Opinion issued February 2 7 , 2020

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 19 - 00030 - CR

——————————— ALBERT F O RI STER , Appella nt

V. THE STATE O F TEXAS , Appell e e
On Appeal from the 424th District Court Burnet County, Texas 1 Trial Court Ca se No. 46497

MEMORANDUM OPINION

1 The Texas Sup reme Court transferred this appeal from the Court of Appeals for the Thir d District of Texas. See T EX
. G OV ’ T C O DE § 73.00 1 (author i zing transfer of cases between cou rts of appeals).2

The State charged Albert Forister with first

- degree

- felony possession with inten t to d el iver methamphetamine 2 in a n amount of four grams or more but le ss than 200 grams. See T EX
. H EALTH & S AFETY C ODE § 481. 112 (d) . Forister pleaded no t guilty to the charge but pleaded “true ” to both enhancement paragraphs

. The jur y found Forister guilty of the less er - included offense of possession of methamphet amine in an amount of four grams or more but less than 200 grams, a second

- degree felony. See id

. § 481 .115(a), (d). The trial court sen t e nced Forister to 50 years ’ confinement and assessed co urt costs totaling $399 , including a $25 time payment fee

. In his first issue , For ister contends that the $25 time payment fee 3 a ssessed against him should be re duced by $22.50 bec a use 90 percent of the fee is facially

2 Metham phetami ne is categorized as a “Penalty Group 1 ” drug in the H ealth and S afety C ode

. See T EX
. H EALTH & S AFET Y C ODE § 4 81.102 (6).

3 Sectio n 133.10 3 of the Local Government Code governs time payment fees. See T EX
. L OC
. G OV ’ T C ODE § 133.103

. The Texas Legislature h as passed legislation, effective January 1, 2020, that deletes S ubsections (c) and (d) from S ect ion 133.103 a nd revises S ubsection (b) to provide that all the fees collected under the section are “to be used for the purpose of improving the collection of o utstanding court costs, fines, reimbursement fees, or restitut ion or improving the efficiency of th e admi n istration of justice in the county or municipality.” See A ct of May 23, 2019, 8 6th Leg., R. S. , S.B. 346 , § 2.54 ( to be codified at T EX
. C ODE C RIM
. P RO C
. art. 102.030). The changes apply only to a cost, fee, or fi ne assessed on a conviction for an of fense committed on or after the effective date of the Act. Id . § 5.01. Because the offense in this case was committed before January 1, 2020, the former law app lies. Id

.3

u n constitutional

. I n his second issue, Forister contends that the j udgment contains several errors . Cons t itutionality of Time Payment Fees A. S tandard of Review There are two types of challenges to the constitutionality of a statute: (1) the
statu te is unconstitutional as applied to the defendant ; or (2) the statute is unconstitutional on its face

. Briggs v. State , 789 S.W.2d 918, 923 (Tex. Cr im. App. 1990) (en banc)

. “ Statutes are presumed to be constitut ional until it is determined otherwise.” Ka renev v. State , 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) ; see Ex parte Granviel , 561 S.W.2d 50 3, 511 (Tex. Crim. App. 1978) (en banc) (requiring the appellat e court to “comme nce with the presumption that such st atute is valid and that the Legislature has not acted unreasonably or arbitrarily in enacting t h e statute.”). A person challenging the constitutionality of a st a tute has the burden of establishing its unc on s titutionalit y. Peraza v. State , 467 S.W.3d 508, 514 (Tex. Cr i m. App. 2015)

. We should consid er “the statute only as it is written, rather th a n how it [may operate] in practice

. ” State ex rel. Lyk os v. Fine , 330 S.W.3d 904, 908 (Tex. Crim. App. 2011)

. To establish that a statute is facially unconstitutional the appellant must show that “no s e t of c ircumstances exists under which that statute

wo uld be valid.” Santikos v. State , 836 S.W.2d 631, 633 (Tex. Crim. App. 1992) (en banc) (citing United Sta t es v . Salerno , 481 U.S . 739, 745 (1987 ) ). “If a statute can4

be construed in two d i ff

erent ways, one of which sust ains i ts validity, we apply the interpretation that sustains its validity.” Kfouri v. State , 312 S.W.3d 89, 92 (Tex. App.

— Houston [14th Dist.] 2010, no pet.). We uph old the statute if we can apply a reasonable construction r e nd ering the statute constitutio nal. I d . (citing Ely v. State , 582 S.W.2d 416, 419 (Tex. Crim. App. 1979) ). Whether a criminal statute is constitutional i s a question of law that we review de novo. Ex parte L o , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). B. A pplicable Law A defendant may ch allenge the court costs assessed , including time payment fees, for the first time on appeal. See Casas v. State , 524 S.W.3d 921, 925 (Tex. App.

— Fort Worth 2017, no p et.). The Local Gove r nment Code mandates time payment fee s . See T EX
. L OC
. G OV ’ T C O DE § 133.103 . Section 133.103 of the Texas Local Governm ent Code requires a person convicted of a criminal offense to pay a time payment fee of $25 if the person: (1) has bee n convicted of a felony or misdemeanor; and (2) pays any part of a fine, court cos ts, or restitution on or after the 31st day after a judgment is entered assessing the fine, court costs, or r estitution. Id

. § 133.103 (a). Subsection (b) of the stat ute instr ucts the tre asu rer to send 50 percent of the time payment fee s c ollected to the comptroller to be depos ited to the credit of the general re venue fund. Id

. § 133.103 ( b ). Subs ection ( c) instru cts the
tre asurer to deposit 10 percent of the fees in th e general fund of the county or5

municip a lity “for the purpose of improvin g the efficiency of the administration of justice in the county or municip ality. ” Id

. § 133.103 ( c). Subsection (d) instructs the treasurer to deposi t the rem aining 40 perc ent of the fees in th e general revenue account of t h e county or m unicipality. Id

. § 1 33.103 ( d). The Texas Constitution expressly guarantees that powers among the three branches of government b e s eparated

. T EX
. C ONST
. art. II, sec. 1; Salinas v. State , 523 S.W.3d 103, 106 (Te x. Crim. App. 2017)

. This section ensures that the powers granted to one go v ern mental branch may be e xclusive ly ex ercised only by that branch. Johnson v. State , 573 S.W.3d 328, 333 (Tex. App.

— Houston [14th Dist.] 2019, pet. filed) ( citing Ex parte L o , 424 S.W.3d at 28). A branch of the gover nment violates the separat ion

- of

- powers provision “[w] hen one branc h of government assumes or is del e gated a power more proper ly attac hed to another branch

. ” Johnson , 573 S.W.3d at 333 ( citing S a linas , 523 S.W.3d at 106

– 07 )

. “ The court s are delegated a power more properly attached to the executive branch if a statute turns the courts into ‘ tax gatherers, ’ ” but there are instan ces whe n the colle ction of fees in c riminal cases will be considered a part of the judicial funct ion. For example, court costs allocated to be expended for legiti mate criminal ju stice purposes are p ermitted. Salinas , 52 3 S.W.3d at 107

. A legitimate cr iminal justice purpose is determined on a statute

- by

- statute and

case - by

- case basis by re viewing what the governing statute dictates as the intended6

use of the funds. Sali n as , 523 S.W.3d a t 107

. Whether the funds are actually used for a legitimate criminal justice p urpose is not a relevant inquiry. Id

. C. Analysis Although For ister does not challenge the co ns titutionality of sub section (c) of the Local Governme nt Code, he ar g ues that sub sections (b) and (d ) violate the separation of powers in the Texas Constitution. T EX
. C ONST
. art . II, sec. 1 (providing that no branch of government “shall exercise any power properly attach ed to e ither of th e others, ex cept in the instances h erein expres sly permitted ”)

. F or ister relies on Johnson v. State , 573 S.W.3d 328 (Tex. App.

— Houston [14th Dist.] 2019, pet. filed) . In Jo hnson , our sister court addressed whether a time p ayment fee viola te s the separatio n - of

- powers provision of the Texas Consti t ution

. Id . at 340. Johns on examined “ whether [portions of] s ection 133.103 direct [] that the funds be used for something that is a legitimate criminal justice purpos e . ” Id . Relying on Salin as , the J oh nson court held that t he time payment fee authorized by s ubsections (b) and (d)

a re directed to general revenue and d o not relate to the criminal justice syste m because there is no “statutory directive that the funds be used for a leg iti mate criminal jus tice purpose. ” Id

. Therefore, Johnson held that portions of S ection 13 3 .103 w ere fa cially unconstitutional and reduced the appellant ’s ti me payment f ee from $ 25 to $2.50

. Id

.7

After the Johnson decision, other Te xas courts have held that S ubsecti ons (b) and (d) are facia lly unconstitutional

. See, e.g. , Jackson v. State , No. 10

- 17

- 00333

- CR, 2020 WL 830822, at *4 (Tex. App.

— Waco Feb. 19, 2020, no pet. h.) (mem.
op., n ot des ignated for pu blication); Ovalle v. State , --- S.W.3d

- - - , No

. 05

- 19

- 00136

- CR, 2020 WL 364140, at *3 (Tex. App.

— Dallas Jan. 22, 2 020, no pet. h.) ; Simmons

v. St ate , 590 S.W.3d 702, 711 (Tex. App.

— Waco 2019, pet. filed) ; Townsend v. S tate , No. 13

- 18

- 00049

- CR, 2019 WL 6205470, at *8 (Te x . App.

— Corpus Christi Nov. 21, 2019, pe t. filed) ( mem. op., not designat ed for publication); Dulin v. State , 583 S.W.3d 351, 353 ( Tex. App.

— Austin 2019, pet. granted) ; Kremplewski v. State ,

--- S.W.3d

--- , No. 01

- 19

- 00033

- CR, 2019 WL 3720627, at *3 (Tex. App.

— Houston [1st Dist.] Aug. 8, 2019, p et. filed) ; King v. State , No. 11

- 17

- 00179

- CR, 2019 WL 3023513, at *5 (Tex. A pp.

— Eastland J uly 11, 2019, pet. filed) (mem. op., not designated for publicat ion). We likewise adopt the reasoning in Johns on and conclude S ubsections ( b ) and (d) of S e ction 13 3.1 03 are facially unconstitutional. In con trast, Subsection (c) , which allocates 10 percen t of the time payment fee to the general fund of the county

or m unicipality to improve the efficiency of the administration of justice in the county or municipality, is facially constitutional because it allocates the funds for a legitimate criminal justic e purpose. See Peraza , 467 S.W.3d at 517

. We t herefore sustain For ister ’ s first issue in part, deleting $22.50 from the tim e payment fee8

assessed because the statute that authorizes this portion of the time payment fee is facially unconstitutional

. We over rule the rema inder of For ister ’ s first issue. Err oneous Judgment In hi s second issue, Forister asserts that the judgm ent o f conviction cont ains

an error and request s that we modify the judgment ac cordingly. The State concedes that the judgment d oes not re fl ect the Health and Safety Code provi sion und er which Forister wa s convi cted

. The State also concedes that th e ju dgme n t incorrectly recites the degree of offense an d statute for the offense

. The jury convicted Fo rister of second

- degree

- fe lony possession o f methamphet amine in an amount of four grams

o r more but less th an 200 grams in violation of Texas He alth and Safety Code section 481 .115(a ) and (d)

. T he judgment, h owever, inac c urately reflect s that Forister was convicted of first

- degree

- f elony possession with intent to d eliver methamphetamine in a n amount of four gra ms or more but le ss than 200 grams in violation of Texas He alth and Saf

e ty Code S ection 481.112(d)

. We have the aut hority to correct a trial court ’ s judgm en t when we have the necessary in form ation to do so. See T EX
. R. A PP
. P. 43.2( b) ; B igley v. State , 86 5 S.W.2d 26, 27

– 28 (Te x. Crim. App. 1 993) (en banc) ; Parlin v. State , 591 S.W.3d 214, 225 (Tex. App.

— Houston [1st Dist.] 2019, no pet.)

. The jury ’ s verdict form shows that Forister was convict ed of possession, and not po ssession with the intent to deliver, because it states:9

We, the jury find defendant, [Fo rist e r], GUILTY of the lesser included off ense o f Possession of a Controlled Substance, to

- wit: Methamphetamine, 4 grams or more but le ss t han 200 grams

. 4 We will therefore exercise our authority to amend the err oneous judgment

. Accordingly , we modify the judgme nt t o ref lect that Forister was convicte d under T ex as Health and Sa fety Code S ection 481 .115(a) and (d) in trial court cause number 46497

. C onclusion We sustain in part Forister ’s first issue as to the facial constitutionality of the time payment fee unde r Texas Local Gove rnment Code Section 13 3.103(b) and (d). We overrule Forister ’s first issue in all other respects. We sustain Fori st er ’s second issue as to the accuracy of the degree of offense, statute for offense, and offense of conviction

. We modify the trial court’s ju dgment to reduce the t ime payment fee from $25 to $2.50 . We also modify the t ri al court ’s judgment o f conviction to ref lect that Forister was convicted under Tex as Health and Sa fety Code section 481 .115(a) and (d)

.

4 The trial court also referenced the lesser

- included offense when the court announced the judgment of conviction: “ S o at this poin t, b ased on the ju ry ’ s finding of guilt, I ’ m going to find you guilty of possession of a controlled substance between four and 200 grams. ”10

As m odified, we affirm the t rial court ’ s judgment.

Sarah Beth Landau Justice Panel consists of Justices Lloyd, Landau, and Countiss. Do not publish. T EX
. R. A PP
. P. 47.2(b).