues that the trial court, the 337th District Court of Harris County, Texas, lacked jurisdiction over this case because the underlying indictment was presented to the grand jury of the 230th District Court of Harris County, Texas. The State asserts that Allen waived his complaint by not first raising this procedural matter in the trial court.

The Code of Criminal Procedure sets forth the organization and duties of a grand jury. *See* TEX. CODE CRIM. PROC . arts. 19.01 - 20.22. A trial court forms, impanels, and empowers a grand jury to inquire into indictable offenses, including aggravated robbery with a deadly weapon. *See* TEX. CODE CRIM. PROC . art. 20.09 ("The grand jury shall inquire into all offenses liable to indictment of which any member may have knowledge, or of which they shall be informed by the attorney representing the State, or any other credible person."); *Ex parte Edone* , 740 S.W.2d 446, 448 (Tex. Crim. App. 1987) ("Once formed and impaneled by the district judge, the grand jury shall inquire into all offenses liable to indictment" (internal quotations omitted) ); *Davis v. State* , 519 S.W.3d 251, 254 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd). Because a grand jury's deliberations are secret, it retains a "separate and independent nature from the court." *Ex parte Edone* , 740 S.W.2d at 448.

After hearing testimony, a grand jury then votes concerning the presentment of an indictment.5*See* TEX. CODE CRIM. PROC . art. 20.19 ("After all the testimony which is accessible to the grand jury shall have been given in respect to any criminal accusation, the vote shall be taken as to the presentment of an indictment...."); *Bourque v. State* , 156 S.W.3d 675, 678 (Tex. App.-Dallas 2005, pet. ref'd) (grand jury "hears all the testimony available before voting on whether to indict the accused").

If "nine grand jurors concur in finding the bill," the State prepares the indictment and the grand jury foreman signs it and delivers it to the judge or the clerk of the court. TEX. CODE CRIM. PROC . arts. 20.19 -.21; *Bourque* , 156 S.W.3d at 678. An indictment is considered " 'presented' when it has been duly acted upon by the grand jury and received by the court." TEX. CODE CRIM. PROC . art. 12.06 ; *see**Henderson v. State* , 526 S.W.3d 818, 819 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd). Thus, presentment occurs when an indictment is delivered to either the judge or the clerk of the court. TEX. CODE CRIM. PROC . art. 20.21 ; *State v. Dotson* , 224 S.W.3d 199, 204 (Tex. Crim. App. 2007).

The district clerk for each county "is *the* clerk of the court for all the district courts in that county." *Henderson* , 526 S.W.3d at 820 (quoting *Ex parte Alexander* , 861 S.W.2d 921, 922 (Tex. Crim. App. 1993), *superseded by statute on other grounds as stated in**Ex parte Burgess* , 152 S.W.3d 123, 124 (Tex. Crim. App. 2004) ). "The fact that a signed indictment features an original file stamp of the district clerk's office is strong evidence that a returned indictment was 'presented' to the court clerk within the meaning of Article 20.21." *Dotson* , 224 S.W.3d at 204 (because indictment "bears an original file stamp, *800that fact convincingly shows the presentment requirement was satisfied"). Once an indictment is presented, jurisdiction vests with the trial court. TEX. CONST . art. V, § 12 (b); *Dotson* , 224 S.W.3d at 204.

All state district courts within the same county have jurisdiction over cases in that county, and criminal district courts have original jurisdiction over felony criminal cases in that county. *See* TEX. CODE CRIM. PROC . art. 4.05 ; TEX. GOV'T CODE § 74.094 ; *Henderson* , 526 S.W.3d at 820 ; *Davis* , 519 S.W.3d at 254. In counties having two or more district courts, the judges of the courts "may adopt rules governing the filing and numbering of cases, the assignment of cases for trial, and the distribution of the work of the courts as in their discretion they consider necessary or desirable for the orderly dispatch of the business of the courts." TEX. GOV'T CODE § 24.024 ; *see id.* § 74.093 (addressing adoption of local rules of administration to provide, in part, for assignment, docketing, transfer, and hearing of all cases); *Henderson* , 526 S.W.3d at 820 ; *Davis* , 519 S.W.3d at 255.

In multi-court counties, such as Harris County, a specific district court may impanel a grand jury, but it does not necessarily follow that all cases considered by that court's grand jury are assigned to that court. *See**Henderson* , 526 S.W.3d at 820 ; *Davis* , 519 S.W.3d at 255 ("If a grand jury in one district court returns an indictment in a case, the case nevertheless may be then assigned to any district court within the same county."); *Hernandez v. State* , 327 S.W.3d 200, 204 (Tex. App.-San Antonio 2010, pet. ref'd) ; *Bourque* , 156 S.W.3d at 678 ; *Tamez v. State* , 27 S.W.3d 668, 670 n.1 (Tex. App.-Waco 2000, pet. ref'd) (noting that "the judges of the Harris County district courts exercising criminal jurisdiction have adopted a procedure by which indictments are filed in each court on a rotating basis without reference to the court which empaneled the grand jury presenting the indictments"); *see also**Shepherd v. State* , No. 01-16-00748-CR, 2017 WL 2813165, at *1 (Tex. App.-Houston [1st Dist.] June 29, 2017, pet. ref'd) (mem. op., not designated for publication). In other words, one court may impanel a grand jury, and if an indictment is presented, the case may be filed in another court of competent jurisdiction within the same county. *See**Aguillon v. State* , No. 14-17-00002-CR, 2017 WL 3045797, at *2 (Tex. App.-Houston [14th Dist.] July 18, 2017, pet. ref'd) (mem. op., not designated for publication); *Cannon v. State* , No. 05-13-01109-CR, 2014 WL 3056171, at *4 (Tex. App.-Dallas July 7, 2014, no pet.) (mem. op., not designated for publication); *Thornton v. State* , No. 05-13-00610-CR, 2014 WL 2946457, at *3 (Tex. App.-Dallas May 6, 2014, no pet.) (mem. op., not designated for publication).

The 230th and 337th District Courts are both criminal district courts in Harris County, Texas. They both share the same clerk, i.e., the Harris County District Clerk, and have original jurisdiction in felony criminal cases. On November 6, 2015, the State filed in the 337th District Court a complaint, alleging that Allen committed the offense of armed robbery. A month later, the grand jury returned a true bill of indictment concerning the same conduct. *See* TEX. CONST . art. V, § 12 (b); TEX. CODE CRIM. PROC . art. 21.02 (setting out requirements of indictment); *State v. Smith* , 957 S.W.2d 163, 164-65 (Tex. App.-Austin 1997, no pet.) (describing "constitutional requisites for an indictment"). That indictment was presented to the Harris County District Clerk, as demonstrated by the clerk's original file stamp, and filed in the 337th District Court, the trial court where the State's complaint was originally filed. *See**Shepherd* , 2017 WL 2813165, at *1 ("After the grand jury votes concerning *801presentment of an indictment, the State can file in any court that has jurisdiction over the case.").

As additional evidence that the indictment was acted upon by the grand jury and presented to, or received by, the 337th District Court, the grand jury foreman signed the indictment, the trial court directed the State to read the indictment to Allen in open court pretrial, and it accepted Allen's plea of "not guilty." *See**Henderson* , 526 S.W.3d at 820 ("Logically, [defendant]'s arraignment ... could not have occurred in the 177th District Court if the trial court had not actually received the indictment."); *see also* TEX. CODE CRIM. PROC . art. 12.06 (stating presentment occurs when indictment "has been duly acted upon by the grand jury and received by the court"). Thus, the 337th District Court was properly vested with jurisdiction over Allen. *See* TEX. CODE CRIM. PROC . arts. 4.05, 4.16 ; *see also**Aguillon* , 2017 WL 3045797, at *2 (although amended indictment signed by foreman of grand jury impaneled by 177th District Court, 184th District Count had jurisdiction when amended indictment refiled in 184th District Court, which had "first-filed related case"); *Helsley v. State* , 2017 WL 931707, at *2 (Tex.App.-Amarillo 2017) (stating that when evidence of presentment appears in record, trial court has jurisdiction to try defendant for charges encompassed by indictment); *Williams v. State* , No. 06-14-00224-CR, 2015 WL 4071542, at *4 (Tex. App.-Texarkana July 6, 2015, no pet.) (mem. op., not designated for publication) (although indictment was presented by grand jury impaneled by 291st District Court, case was first filed in 282nd District Court, which obtained jurisdiction); *Paz v. State* , No. 05-14-01127-CR, 2015 WL 6386424, at *10 (Tex. App.-Dallas Oct. 22, 2015, no pet.) (mem. op., not designated for publication) ("Jurisdiction over felony cases, such as this case, lies in the district court or criminal district court where the indictment is first filed.").

Allen argues that a grand jury impaneled by one trial court cannot present an indictment to a different trial court because a grand jury serves one particular court. However, this Court has expressly rejected this argument on at least four previous occasions. *See**Henderson* , 526 S.W.3d at 819-21 (rejecting argument 177th District Court of Harris County, Texas never acquired jurisdiction over defendant because grand jury from 182nd District Court of Harris County, Texas presented indictment); *Shepherd* , 2017 WL 2813165, at *1 ; *Hernandez v. State* , No. 01-15-00837-CR, 2017 WL 1416877, at *2 (Tex. App.-Houston [1st Dist.] Apr. 20, 2017, pet. ref'd) (mem. op., not designated for publication) (rejecting argument that 263rd District Court of Harris County, Texas, lacked jurisdiction because grand jury of 184th District Court of Harris County, presented indictment); *Davis* , 519 S.W.3d at 254-56 (rejecting similar argument). We have repeatedly held that a trial court is not deprived of jurisdiction over a criminal defendant in these circumstances. *See, e.g.* , *Henderson* , 526 S.W.3d at 819-21 ; *Shepherd* , 2017 WL 2813165, at *1 ; *Hernandez* , 2017 WL 1416877, at *2 ; *Davis* , 519 S.W.3d at 254-56. Our sister court has likewise rejected this argument. *Johnson v. State* , No. 14-16-00658-CR, --- S.W.3d ----, ----, 2018 WL 1476275, at *2 (Tex. App.-Houston [14th Dist.] Mar. 27, 2018, no pet. h.) ; *see**Hines v. State* , No. 05-17-00416-CR, 2017 WL 6276005, at *1 (Tex. App.-Dallas Dec. 11, 2017, no pet.) (same).

Moreover, Allen's arguments raise a procedural issue related to his indictment. *See**Henderson* , 526 S.W.3d at 821 ; *Shepherd* , 2017 WL 2813165, at *1 ; *Hernandez* , 2017 WL 1416877, at *2 ; *Davis* , 519 S.W.3d at 254-56. Although a jurisdictional *802defect in an indictment may be challenged for the first time on appeal, a procedural deficiency may not. *See**Fingold v. Cook* , 902 S.W.3d 579, 480 (Tex.App.-Hous. [1st Dist.] 1995) ; *Henderson* , 526 S.W.3d at 821 ; *Davis* , 519 S.W.3d at 256 ; *see also**Mosley v. State* , 172 Tex.Crim. 117, 354 S.W.2d 391, 393-94 (Tex. Crim. App. 1962) ; *Lemasurier v. State* , 91 S.W.3d 897, 899-900 (Tex. App.-Fort Worth 2002, pet. ref'd) (holding defendant waived error regarding procedural deficiency with indictment by failing to timely file plea to jurisdiction). Allen did not object to the indictment or the proceedings in the trial court.

Accordingly, we hold that the trial court had jurisdiction over this case and Allen's failure to object to the indictment or the proceedings in the trial court constitutes a waiver of his right to challenge any procedural irregularity related to his indictment on appeal. *See**Henderson* , 526 S.W.3d at 819-21 ; *Hernandez* , 2017 WL 1416877, at *2.

We overrule Allen's first issue.

**"Summoning Witness/Mileage" Fee**

In his second issue, Allen argues that the "summoning witness/mileage" fee assessed against him by the trial court is (1) facially unconstitutional because it violates the separation-of-powers clause of the Texas Constitution and (2) unconstitutional as applied to him because it violates his constitutional rights to compulsory process and confrontation. *See* U.S. CONST . amend. VI ; TEX. CONST . art. I, § 10 (rights to compulsory process and confrontation), TEX. CONST . art. II, § 1 (separation of powers); *see also* TEX. CODE CRIM. PROC . art. 1.05.

**A. Reviewing a facial challenge**

Whether a criminal statute is constitutional is a question of law we review de novo. *Ex parte Lo* , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013) ; *Maloney v. State* , 294 S.W.3d 613, 626 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd). When reviewing a statute's constitutionality, 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**Rodriguez v. State* , 93 S.W.3d 60, 69 (Tex. Crim. App. 2002) (stating that appellate court addressing challenge to statute's constitutionality must presume that statute is valid and legislature has not acted unreasonably or arbitrarily); TEX. GOV'T CODE § 311.021 (noting that courts presume "compliance" with Texas and United States Constitutions). We must uphold the statute if we can apply a reasonable construction that will render it constitutional. *Ely v. State* , 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.] 1979) ; *see**Maloney* , 294 S.W.3d at 626 (if statute can be interpreted in two ways, one of which sustains its validity, we apply interpretation sustaining its validity). The party challenging the statute has the burden to establish its unconstitutionality. *Rodriguez* , 93 S.W.3d at 69 ; *Maloney* , 294 S.W.3d at 626.

"A facial challenge is an attack on the statute itself as opposed to" its application under a particular set of circumstances. *Salinas v. State* , 523 S.W.3d 103, 106 (Tex. Crim. App. 2017). 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 ; *see**Horhn v. State* , 481 S.W.3d 363, 372 (Tex. App.-Houston [1st Dist.] 2015, pet. ref'd). It is, therefore, "the most difficult challenge to mount successfully." *Santikos v. State* , 836 S.W.2d 631, 633 (Tex. Crim. App. 1992) ;

*803*Toledo v. State* , 519 S.W.3d 273, 279 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd).

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.

We first review Allen's facial challenge to Article 102.011

**B. Facial constitutionality of the "summoning witness/mileage" fee**

Upon his conviction, Allen was assessed a "summoning witness/mileage" fee of $200. Allen argues that the fee violates the separation-of-powers clause of the Texas Constitution and constitutes an impermissible tax collected by the judiciary because "the funds" received for the fee are "not directed by statute to be used for a criminal justice purpose." Instead, he argues, "the funds" are "directed towards the general revenue fund of the county ... in which the convicting court is located."

**1. Fees collected by courts as tax gatherers are unconstitutional**

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 ; *see**Meshell v. State* , 739 S.W.2d 246, 252 (Tex. Crim. App. 1987) (observing that this clause divides Texas government into legislative, executive, and judicial branches). "This division ensures that power granted one branch may be exercised by only that branch, to the exclusion of the others." *Ex parte Lo* , 424 S.W.3d at 28 ; *see**Gen. Servs. Comm'n v. Little-Tex Insulation Co.* , 39 S.W.3d 591, 600 (Tex. 2001) ("The separation-of-powers doctrine prohibits one branch of government from exercising a power inherently belonging to another branch."); *Meshell* , 739 S.W.2d at 252 (stating that "any attempt by one department of government to interfere with the powers of another is null and void." (internal quotations omitted) ).

The separation-of-powers clause is violated "when one branch of government assumes or is delegated a power more properly attached to another branch." *Ex parte Lo* , 424 S.W.3d at 28 (internal quotations omitted); *see**Salinas v. State* , 523 S.W.3d 103, 106-07 (Tex. Crim. App. 2017). Texas courts have addressed a number of separation-of-powers challenges to statutes that require trial courts to assess various fees as court costs as part of criminal convictions. *See, e.g.* , *Salinas* , 523 S.W.3d at 108-10 ; *Peraza v. State* , 467 S.W.3d 508 (Tex. Crim. App. 2015) ; *Ex Parte Carson* , 143 Tex.Crim. 498, 159 S.W.2d 126 (Tex. Crim. App. 1942).

A court's assessment of fees as part of court costs in a criminal case violates the separation-of-powers clause when a court is delegated the executive branch's power to collect taxes. *Salinas* , 523 S.W.3d at 106-07 ; *Peraza* , 467 S.W.3d at 517. On the other hand, a court's assessment is a proper judicial function when "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." *Salinas* , 523 S.W.3d at 107, 109 n.26 (quoting *Peraza* , 467 S.W.3d at 517 ). In other words, a reviewing court must *804determine whether the fee is a disguised tax on a criminal defendant (which is unconstitutional) or a fee for a legitimate criminal justice purpose (which is constitutional). *See**Casas v. State* , 524 S.W.3d 921, 925-27 (Tex. App.-Fort Worth 2017, no pet.) ("Although courts may not operate as tax gatherers, which is a function reserved to the executive branch of government, courts may collect fees in criminal cases as part of its judicial function if" the fees reflect "legitimate criminal justice purposes."). "What constitutes a legitimate criminal justice purpose is a question to be answered on a statute-by-statute/case-by-case basis." *Salinas* , 523 S.W.3d at 107 ; *see**Peraza* , 467 S.W.3d at 518.

Before *Peraza* , which was decided in 2015, the standard in Texas was that a court cost had to be "necessary" and "incidental" to the trial of a criminal case to withstand a facial challenge to its constitutionality. *See**Peraza* , 467 S.W.3d at 517. The *Peraza* Court noted alternative formulations of the rule in other jurisdictions, including requiring that a court cost be "reasonably related to the costs of administering the criminal justice system," *id.* (discussing *State v. Claborn* , 870 P.2d 169 (Okla. Crim. App. 1994) ), or that there "be a 'direct relationship' between the type of offense" underlying the conviction and the cost of court being assessed, *id.* (discussing *State v. Young* , 238 So.2d 589 (Fla. 1970) ).

The *Peraza* Court concluded that the existing Texas standard of necessary/incidental was "too limiting" because there can be legitimate costs incurred in the administration of the criminal justice system that are beneficial to the system and worthy of recoupment even if they do not qualify as " 'necessary' or 'incidental' to the trial of a criminal case." *Id.* The *Peraza* Court rejected having a narrow requirement that the costs be " 'necessary' and 'incidental' to the trial of a criminal case" because such a standard "ignores the legitimacy of costs that, although not necessary to, or an incidental expense of, the actual trial of a criminal case, may nevertheless be directly related to the recoupment of costs of judicial resources expended in connection with the prosecution of criminal cases within our criminal justice system," given that "the prosecution of criminal cases and our criminal justice system have greatly evolved" to include advantageous processes that exceed the bare minimum of necessity. *Id.* at 517. Instead, the *Peraza* Court expanded the body of fees that could survive a facially unconstitutional challenge to include those assessed under a statute that "provides for an allocation ... to be expended for legitimate criminal justice purposes" in the future, untied to the specific expenses incurred in "the actual trial of a criminal case." *Id.* (again, noting that legitimate criminal justice purpose is one that "relates to the administration of our criminal justice system").

Under *Peraza* 's broader rule, a statute that requires a convicted defendant to pay court costs that are "to be expended for legitimate criminal justice purposes" in the future is constitutional even if those costs do not arise out of that particular defendant's prosecution and have no direct relationship to that particular type of prosecution, so long as the costs are "directly related to the recoupment of costs of judicial resources expended in connection with the prosecution of criminal cases within our criminal justice system." *See id.*

By concluding that the *Carson* standard was "too limiting" and expanding the category of costs that can be properly assessed, *Peraza* suggests that a statute that requires a convicted defendant to reimburse the State for court costs that have already been "incurred in the administration of the criminal justice system" in that *805prosecution remain proper and facially valid. *Id.* at 517 ; *see**id.* at 510 (describing that appellant's constitutional challenge as focused on how assessed court costs "are to be disbursed"). We, therefore, interpret *Peraza* as holding that at least two types of fees assessed as court costs are constitutionally permissible: (1) court costs to reimburse criminal justice expenses incurred in connection with that criminal prosecution and (2) court costs to be expended in the future to off-set future criminal-justice costs. *Id.* at 517-18.

After *Peraza* , the Court issued *Salinas* , in which it explained that whether a future allocation relates to the administration of our criminal justice system depends on "what the governing statute says about the intended use of the funds, not whether [the] funds are actually used for a criminal justice purpose." 523 S.W.3d at 107, 109 n.26 ; *see**Casas* , 524 S.W.3d at 926. In other words, the relevant statute must direct "that the funds be used for something that is a legitimate criminal justice purpose; it is not enough that some of the funds may ultimately benefit someone who has some connection with the criminal justice system." *Salinas* , 523 S.W.3d at 109 n.26.

In *Salinas* , the Court addressed two fees that were part of a "consolidated court cost" fee assessed by Local Government Code section 133.102. The collected fees were directed to two accounts: (1) the "comprehensive rehabilitation" account and (2) the "abused children's counseling" account. The fees were not directly related to costs that had been incurred in that defendant's criminal matter. Nor were they limited in their future uses to costs to be incurred for criminal justice purposes. The Court held that the two fees violated the separation-of-powers clause of the Texas Constitution. 523 S.W.3d at 105, 108-110 & n.26.

In addressing these fees, which were collected for a future use untied to that particular criminal prosecution, the Court focused on how the statute required the fees to be spent. The portion of the statute concerning the "comprehensive rehabilitation" account did not, "on its face, appear to serve a legitimate criminal justice purpose." *Id.* at 108. It did not, for example, restrict rehabilitation services to "anything relating to criminal justice." *Id.* Nor did the statute require that the government agency provide rehabilitation services only to crime victims. *Id.* Similarly, the account into which the fees were deposited was not restricted to criminal justice. The fund's constitutionality was not saved by the fact that the physical injuries that might require rehabilitation services "could easily" be "caused by a crime." *Id.* The Court concluded that the account did not qualify as an allocation of funds "to be expended for legitimate criminal justice purposes." *Id.* at 109.6

The Court held similarly with regard to the funds allocated to the "abused children's counseling" account. *Id.* Monies from this account were deposited into the State's general revenue fund. *Id.* at 110. The Court refused to uphold the funding's constitutionality "on the basis of its name" given that, through legislative action, the collected fee no longer funded a counseling program for abused children and, instead, went directly to the state's "general revenue" account. *Id.*

With no connection to past incurred expenses in that particular prosecution or future criminal justice expenditures, the statute imposing the fees was held to be facially unconstitutional. *See**806*id.* at 109 & n.26 ; *Toomer v. State* , No. 02-16-00058-CR, 2017 WL 4413146, at *3 (Tex. App.-Fort Worth Oct. 5, 2017, no pet. h.) (mem. op.); *Casas* , 524 S.W.3d at 927 (because "[n]either the statute authorizing the collection of the emergency-services cost nor its attendant statutes direct the funds to be used for a legitimate, criminal-justice purpose; ... it is a tax that is facially unconstitutional"); *see also**Peraza* , 467 S.W.3d at 517 (holding that, "if [a] statute under which court costs are assessed ... provides for an allocation of ... 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").

*Salinas* did not involve court costs directly related to the trial of that particular case. And, while *Peraza* expanded the category of costs that would be facially constitutional and *Salinas* explained the standard for concluding that a future allocation relates to the administration of our criminal justice system, neither case, individually or collectively, explicitly address whether a court cost linked to an expense incurred in the past in the criminal prosecution of the defendant and collected to reimburse the cost of actually expended judicial resources must also be specifically directed to a future use that is a criminal justice purpose. *Toomer* , 2017 WL 4413146, at *3-4. But that is the type of court cost being challenged here: a fee to recoup criminal justice expenses actually incurred during the prosecution of that particular criminal defendant.

Another distinguishable fee case is *Hernandez v. State* , No. 01-16-00755-CR, 562 S.W.3d 500, 2017 WL 3429414 (Tex. App.-Houston [1st Dist.] Aug. 10, 2017, no pet. h.) (motion for rehearing pending). In *Hernandez* , a panel of this court held that a $25 "district attorney fee" was unconstitutional "to the extent it allocate[d] funds to the county's general fund because those funds allow[ed] spending for" any purpose. *Id.* at 511, 2017 WL 3429414 at *7. The appellant argued that the $25 fee was unconstitutional because of the way it would be spent after its collection. The State, in its brief, likewise focused on the manner in which the fee would be spent in the future, arguing that "so long as the funds *can* be spent," at a later time, on a legitimate criminal justice purpose, the fee does not violate *Peraza* .

Neither party argued-and the *Hernandez* opinion did not analyze-whether the fee could survive a constitutional challenge looking back to the source of the fee versus looking forward to how the collected fee might be spent, but *Peraza* supports such an analysis: *Peraza* states that court costs are "intended by the Legislature" to allow for a "recoupment of the costs of judicial resources expended in connection with the trial of the case," *id.* at 517 (quoting *Weir v. State* , 278 S.W.3d 364, 366 (Tex. Crim. App. 2009) ), and it holds that permissible "court costs should be related to the recoupment of costs of judicial resources." *Id.* That language controls our analysis of the constitutionality of a "summoning witness/mileage" fee assessed to recoup out-of-pocket expenses incurred in the prosecution of the convicted defendant who was assessed the fee being challenged.

In sum, the parties in *Hernandez* focused solely on whether the $25 fee fell within the *Peraza* expansion covering fees that, "although not" involved in "the actual trial of a criminal case, may nevertheless be directly related to the recoupment of costs of judicial resources." Because the fee here is an actual recoupment of out-of-pocket expenses incurred in this particular case, it is different from the fee in *Hernandez* , and *Hernandez* , therefore, does *807not direct the outcome of this fee challenge.

**2. The fee challenged in this appeal**

The $200 fee Allen challenges was imposed under Article 102.011, which provides as follows:

> (a) A defendant convicted of a felony or a misdemeanor shall pay the following fees for services performed in the case by a peace officer: ... (3) $5 for summoning witness ... and....

> (b) ... 29 cents per mile for mileage required of an officer to perform a service listed in this subsection and to return from performing that service....

TEX. CODE CRIM. PROC . art. 102.011(a)(3), (b).

**3. The challenged fee is for a direct expense incurred by the State**

Allen contends that the "summoning witness/mileage" fee assessed against criminal defendants, including Allen, pursuant to Texas Code of Criminal Procedure article 102.011(a)(3) and (b), is facially unconstitutional because *Salinas* holds that a statute that does not specifically identify a judicial purpose to which the fees are to be directed violates the separation-of-powers clause.

Admittedly the statute assessing these fees, like the statute in *Salinas* , does not require that the fee be deposited into a specific account for future criminal justice expenses. But unlike the fee in *Salinas* , the "witness summoning/mileage" fee is an expense incurred by the State in the prosecution of this particular case and is unquestionably for a legitimate criminal justice purpose. *See**Salinas* , 523 S.W.3d at 107, 109 n.26. The *Salinas* Court refused to uphold the constitutionality of the "abused children's counseling" fee that was not directly related to the particular criminal case on appeal from a conviction for assault of an elderly person. *Id.* at 105. And, unlike the "comprehensive rehabilitation" account, which did "not, on its face, appear to serve a legitimate criminal justice purpose," this "witness summoning/mileage" fee does.

*Salinas* did not address reimbursement-based court costs. For this reason, we conclude that *Salinas* does not apply to the "witness summoning/mileage" fee.7 We conclude that *Peraza* 's reasoning is more appropriately applied to this fee because the State is not relying on how the fee will be expended in the future, but, instead, on the recoupment of actual expenses incurred as part of this case. And *Salinas* does not purport to limit or modify *Peraza* 's focus on whether the fees are incurred as a direct result of or reasonably related to the "recoupment of costs of judicial resources," which this fee unquestionably was. *Peraza* , 467 S.W.3d at 517.

Allen also relies on the Office of Court Administration's website which shows that, in regard to Article 102.011(a)(3) and (b), "100% of the money" collected from the "summoning witness/mileage" fee remains "with the county or city which the [c]ourt serves" and is directed to that county's or city's "General Fund." *See* Office of Court Administration, *Study of the Necessity of Certain Court Costs and Fees in Texas* (Sept. 1, 2014), at 12, 51 in Criminal Court Costs Section (Fee No. 26, "Peace Officer Fee-Summoning a Witness"; Fee No. 118, "Peace Officer Fee-Mileage"), http://www.txcourts.gov/media/495634/SB1908-Report-FINAL.pdf. *Id.* And because the *808funds received from the "summoning witness/mileage" fee are "directed to the General Fund (at both the State and local level)," they "need not be spent only on law enforcement [purposes]." *Id.*

We are not persuaded that this report establishes that the statute imposing this fee is unconstitutional for two reasons. First, the *Salinas* Court emphasized the limited value of an OCA report that was not part of the record in the trial court.8 Second, and more importantly, we have already held that the Legislature's failure to require that the monies be deposited into a segregated account does not make the courts tax gatherers when the fee is directly tied to reimbursement for past judicial expenses incurred in the case.

We conclude that Article 102.011(a)(3) and (b) are not facially unconstitutional.

**C. As-applied constitutionality of fee**

Allen next argues that the $200 "summoning witness/mileage" fee is unconstitutional as applied to him because it violates his constitutional rights to compulsory process and confrontation. *See* U.S. CONST . amend. VI ; TEX. CONST . art. I, § 10 (rights to compulsory process and confrontation); *see also* TEX. CODE CRIM. PROC . art. 1.05 ; TEX. R. APP. P . 47.1.

In an as-applied constitutional challenge, the challenger concedes the general constitutionality of the statute but asserts that the statute is unconstitutional as applied to his particular facts and circumstances. *State ex rel. Lykos v. Fine* , 330 S.W.3d 904, 910 (Tex. Crim. App. 2011). To prevail on this claim, it is not sufficient to show that the statute may be unconstitutional as to others; instead, it must be unconstitutional as applied to the challenger. *Id.* A reviewing court must review the particular facts and circumstances of the case based on the record from the trial court. *Id.* Arguments based on the statute's hypothetical application are not relevant to an as-applied challenge. *London v. State* , 526 S.W.3d 596, 599 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd).

We have previously rejected the same as-applied challenge in a similar case. *Id.* In *London* , we observed that the defendant failed to identify additional witnesses he could or would have called or any reason the statute is unconstitutional as applied to him in particular. *Id.* The same is true here.

We overrule Allen's second issue.

**Conclusion**

We affirm the judgment.

2

*See* Tex. Penal Code § 29.03(a)(2).

3

*See* Tex. Code Crim. Proc . art. 102.011(a)(3), (b) (imposing $5 charge on defendant convicted of felony "for summoning [each] witness" and requiring defendant to pay "29 cents per mile for mileage required of an officer to perform a service ... and to return from performing that service").

4

*See id.*

5

An indictment is "a written instrument presented to a court by a grand jury charging a person with the commission of an offense." Tex. Const . art. V, § 12 (b); *see* Tex. Code Crim. Proc . art. 21.02 (setting out requirements of indictment).

6

Since *Salinas* , the Court has reiterated that the "comprehensive rehabilitation" court cost is unconstitutional. *See**Johnson v. State* , 537 S.W.3d 929 (Tex. Crim. App. 2017).

7

The Fourteenth Court of Appeals has reached a different conclusion and held the fee unconstitutional. *See**Johnson v. State* , No. 14-16-00658-CR, --- S.W.3d ----, ----, 2018 WL 1476275, at *4 (Tex. App.-Houston [14th Dist.] Mar. 27, 2018, no pet. h.). *Johnson* is pending rehearing before that court.

8

While the Court cited government websites in its discussion of the facial constitutionality challenge to the "abused children's counseling" fee, it specifically stated that it was not relying on the website but referring to it because it "simply illustrates the consequences of the Legislature's" failure to direct that the money "be used for a criminal justice purpose." *Salinas* , 523 S.W.3d at 110 n.36. Because courts in a facial constitutionality challenge must "consider the statute only as it is written, rather than how it [may operate] in practice," it is improper for us to consider the actual use of the funds.

Jennings, J., dissenting.

En banc reconsideration was requested. See Tex. R. App. P. 49.7.

The en banc court has unanimously voted to deny the motion for en banc reconsideration.

En banc court consists of Chief Justice Radack and Justices Jennings, Keyes, Higley, Bland, Massengale, Brown, Lloyd, and Caughey.

**DISSENTING OPINION ON REHEARING**

Terry Jennings, Justice

***[O]ur clerks of court should not be made tax collectors for our state, nor****809***should the threshold to our justice system be used as a toll booth to collect money for random programs created by the legislature.***1

A jury found appellant, Ruben Lee Allen, guilty of the offense of aggravated robbery with a deadly weapon.2 After finding true the allegation in an enhancement paragraph that he had previously been convicted of a felony offense, the jury assessed his punishment at confinement for twenty-five years. In the judgment of conviction, the trial court ordered appellant to pay court costs, "[a]s [a]ssessed," which included a $200 charge for "Summoning Witness/Mileage."3 In his second issue, appellant contends that the "Summoning Witness/Mileage" fee assessed against him is unconstitutional.

Because the majority, on rehearing, errs in holding that appellant has not met his burden of establishing the unconstitutionality of Texas Code of Criminal Procedure article 102.011(a)(3) and (b), I respectfully dissent.

**"Summoning Witness/Mileage" Fee**

In his second issue, appellant argues that the $200 "Summoning Witness/Mileage" fee assessed against him, an indigent criminal defendant, by the trial court is (1) facially unconstitutional because it violates the Separation of Powers clause of the Texas Constitution and (2) unconstitutional as applied to him because it violates his constitutional rights to compulsory process and confrontation.4*See* U.S. CONST . amend. VI ; TEX. CONST . art. I, § 10 (rights to compulsory process and confrontation), TEX. CONST . art. II, § 1 (Separation of Powers clause); *see also* TEX. CODE CRIM. PROC. ANN . art. 1.05 (Vernon 2005).

We review the constitutionality of a criminal statute de novo as a question of law. *Ex parte Lo* , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013) ; *Maloney v. State* , 294 S.W.3d 613, 626 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd). When presented with a challenge to the constitutionality of a statute, we presume that the statute is valid and the legislature did not act unreasonably or arbitrarily. *Rodriguez v. State* , 93 S.W.3d 60, 69 (Tex. Crim. App. 2002) ; *Maloney* , 294 S.W.3d at 626. The party challenging the statute has the burden to establish its unconstitutionality. *Rodriguez* , 93 S.W.3d at 69 ; *Maloney* , 294 S.W.3d at 626. We must uphold the statute if we can apply a reasonable construction that will render it constitutional.

*810*Ely v. State* , 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.] 1979) ; *see also**Maloney* , 294 S.W.3d at 626 (if statute can be interpreted in two different ways, one of which sustains its validity, we apply interpretation sustaining its validity).

"A facial challenge to a statute is the most difficult challenge to mount successfully" because it is an attack on the statute itself, rather than a particular application of it. *Santikos v. State* , 836 S.W.2d 631, 633 (Tex. Crim. App. 1992) ; *Toledo v. State* , 519 S.W.3d 273, 279 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd). To prevail on a facial challenge to a statute, the challenging party must establish that no set of circumstances exists under which the statute would be constitutionally valid. *State v. Rosseau* , 396 S.W.3d 550, 557 (Tex. Crim. App. 2013) ; *see also**Horhn v. State* , 481 S.W.3d 363, 372 (Tex. App.-Houston [1st Dist.] 2015, pet. ref'd).

Appellant argues that the "Summoning Witness/Mileage" fee assessed against him, an indigent criminal defendant, by the trial court, violates the Separation of Powers clause of the Texas Constitution and constitutes an impermissible tax collected by the judiciary because "the funds" received from criminal defendants for the fee are "not directed by statute to be used for a criminal justice purpose." Instead, "the funds" are "directed towards the general revenue fund of the county" "in which the convicting court is located."

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 ; *see also**Meshell v. State* , 739 S.W.2d 246, 252 (Tex. Crim. App. 1987) ("[This] single, tersely phrased paragraph, provides that the constitutional division of the government into three departments (Legislative, Executive and Judicial) shall remain intact, 'except in the instances herein expressly permitted.' " (quoting TEX. CONST . art. II, § 1 ) ). "This division ensures that [the] power granted [to] one branch may be exercised by only that branch, to the exclusion of the others." *Ex parte Lo* , 424 S.W.3d at 28 ; *see also**Gen. Servs. Comm'n v. Little-Tex Insulation Co.* , 39 S.W.3d 591, 600 (Tex. 2001) ("The [S]eparation-of-[P]owers doctrine prohibits one branch of government from exercising a power inherently belonging to another branch."); *Meshell* , 739 S.W.2d at 252 ("[A]ny attempt by one department of government to interfere with the powers of another is null and void." (internal quotations omitted) ).

The Separation of Powers clause is violated "when one branch of government assumes or is delegated a power more properly attached to another branch." *Ex parte Lo* , 424 S.W.3d at 28 (internal quotations omitted); *see also**Salinas v. State* , 523 S.W.3d 103, 106-07 (Tex. Crim. App. 2017). A court is delegated a power more properly attached to the executive branch, rather than to the judiciary, where a statute turns the court into a "tax gatherer[ ]." *Salinas* , 523 S.W.3d at 107, 109 n.26 (quoting *Peraza v. State* , 467 S.W.3d 508, 517 (Tex. Crim. App. 2015) ) (explaining "[t]he issue is whether the fee in question is a court cost (which is allowed) or a tax (which is unconstitutional)").

However, the collection of fees by a court in a criminal case constitutes a judicial *811function, and thus does not violate the Separation of Powers clause of the Texas Constitution, where a "statute under which [a] court cost[ ] [is] assessed (or an interconnected statute) provides for an allocation of such [a] court cost[ ] to be expended for [a] legitimate criminal justice purpose[ ]." *Salinas* , 523 S.W.3d at 107, 109 n.26 (quoting *Peraza* , 467 S.W.3d at 517 ); *see also**Casas v. State* , 524 S.W.3d 921, 925-27 (Tex. App.-Fort Worth 2017, no pet.) ("Although courts may not operate as tax gatherers, which is a function reserved to the executive branch of government, courts may collect fees in criminal cases as part of [their] judicial function if the statute under which [the] court costs are assessed (or an interconnected statute) provides for an allocation of such [court] costs to be expended for legitimate criminal justice purposes." (internal quotations omitted) ).

"What constitutes a legitimate criminal justice purpose is a question to be answered on a statute-by-statute/case-by-case basis." *Salinas* , 523 S.W.3d at 107 ; *see also**Peraza* , 467 S.W.3d at 518. "And the answer to that question is determined by what [a] governing statute says about the intended use of the funds [collected from criminal defendants], not whether [the] funds are actually used for a criminal justice purpose." *Salinas* , 523 S.W.3d at 107, 109 n.26 ; *see also**Casas* , 524 S.W.3d at 926. In other words, in order to not run afoul of the Separation of Powers clause of the Texas Constitution, a statute that imposes a court cost on a criminal defendant must direct "that the funds [collected pursuant to that statute] be used for something that is a legitimate criminal justice purpose; it is not enough that some of the funds may ultimately benefit someone who has some connection with the criminal justice system." *Salinas* , 523 S.W.3d at 109 n.26.

As the Texas Court of Criminal Appeals has noted, "[w]hen a defendant is convicted in a criminal case, various statutes require [him to] pay[ ] [certain] fees as court costs." *Salinas* , 523 S.W.3d at 105 ; *see also**Johnson v. State* , 423 S.W.3d 385, 389 (Tex. Crim. App. 2014) ("Only statutorily authorized court costs may be assessed against a criminal defendant...."). Relevant to the instant case, article 102.011(a)(3) and (b) require a defendant "convicted of a felony or misdemeanor" to pay fees for certain services "performed ... by a peace officer," including "$5 for summoning [each] witness" and "29 cents per mile for mileage required of an officer to perform [the] service ... and to return from performing that service." TEX. CODE CRIM. PROC. ANN . art. 102.011(a)(3), (b) (Vernon 2018).

In *Salinas* , the court of criminal appeals held that Local Government Code section 133.102, which requires a person convicted of a criminal offense to pay a "Consolidated Court Cost" fee,5 violates the Separation of Powers clause of the Texas Constitution to the extent that it allocates funds received from criminal defendants to the "abused children's counseling" account.6

*812523 S.W.3d at 105, 109-110, 109 n.26 (internal quotations omitted). In doing so, the court explained that the funds received from criminal defendants for the "Consolidated Court Cost" fee that are allocated to the "abused children's counseling" account are actually "deposited in the [State's] General Revenue Fund." *Id.* at 110 (internal quotations omitted). Accordingly, the court concluded:

> We cannot uphold the constitutionality of funding [the "abused children's counseling"] 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.

*Id.* at 110 (emphasis added).

Essentially, the court of criminal appeals, in *Salinas* , explained that there are "limits" to the types of fees that the legislature "c[an] require the courts to collect" and "it [was simply] not enough that some of the funds [collected pursuant to the 'Consolidated Court Cost' fee] may ultimately benefit someone who has some connection with the criminal justice system." *Id.* at 109 n.26. Instead, the court held that where a statute fails "to *direct* the funds [collected from criminal defendants] to be used in a manner that would make it a court cost (i.e., for something that is a criminal justice purpose), th[at] statute operates unconstitutionally every time the fee is collected, making the statute unconstitutional on its face." *Id.* at 109 n.26, 110 n.36 ("The fee is unconstitutional because the funds are not directed by statute to be used for a criminal justice purpose.").

This Court, relying on the court of criminal appeals' decision in *Salinas* , has since addressed the issue of whether the $25 "[P]rosecutor's fee" assessed against a criminal defendant, pursuant to Texas Code of Criminal Procedure article 102.008(a), is facially unconstitutional because it violates the Separation of Powers clause of the Texas Constitution. *See**Hernandez v. State* , No. 01-16-000755-CR, 562 S.W.3d 500, 509-21, 2017 WL 3429414, at *6-7 (Tex. App.-Houston [1st Dist.] Aug. 10, 2017, no pet. h.).7 In doing so, we noted that article 102.008(a) requires "a defendant *813convicted of a misdemeanor" to pay "a fee of $25 for the trying of [his] case by the district or county attorney." *Id.* at 510, 2017 WL 3429414 at *6 (quoting TEX. CODE CRIM. PROC. ANN . art. 102.008(a) (Vernon 2018) ). However, article 102.008(a)"does not [actually] state where the [funds received from criminal defendants for the] $25 ['Prosecutor's] fee['] [are] to be directed." *Id.* ; *see* TEX. CODE CRIM. PROC. ANN . art. 102.008(a).

Instead, we noted that the Office of Court Administration's website shows that "100% of the money collected" for the "[P]rosecutor's fee" remains "with the [c]ounty (or the [c]ity)," which the court serves and "is directed to th[at] [c]ounty's (or [c]ity's) General Fund." *Hernandez* , 562 S.W.3d at 510, 2017 WL 3429414, at *6 (quoting 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 Costs Section (Fee No. 13, "Prosecutor's Fee"), http://www.txcourts.gov/media/495634/SB19 08-Report-FINAL.pdf (purpose of study, ordered by Senate Bill 1908, to "identif[y] each statutory law imposing a court fee or cost in a court in this state" and "[d]etermine whether each identified fee or cost is necessary to accomplish the stated statutory purpose") )8 ; *see also**Salinas* , 523 S.W.3d at 110 (noting, based on Texas Comptroller's website, funds collected pursuant to Local Government Code section 133.102 for "abused children's counseling" account "deposited in the [State's] General Revenue Fund"). And "[m]oney in a county's [or city's] general fund can be spent for 'any proper county [or city] purpose.' " *Hernandez* , 562S.W.3d at 510, 2017 WL 3429414, at *6 (quoting Tex. Att'y Gen. Op. No. JM-530 (1986) ).

Thus, relying on *Salinas* , we explained that "the constitutional infirmity" in *Hernandez* was that article 102.008(a) did not "*direct* the funds [collected from criminal defendants for the '[P]rosecutor's fee'] to be used in a manner that would make it a court cost (i.e., for something that is a criminal justice purpose)."9*Id.* at *7 (quoting *Salinas* , 523 S.W.3d at 109 n.26 ); *see also**Johnson v. State* , No. 14-16-00658-CR, --- S.W.3d ----, ---- - ----, 2018 WL 1476275, at *4-5 (Tex. App.-Houston [14th Dist.] Mar. 27, 2018, no pet. h.) ( Texas Code of Criminal Procedure article 102.004, imposing $40 fee on criminal defendant convicted by jury, "on its face[,] violates [S]eparation-of-[P]owers provision because the statute does not direct that the funds collected be expended for something that is a legitimate criminal-justice purpose"). And we concluded that article 102.008(a)"operates unconstitutionally every time the ['Prosecutor's] fee['] is collected," making the statute unconstitutional on its face. *Hernandez* , 562 S.W.3d at 511, 2017 WL 3429414, at *7 (quoting *Salinas* , 523 S.W.3d at 109 n.26 ). Further, we noted that although "some of the money collected" for the "[P]rosecutor's fee" "may ultimately *814be spent on something that would be a legitimate criminal justice purpose," this "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.* (quoting *Salinas* , 523 S.W.3d at 109 n.26 ).

Accordingly, we held that because article 102.008(a) does not direct that the funds received from criminal defendants for the $25 "[P]rosecutor's fee" be expended for a criminal justice purpose, the statute is unconstitutional in violation of the Separation of Powers clause, as "it allocates [the] funds [collected] to the ... general fund" of the county that the court serves and allows such funds to be spent "for purposes other than legitimate criminal justice purposes." *Id.* ; *see also**Salinas* , 523 S.W.3d at 109-10 ("We cannot uphold the constitutionality of funding th[e] ['abused children's counseling'] account ... when all the funds in the account go to [the State's] general revenue [fund]."); *Peraza* , 467 S.W.3d at 518 n.17 (agreeing "court costs should [generally] relate to the recoupment of judicial resources"); *Johnson* , --- S.W.3d ---- - ----, 2018 WL 1476275, at *4-5 (holding Code of Criminal Procedure article 102.004 unconstitutional, in violation of Separation of Powers clause, where it "fail[ed] to direct the funds collected to be used for something that is a legitimate criminal-justice purpose"); *Toomer v. State* , No. 02-16-00058-CR, 2017 WL 4413146, at *3 (Tex. App.-Fort Worth Oct. 5, 2017, pet. ref'd) (holding Code of Criminal Procedure article 102.0185 unconstitutional, in violation of Separation of Powers clause, because "[n]either the statute authorizing the collection of the emergency-services costs nor its attendant statutes direct the funds to be used for a legitimate, criminal-justice purpose"); *Casas* , 524 S.W.3d at 925-27 (holding Code of Criminal Procedure article 102.0185 unconstitutional, in violation of Separation of Powers clause, and noting "monies collected" from "emergency-services cost" allocated to general revenue fund); Tex. Att'y Gen. Op. No. JC-0158 (1999) ("Court fees that are used for general purposes are characterized as taxes, and a tax imposed on a litigant ... violat[es] ... the constitution."). Accordingly, we modified the trial court's judgment to delete the $25 "[P]rosecutor's fee" from the costs assessed against the criminal defendant. *Hernandez* , 562 S.W.3d at 510-21, 2017 WL 3429414, at *7.

Surprisingly, here, the majority concludes, unlike we did in *Hernandez* , that *Salinas* and its progeny are irrelevant to the instant case. And now, on rehearing, the majority strains to distinguish both *Hernandez* and *Salinas*10 so that it may hold that Texas Code of Criminal Procedure article 102.011(a)(3) and (b) are not facially unconstitutional.11 In doing so, the *815majority misinterprets the court of criminal appeals' decision in *Peraza* , which pre-dates *Salinas* , and fails to apply the correct legal standard pronounced in *Salinas* to the instant case.

In *Peraza* , the Texas Court of Criminal Appeals addressed whether a $250 "DNA record fee" assessed against a criminal defendant pursuant to Texas Code of Criminal Procedure article 102.020 was "an unconstitutional tax that violate[d] the [S]eparation of [P]owers clause under the Texas Constitution." 467 S.W.3d at 510-12. In its opinion, the court of criminal appeals explained that "court costs should be related to the recoupment of costs of judicial resources ... expended in connection with the prosecution of criminal cases within [the] criminal justice system." *Id.* at 517. And the court held that in order to determine whether a court cost assessed against a criminal defendant runs afoul of the Separation of Powers clause, the question is not whether "such costs [are] 'necessary' and 'incidental' to the trial of a criminal case," but rather whether a "statute under which [a] court cost[ ] [is] assessed (or an interconnected statute) provides for an allocation of such [a] court cost[ ] to be expended for [a] legitimate criminal justice purpose[ ]." *Id.* at 517-18. "A criminal justice purpose is one that relates to the administration of our criminal justice system," and "[w]hether a criminal justice purpose is 'legitimate' is a question to be answered on a statute-by-statute/case-by-case basis." *Id.*

Utilizing the above standard, the court of criminal appeals, in *Peraza* , went on to hold that the criminal defendant in that case had not met his burden of establishing that Texas Code of Criminal Procedure article 102.020, which imposes the "DNA record fee," could not operate constitutionally under any circumstance. *Id.* at 521. Thus, the court held that article 102.020 was not facially unconstitutional in violation of the Separation of Powers clause of the Texas Constitution.12*Id.*

Following *Peraza* , the court of criminal appeals in *Salinas* , as previously discussed, addressed the constitutionality, under the Separation of Powers clause, of Local Government Code section 133.102, which assesses a $133 "Consolidated Court Cost" fee against criminal defendants. 523 S.W.3d at 105-10, 113. There, the court looked at whether "some of the funds [received] from the ['C]onsolidated [Court Cost'] fee [were] statutorily apportioned to accounts[, namely, the 'comprehensive rehabilitation' account and the 'abused children's counseling' account] that d[id] not *816serve legitimate criminal justice purposes." *Id.* at 105-07 (noting "[t]he question here is whether the two accounts at issue ('abused children's counseling' and 'comprehensive rehabilitation') meet the requirement that the relevant statutes provide for the allocation of funds 'to be expended for legitimate criminal justice purposes' "). The court ultimately concluded that the funds collected from criminal defendants and allocated to the "comprehensive rehabilitation" account and the "abused children's counseling" account did not qualify as funds to be expended for legitimate criminal justice purposes; and, thus, the court held that, to the extent that Local Government Code section 133.102 allocates funds to those accounts, the statute is facially unconstitutional. *Id.* at 106-10, 113. Notably, in doing so, the court twice emphasized, using broad language, that section 133.102 was unconstitutional because the statute "*fail[ed] to direct the funds to be used in a manner that would make it a court cost (i.e., for something that is a criminal-justice purpose).* " *Id.* at 109 n.26, 110 n.36 (emphasis added).

Although the majority, here, would like to assert that *Salinas* is different from the instant case, it, by doing so, fails to recognize the court of criminal appeals' use of broad language in *Salinas* and the fact that the court did not limit its holding to the circumstances of that case. *See**id.* 106-10, 109 n.26, 110 n.36; *see also**Johnson* , --- S.W.3d ----, 2018 WL 1476275, at *4 (recognizing "broad language" employed by *Salinas* court and applying *Salinas* legal standard to "statute [that] is silent as to the allocation of the court costs collected" from criminal defendants). Instead, what is clear after the court of criminal appeals' decision in *Salinas* is that our Court must apply the legal standard utilized in that case (as well as *Peraza* ) to appeals involving facial constitutional challenges to court-cost statutes based on violations of the Separation of Powers clause of the Texas Constitution. *See**State ex rel. Vance v. Clawson* , 465 S.W.2d 164, 168 (Tex. Crim. App. 1971) ("The Court of Criminal Appeals is the court of last resort in this state in criminal matters. This being so, no other court of this state has authority to overrule or circumvent its decisions, or disobey its mandates." (internal quotations omitted) ); *Johnson* , --- S.W.3d ----, 2018 WL 1476275, at *4 ("[T]he *Salinas* decision requires us to apply the legal standard in that case to all facial challenges based on the [S]eparation-of-[P]owers provision to court-cost statutes."); *Cervantes-Guervara v. State* , 532 S.W.3d 827, 832 (Tex. App.-Houston [14th Dist.] 2017, no pet.) (when court of criminal appeals "has deliberately and unequivocally interpreted the law in a criminal matter, [the courts of appeals] must adhere to its interpretation"). Thus, after *Salinas* , to avoid being declared facially unconstitutional, in violation of the Separation of Powers clause of the Texas Constitution, a statute that imposes a court cost on a criminal defendant must direct "that the funds [collected pursuant to that statute] be used for something that is a legitimate criminal justice purpose." *Salinas* , 523 S.W.3d at 109 n.26, 110 n.36 ; *see also**Peraza* , 467 S.W.3d at 517-18 ("[I]f [a] statute under which court costs are assessed ... provides for an allocation of ... 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 [S]eparation of [P]owers clause." (internal footnote omitted) ). This the legal standard to be applied in the instant case.

Turning back to this case, the Court has been asked to determine whether the "Summoning Witness/Mileage" fee assessed against criminal defendants, including appellant, pursuant to Texas Code of Criminal Procedure article 102.011(a)(3) and (b), is facially unconstitutional because *817it violates the Separation of Powers clause of the Texas Constitution. *See* TEX. CONST . art. II, § 1. Article 102.011(a)(3) and (b) require a defendant "convicted of a felony or misdemeanor" to pay fees for certain services "performed ... by a peace officer," including "$5 for summoning [each] witness" and "29 cents per mile for mileage required of an officer to perform [the] service ... and to return from performing that service." *See* TEX. CODE CRIM. PROC. ANN . art. 102.011(a)(3), (b). However, the statute *does not* actually state where the funds received from criminal defendants for the "Summoning Witness/Mileage" fee are to be directed. *See id.* ; *see also* Tex Att'y Gen. Op. No. JC-0031 (1999) (noting "[a] myriad of statutes authorize district clerks to collect court fees in criminal and civil cases" and "[s]ome of these statutes earmark court fees for deposit in specific state or county accounts," while "others are *silent* with respect to this issue" (emphasis added) (internal footnotes omitted) ). Under such circumstances, the funds collected pursuant to article 102.011(a)(3) and (b) end up in the general fund of the county in which the convicting court serves or the general fund of the State. *Cf.**Johnson* , --- S.W.3d ----, 2018 WL 1476275, at *4 ( Code of Criminal Procedure article 102.004, imposing $40 fee on criminal defendant convicted by jury, does not allocate jury fee to any specific fund; and, under such circumstances, defendant and State agreed funds collected were deposited in general fund); *Hernandez* , 562 S.W.3d at 509-21, 2017 WL 3429414, at *6-7 (funds collected from criminal defendants pursuant to Code of Criminal Procedure 102.008(a), which is silent as to where such funds are directed, deposited in general fund of county or city court serves); *see also* Tex Att'y Gen. Op. No. JC-0031 (if fee provision is silent with respect to fee's proper disposition and fee is for official service performed by district clerk, then funds must be deposited in county treasury).

In fact, the Office of Court Administration's website even notes, in regard to article 102.011(a)(3) and (b), that "100% of the money" collected for the "Summoning Witness/Mileage" fee, including appellant's money, remains "with the county or city which the [c]ourt serves" and is directed to that county's or city's "General Fund." *See* Office of Court Administration, *Study of the Necessity of Certain Court Costs and Fees in Texas* (Sept. 1, 2014), at 12, 51 in Criminal Court Costs Section (Fee No. 26, "Peace Officer Fee-Summoning a Witness"; Fee No. 118, "Peace Officer Fee-Mileage"), http://www.txcourts.gov/media/495634/SB 1908-Report-FINAL.pdf; *see also**Salinas* , 523 S.W.3d at 110 & n.36 (noting "[t]he [Texas] Comptroller's website says that the money collected for [the] [']abused children's counseling['] [account] is deposited in the General Revenue Fund"); *Hernandez* , 562 S.W.3d at 509-10, 2017 WL 3429414, at *6. Further, the Office of Court Administration's website explains that if a "peace officer" is employed by the State then "the [c]ity or [c]ounty," which the court serves, "keeps 80% of the ['Summoning Witness/Mileage'] fee," which is then "direct[ed] ... to the [c]ounty's (or [c]ity's) General Fund," while "[t]he [remaining] 20% of the money [collected for the 'Summoning Witness/Mileage' fee] is sent to the State for deposit in the State's General Revenue Fund."13*See* Office of Court Administration, *Study of the Necessity of Certain Court Costs and Fees in Texas* (Sept. 1, 2014), at 12, 51 in Criminal Court Costs Section (Fee No. 26, "Peace Officer Fee-Summoning a Witness"; Fee *818No. 118, "Peace Officer Fee-Mileage"), http://www.txcourts.gov/media/495634/SB1908-Report-FINAL.pdf; *see also**Salinas* , 523 S.W.3d at 110 & n.36. And because the funds received for the "Summoning Witness/Mileage" fee are "directed to the General Fund (at both the State and local level)," they "need not be spent only on law enforcement [purposes]." *See* Office of Court Administration, *Study of the Necessity of Certain Court Costs and Fees in Texas* (Sept. 1, 2014), at 12, 51 in Criminal Court Costs Section (Fee No. 26, "Peace Officer Fee-Summoning a Witness"; Fee No. 118, "Peace Officer Fee-Mileage"), http://www.txcourts.gov/media/495634/SB19 08-Report-FINAL.pdf; *see also**Salinas* , 523 S.W.3d at 110 & n.36 (noting "[t]he [Texas] Comptroller's website says that the money collected for [the] [']abused children's counseling['] [account] is deposited in the General Revenue Fund"); *Hernandez* , 562S.W.3d at 509-10, 2017 WL 3429414, at *6 (holding Code of Criminal Procedure article 102.008(a) unconstitutional, in violation of Separation of Powers clause, because "it allocates funds to the county's general fund" and those funds spent "for purposes other than legitimate criminal justice purposes"); *Casas* , 524 S.W.3d at 925-27 ( Code of Criminal Procedure article 102.0185 unconstitutional, in violation of Separation of Powers clause, where funds collected from "emergency-services cost" allocated to general revenue fund); Tex. Att'y Gen. Op. No. JC-0158 ("Court fees that are used for general purposes are characterized as taxes, and a tax imposed on a litigant ... violat[es] ... the constitution."); Tex. Att'y Gen. Op. No. JM-530 (money in county's general fund may be spent on "any proper county purpose").

Thus, in this case, as in *Salinas* , "the constitutional infirmity" is that article 102.011(a)(3) and (b) do not *direct* the funds collected from criminal defendants for the "Summoning Witness/Mileage" fee to be used in a manner that would make them a court cost (i.e., for something that is a legitimate criminal justice purpose).14*See*523 S.W.3d at 109 n.26, 110 n.36 ; *see also**Peraza* , 467 S.W.3d at 517-18 ("[I]f [a] statute under which court costs are assessed ... provides for an allocation of ... court costs to be expended for legitimate criminal justice purposes, then the statute *819allows for a constitutional application that will not render the courts tax gatherers in violation of the [S]eparation of [P]owers clause.") (internal footnote omitted); *Johnson* , --- S.W.3d ---- - ----, 2018 WL 1476275, at *4-5 ("Under *Salinas* , article 102.004(a) 's failure to direct the funds collected to be used for something that is a legitimate criminal-justice purpose makes the statute facially unconstitutional, in violation of article II, section I of the Texas Constitution."); *Toomer* , 2017 WL 4413146, at *3 ; *Hernandez* , 562 S.W.3d at 510-21, 2017 WL 3429414, at *7 ; *Casas* , 524 S.W.3d at 927 (because "[n]either the statute authorizing the collection of the emergency-services cost nor its attendant statutes direct the funds to be used for a legitimate, criminal-justice purpose; ... it is a tax that is facially unconstitutional"); Tex. Att'y Gen. Op. No. JC-0158 ("Court fees that are used for general purposes are characterized as taxes, and a tax imposed on a litigant ... violat[es] ... the constitution."). And this means that article 102.011(a)(3) and (b) operate unconstitutionally every time that the "Summoning Witness/Mileage" fee is collected. *See**Salinas* , 523 S.W.3d at 109 n.26 ; *see also**Johnson* , --- S.W.3d ---- - ----, 2018 WL 1476275, at *4-5; *Hernandez* , 562 S.W.3d at 510-21, 2017 WL 3429414, at *7.

Further, even if "some of the money collected" for the "Summoning Witness/Mileage" fee "may ultimately be spent on something that would [constitute] a legitimate criminal justice purpose," this would not be "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." *Salinas* , 523 S.W.3d at 109 n.26 ; *see also**Johnson* , --- S.W.3d ----, 2018 WL 1476275, at *4 ("That funds can be used for a legitimate criminal-justice purpose does not satisfy the *Salinas* legal standard....").

Thus, as the court of criminal appeals concluded in *Salinas* , article 102.011(a)(3) and (b) do not direct the funds received from criminal defendants for the "Summoning Witness/Mileage" fee to be expended for a legitimate criminal justice purpose. 523 S.W.3d at 109-10, 109 n.26, 110 n.36 ; *see also**Peraza* , 467 S.W.3d at 517-18 ("[I]f [a] statute under which court costs are assessed ... provides for an allocation of ... 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 [S]eparation of [P]owers clause." (internal footnote omitted) ). Accordingly, I would hold that article 102.011(a)(3) and (b) are facially unconstitutional as they "allocate[ ] [the] funds" received for the "Summoning Witness/Mileage" fee to the general revenue fund of either the county or the State and allow such money to be spent for purposes other than legitimate criminal justice purposes in violation of the Separation of Powers clause of the Texas Constitution.15*See**Salinas* , 523 S.W.3d at 109-10 ("We cannot uphold the constitutionality of funding th[e] ['abused children's counseling'] account ... when all the funds in the account go to general revenue."); *Peraza* , 467 S.W.3d at 518 n.17 (agreeing "court costs should [generally] relate to the recoupment of judicial resources").

*820I would sustain appellant's second issue and modify the trial court's judgment to delete the $200 "Summoning Witness/Mileage" fee from the assessed court costs. *See**Cates v. State* , 402 S.W.3d 250, 252 (Tex. Crim. App. 2013) (holding proper remedy when trial court erroneously includes amounts as court costs is to modify judgment to delete erroneous amounts); *Hernandez* , 562 S.W.3d at 510-21, 2017 WL 3429414, at *7. Further, I continue to urge the legislature to reevaluate the fee system currently in place in light of the enormous, and potentially unjustified, burden it too often imposes "on the poorest members of society ensnared in Texas' criminal justice system."16

1

*State v. Lanclos* , 980 So.2d 643, 651 (La. 2008) (internal quotations omitted) (holding $5.00 fee assessed against criminal defendants pursuant to Louisiana statute constituted "a tax collected by the courts, and thus a violation of the [S]eparation of [P]owers doctrine"); *see also**LeCroy v. Hanlon* , 713 S.W.2d 335, 342 (Tex. 1986) ("If the right to obtain justice freely is to be a meaningful guarantee, it must preclude the legislature from raising general revenue through charges assessed to those who would utilize our courts." (internal quotations omitted) ).

2

*See* Tex. Penal Code Ann . § 29.03(a)(2) (Vernon 2011).

3

*See* Tex. Code Crim. Proc. Ann . art. 102.011(a)(3), (b) (Vernon 2018) (imposing $5 charge on criminal defendant convicted of felony "for summoning [each] witness" and requiring defendant to pay "29 cents per mile for mileage required of an officer to perform a service ... and to return from performing that service").

4

A criminal defendant may challenge the imposition of mandatory court costs for the first time on direct appeal when those costs are not imposed in open court and the judgment does not contain an itemization of the imposed court costs. *See**London v. State* , 490 S.W.3d 503, 506-07 (Tex. Crim. App. 2016) ; *see also**Johnson v. State* , 423 S.W.3d 385, 390-91 (Tex. Crim. App. 2014) ; *Casas v. State* , 524 S.W.3d 921, 925 (Tex. App.-Fort Worth 2017, no pet.).

5

*See* Tex. Local Gov't Code Ann . § 133.102(a) (Vernon Supp. 2017) ("A person convicted of an offense shall pay as a court cost, in addition to all other costs: (1) $133 on conviction of a felony; (2) $83 on conviction of a Class A or B misdemeanor; or (3) $40 on conviction of a nonjailable misdemeanor offense, including a criminal violation of a municipal ordinance, other than a conviction of an offense relating to a pedestrian or the parking of a motor vehicle."); *see also**Salinas v. State* , 523 S.W.3d 103, 105 (Tex. Crim. App. 2017) (under Local Government Code section 133.102, "[a] defendant pays a single fee, but the money from that fee is divided up among a variety of different state government accounts according to percentages dictated by the statute").

6

The court also held that Local Government Code section 133.102 is unconstitutional, in violation of the Separation of Powers clause, to the extent that it allocates funds received from criminal defendants to the "[c]omprehensive [r]ehabilitation" account because such funds serve "[n]o criminal justice purpose." *Salinas* , 523 S.W.3d at 105, 107-09 (internal quotations omitted). Since *Salinas* , the court of criminal appeals has repeatedly held that the portions of the "Consolidated Court Cost" fee that allocate funds received for the fee to the "abused children's counsel" account and the "comprehensive rehabilitation" account are unconstitutional. *See, e.g.* , *Carter v. State* , No. PD-1449-16, 2018 WL 1101310, at *1-2 (Tex. Crim. App. Feb. 28, 2018) ; *Amie v. State* , Nos. PD-0253-16, PD-0254-16, 2017 WL 5476352, at *1 (Tex. Crim. App. Nov. 15, 2017) ; *Johnson v. State* , 537 S.W.3d 929, 929-30 (Tex. Crim. App. 2017) ; *Davis v. State* , No. PD-1314-15, 2017 WL 4410265, at *1 (Tex. Crim. App. Oct. 4, 2017) ; *Guerrero v. State* , Nos. PD-0665-15, PD-0666-15, 2017 WL 4410256, at *1 (Tex. Crim. App. Oct. 4, 2017) ; *Penright v. State* , 537 S.W.3d 916, 916-17 (Tex. Crim. App. 2017) ; *see also* Act of May 18, 2017, 85th Leg., R.S., ch. 966, § 1, 2017 Tex. Sess. Law Serv. 3917 (amending Local Government Code section 133.102 to remove the "abused children's counseling" account and "comprehensive rehabilitation" account identified by the court of criminal appeals as unconstitutional).

7

This case is currently before the Court on rehearing.

8

The study conducted by the Office of Court Administration identified several concerns, including the fact that "some fees and costs [ordered to be collected from criminal defendants] have no stated statutory purpose," "court fees and costs collected from [criminal defendants] are oftentimes used to fund programs outside of and unrelated to the judiciary," and "many court fees and costs are collected for a purpose but [are] not dedicated or restricted to be used exclusively for that intended purpose." *See* Office of Court Administration, *Study of the Necessity of Certain Court Costs and Fees in Texas* (Sept. 1, 2014), at 2, http://www.txcourts.gov/media/495634/SB1908-Report-FINAL.pdf.

9

The State, in its motion for rehearing in *Hernandez* , concedes that article 102.008(a) does not contain language directing the funds collected from criminal defendants for the "[P]rosecutor's fee" to be expended for any legitimate criminal justice purpose.

10

While the majority takes great pains to distinguish these cases and reconcile its opinion on rehearing with their controlling nature, I am not persuaded and "cannot join the [laborious effort] in which the majority engages by forcing a square peg into a round hole." *See**Saunders v. Lee* , 180 S.W.3d 742, 746 (Tex. App.-Waco 2005, no pet.) (Gray, C.J., dissenting).

11

It is imperative to remember that when the legislature oversteps its bounds and passes a statute that violates the Texas Constitution, there is no shame in a court saying so. *See**LeCroy* , 713 S.W.2d at 339 (courts have "the power and duty to protect the ... guaranteed rights of all Texans" and "[b]y enforcing [the] constitution, [courts] provide Texans with their full individual rights"). As Justice Franklin Spears has explained:

> [The legislature may not] force the judiciary into the role of a subordinate and supplicant governmental service-in effect, a mere agency. The judiciary is not an agency, but is a constitutionally established separate, equal and independent branch of government.

> ....

> .... The judicial power provides a check on the abuse of authority by other governmental branches. If the courts are to provide that check, they cannot be subservient to the other branches of government but must ferociously shield their ability to judge independently and fairly. This is the essence of our very existence; we owe the people of Texas no less than our unflinching insistence on a true tripartite government. It is the responsibility of this court to preserve this constitutional framework.

> .... The judiciary may often be denominated as the "third" branch of government, but that does not mean it is third in importance; it is in reality one of three equal branches. As such, the judiciary is an integral part of our government and cannot be impeded in its function....

*Mays v. Fifth Court of Appeals* , 755 S.W.2d 78, 80-81 (Tex. 1988) (Spears, J., concurring) (internal footnotes and quotations omitted).

12

Certainly, what the court of criminal appeals did *not* do in *Peraza* was hold, as the majority now concludes, that under the Separation of Powers clause "at least two types of fees assessed as court costs are constitutionally permissible: (1) court costs to reimburse criminal justice expenses incurred in connection with that criminal prosecutions and (2) court costs to be expended in the future to off-set future criminal-justice costs."

13

Although the majority concludes that the Office of Court Administration's website has "limited value," the majority does not assert that the information from the website is inaccurate. *Cf.**Salinas* , 523 S.W.3d at 110 n.36. Further, article 102.011(a)(3) and (b) are not facially unconstitutional because of the information contained on the Office of Court Administration's website. Instead, as explained above, in order to pass muster under the Separation of Powers clause of the Texas Constitution, article 102.011(a)(3) and (b), or an interconnected statute, must direct that the funds collected from criminal defendants for the "Summoning Witness/Mileage" fee be expended for something that constitutes a legitimate criminal justice purpose. Here, the statute simply does not do that; it does not state where the funds collected for the "Summoning Witness/Mileage" fee are to be directed. Accordingly, the funds collected pursuant to article 102.011(a)(3) and (b) are deposited in the county's general fund or the State's general fund to be used for any legal purpose. *This* is what renders the statute unconstitutional.

14

It may be helpful to look at the necessary inquiry that we must make in this case as a two-step process. First, we must ask whether article 102.011(a)(3) and (b) direct the funds collected from criminal defendants for the "Summoning Witness/Mileage" fee to a particular "place." Second, if article 102.011(a)(3) and (b) do so direct the funds, we must ask whether that particular "place" fulfills a legitimate criminal justice purpose. As noted above, article 102.011(a)(3) and (b) 's fatal flaw is that they do not actually state where the funds received from criminal defendants for the "Summoning Witness/Mileage" fee are to be directed. *See* Tex. Code Crim. Proc. Ann . art. 102.011(a)(3), (b) ; *Hernandez v. State* , No. 01-16-000755-CR, 562 S.W.3d 500, 509-21, 2017 WL 3429414, at *6-7 (Tex. App.-Houston [1st Dist.] Aug. 10, 2017, no pet. h.) ("The statute does not state where the $25 fee is to be directed."); *cf.**Salinas* , 523 S.W.3d at 107-10 (after first noting "Consolidated Court Cost" fee statute directed funds collected to "abused children's counseling" account and "comprehensive rehabilitation" account, then considering whether funds contained in either account are used for legitimate criminal justice purposes).

15

For reasons expressed in previous cases, I would also hold that Texas Code of Criminal Procedure article 102.011(a)(3) and (b) are unconstitutional as applied to appellant because the statute violates his constitutional right to confrontation. *See* U.S. Const . amend. VI ; Tex. Const . art. I, § 10 (right to confrontation); Tex. Code Crim. Proc. Ann . art. 1.05 (Vernon 2005) ; *Castello v. State* , No. 01-16-00742-CR, 555 S.W.3d at 621-29, 2018 WL 2660520, at *7-13 (Tex. App.-Houston [1st Dist.] June 5, 2018, pet. filed) (Jennings, J., concurring); *London v. State* , 526 S.W.3d 596, 605-12 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd) (Jennings, J., dissenting). However, I recognize that this Court has already rejected the arguments presented by appellant. *See, e.g.* , *Castello* , 555 S.W.3d at 619-22, 2018 WL 2660520, at *5-7 ; *Robles v. State* , No. 01-16-00199-CR, 2018 WL 1056482, at *6 (Tex. App.-Houston [1st Dist.] Feb. 27, 2018, pet. ref'd) (mem. op., not designated for publication); *Buford v. State* , No. 01-16-00727-CR, 2017 WL 6759199, at *6-7 (Tex. App.-Houston [1st Dist.] Dec. 28, 2017, pet. ref'd) (mem. op., not designated for publication); *Macias v. State* , 539 S.W.3d 410, 421-24 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd) ; *London* , 526 S.W.3d at 598-602, 604 ; *see also**Benge v. Williams* , 472 S.W.3d 684, 738 (Tex. App.-Houston [1st Dist.] 2014) (Jennings, J., dissenting from denial of en banc reconsideration) (although "we are not free to disregard binding precedent," as appellate court justices, "we ... are certainly free to point out any flaws in the reasoning of the [binding] opinions"), *aff'd* , 548 S.W.3d 466 (Tex. 2018) ; *Jones v. State* , 962 S.W.2d 96, 99 (Tex. App.-Houston 1997) (Taft, J., concurring) (noting although "we are bound by precedent ..., we are not gagged" by it), *aff'd* , 984 S.W.2d 254 (Tex. Crim. App. 1998) ; *Precedent* , Black's Law Dictionary (10th ed. 2014) (defining precedent as "a decided case that furnishes a basis for determining later cases involving similar facts or issues").

16

Matt Clarke, *Texas Criminal Court Fees are a Tax on Poor Defendants* , Prison Legal News (Mar. 15, 2014), https://www.prisonlegalnews.org/news/2014/mar/15/texas-criminal-court-fees-are-a-tax-on-poor-defendants/ (because "people who have been convicted of crimes elicit much less sympathy," "the myriad of criminal court fees and their misuses will most likely continue unabated"); *see also* Eric Dexheimer, *Hard-up Defendants Pay as State Siphons Court Fees for Unrelated Uses* , Statesman (Sept. 20, 2012), https://www.statesman.com/news/special-reports/hard-defendants-pay-state-siphons-court-fees-for-unrelated-uses/o Nyf6HCFKbA4Nlq0UCLiRM/ (" 'We're trying to squeeze more money from people who have a hard time getting jobs because they have a criminal record, or have mental illness problems or substance abuse problems'.... 'These fees are a tax on the poor.' " (quoting executive director of the Texas Criminal Justice Coalition) ).