Peraza, Osmin

0100-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/23/2015 8:49:52 AM
April 23, 2015
Accepted 4/23/2015 9:11:11 AM
ABEL ACOSTA
CLERK
N OS. PD-0100-15 & PD-0101-15
IN THE C OURT OF C RIMINAL A PPEALS
O F THE S TATE OF T EXAS
O SMIN P ERAZA,
Appellant
v.
T HE S TATE OF T EXAS
Appellee
On Petition for Discretionary Review from the First Court of Appeals in
Nos. 01-12-00690-CR & 01-12-00691-CR.
Cause Numbers 1305439 & 1305438
from the 184th District Court of Harris County, Texas
B RIEF FOR A PPELLANT
Oral Argument Was Granted A LEXANDER B UNIN
Chief Public Defender
Harris County, Texas
J ANI M ASELLI W OOD
Assistant Public Defender
Harris County, Texas
TBN. 00791195
1201 Franklin Street, 13th Floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 368-9278
Counsel for Appellant
Osmin Peraza
IDENTITY OF P ARTIES AND C OUNSEL
APPELLANT: Osmin Peraza
TDCJ-ID# 01798603
Garza West
4250 Highway 202
Beeville, TX 78102
TRIAL PROSECUTOR: Ms. Sarah Bruchmiller
Assistant District Attorney
Harris County, Texas
1201 Franklin, 6th Floor
Houston, Texas 77002
APPELLATE PROSECUTOR Lisa McMinn (substituted in at CCA)
State Prosecuting Attorney
P.O. Box 13046, Capitol Station
Austin, TX 78711
Jessica Akins (at COA level)
Assistant District Attorney
Harris County, Texas
1201 Franklin, 6th Floor
Houston, Texas 77002
DEFENSE COUNSEL AT TRIAL: Ms. Emily Detoto
3000 Smith, Suite 4
Houston, Texas 77006
PRESIDING JUDGE: Hon. Jan Krocker
184th District Court
Harris County, Texas
1201 Franklin, 17th floor
Houston, Texas 77002
DEFENSE COUNSEL ON APPEAL: Jani Maselli Wood
Harris County Ass’t Public Defender
1201 Franklin, 13th Floor
Houston, Texas 77002
i
TABLE OF CONTENTS
Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Index of Authorities .................................................... v
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
State’s Granted Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I. Three parts to the theory that the DNA record fee is an unconstitutional
tax. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Court costs must be necessary and incidental to the trial of
a criminal case to be legitimate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. An illegitimate court cost is actually a tax. . . . . . . . . . . . . . . . . . . . . . . . . 4
C. The separation of powers doctrine is violated when the
courts act as tax-gatherers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
II. The State challenges every part of this court cost rationale. . . . . . . . . . . . . . . . . 5
A. The State believes the holding of Carson is merely dicta. . . . . . . . . . . . . . 5
1. The State’s rationale fails because Carson is
binding precedent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2. In Carson, the test for a court cost was
expressed in both the original opinion and the
opinion on rehearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3. Carson is not essential to the determination of
this case. This Court has recently determined
ii
a strikingly similar test for what a court cost is
in Weir v. State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4. Numerous cases would have to be disavowed
under the State’s theory that there is no test
for a court cost in Texas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5. The State’s opinion that this Court should
adopt a test from Oklahoma fails to consider
appropriate precedent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
B. An illegitimate court cost is a tax - according to the State’s
cited authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
C. A statute requiring the judicial branch to assess and collect
taxes violates the separation of powers. . . . . . . . . . . . . . . . . . . . . . . . . . 14
1. Texas state courts should not act as tax-gatherers. . . . . . . . . . . . 14
2. The power to collect taxes is an executive branch function. . . . 16
III.. The First Court of Appeals was correct under any test of a valid court
cost. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
A. Under the Carson test, the DNA record fee is
unconstitutional. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1. The State’s argument that the
Court of Appeals determination
is “speculative” fails. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
B. Under the Weir test, the DNA record fee is
unconstitutional. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
C. Under the Claborn test, the DNA record fee is
unconstitutional. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
IV. Public Policy dictates that courts should collect only fees that support
the courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
iii
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
iv
INDEX OF A UTHORITIES
Cases:
Armadillo Bail Bonds v. State,
802 S.W.2d 237 (Tex. Crim. App. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 15
Armstrong v. State,
340 S.W.3d 759 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 17
Boykin v. State,
818 S.W.2d 782 (Tex. Crim. App.1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Buback v. Romney,
156 N.W.2d 549 (Mich. 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Cantrell v. State,
10-12-00269-CR, 2014 WL 2069279
(Tex. App.—Waco May 15, 2014, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
Coronel v. State,
416 S.W.3d 550 (Tex. App.—Dallas 2013, pet. ref’d) . . . . . . . . . . . . . . . . . . . 10
Crocker v. Finley,
99 Ill. 2d 444, 459 N.E.2d 1346 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Dallas County v. Sweitzer,
881 S.W.2d 757 (Tex. App.—Dallas 1994, writ denied). . . . . . . . . . . . . . . . . . . 20
Davila v. State, 441 S.W.3d 751, 762
(Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . 10
Drisker v. State,
03-13-00356-CR, 2014 WL 4063339
(Tex. App.—Austin Aug. 14, 2014, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
v
Edwards v. State,
09-13-00360-CR, 2014 WL 1400747
(Tex. App.—Beaumont Apr. 9, 2014, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . 10
Ex parte Carson,
143 Tex. Crim. 498, 159 S.W.2d 126 (1942) . . . . . . . . . . . . . . . . . . . . . . . passim
Ex Parte Whiteside,
12 S.W.3d 819 (Tex. Crim. App.2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Forbes v. Texas Dep't of Public Safety,
335 S.W.2d 439 (Tex. Civ. App. - Waco 1960, no writ) . . . . . . . . . . . . . . . . . . 15
Habib v. State,
431 S.W.3d 737 (Tex. App.—Amarillo 2014, pet. ref’d) . . . . . . . . . . . . . . . . . . 10
Hill v. State,
440 S.W.3d 670 (Tex. App.—Tyler 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . 11
Houston v. State,
410 S.W.3d 475 (Tex. App.—Fort Worth 2013, no pet.) . . . . . . . . . . . . . . . . . 10
Johnson v. State,
423 S.W.3d 385 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
LeCroy v. Hanlon,
713 S.W.2d 335 (Tex. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
Morrow v. Corbin,
122 Tex. 553, 62 S.W.2d 641 (1933) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Peraza v. State,
01-12-00690-CR, 2014 WL 7476214 (Tex. App.—Houston [1st Dist.]
Dec. 30, 2014, pet. granted & pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . passim
State v. Claborn,
870 P.2d 169 (Okla. Crim. App. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
vi
State v. Lanchos,
980 So. 2d 643 (La. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 14
State v. Rhine,
297 S.W.3d 301 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Weir v. State,
278 S.W.3d 364 (Tex. Crim. App. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Constitution, Statutes, and Other Resources
T EX. C ONST. ART. II, § 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
T EX. C ONST., A RT. IV, S EC. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
T EX. C ONST., A RT. IV, S EC. 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
T EX. C RIM. P ROC. A RT. 102.020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3
T EX. C ODE C RIM. P ROC. A RT. 102.020(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
T EX. G OV'T C ODE A NN. § 772.006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 22
T EX. P ENAL C ODE § 22.021. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
T EX. T RANSP. C ODE A NN. § 222.001(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Black’s Law Dictionary (10th ed. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Carl Reynolds and Jeff Hall,
2011-2012 Policy Paper Courts are not Revenue Centers . . . . . . . . . . . . . . . . . . . . 22
James W. McElhaney, Great Arguments,
ABA Journal March 1, 2004. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
vii
S TATEMENT OF THE C ASE
This is an appeal from two separate cause numbers: 1305438 and 1305439. Mr.
Peraza pled guilty to two different felony offenses of aggravated sexual assault of a
child. (C.R.1 at 59; C.R.2 at 61). See T EX. P ENAL C ODE § 22.021. The Court took the
plea under advisement and a PSI hearing was held. (C.R.1 at 144; C.R.2 at 146). At the
PSI hearing, Mr. Peraza sought to withdraw his guilty plea, but the court denied the
request. (2 R.R. at 6-9). After the presentation of witnesses, the court sentenced Mr.
Peraza to 25 years imprisonment on each case to run consecutively. (C.R.1 at 73;
C.R.2 at 75; 2 R.R. at 39).
Motions for new trial and motions in arrest of judgment were filed in both
cases on August 13, 2012. (C.R.1 at 91, 116; C.R.2 at 94, 120). On August 16, 2012,
the motions were presented and the court denied a hearing and denied the motions
that same day. (C.R.1 at 113-15, 139-41; C.R.2 at 117-19, 143-45). Notices of appeal
were timely filed. (C.R.1 at 78; C.R.2 at 80).
The First Court of Appeals rejected Mr. Peraza’s claim that his pleas were
involuntary. Peraza v. State, 01-12-00690-CR, 2014 WL 7476214, at *12 (Tex.
App.—Houston [1st Dist.] Dec. 30, 2014, pet. granted & pet. denied). This Court
denied Mr. Peraza’s petitions for discretionary review on March 25, 2015 on this issue.
The First Court of Appeals modified the judgments to delete the $250 DNA record
fee from the judgments. Peraza, 2014 WL 7476214 at *12. The State petitioned for
discretionary review and its petitions were granted on March 25, 2015 with an
expedited briefing schedule.
1
S TATE’S G RANTED ISSUE
The First Court of Appeals erred by finding the DNA record fee is an
unconstitutional tax that violates the separation of powers clause.
S TATEMENT OF F ACTS
Mr. Peraza requested a bill of costs for both cases to review the assessed court
costs. (C.R.1 at 83; C.R.2 at 86). The cost bills were prepared and filed with the district
court subsequent to the judgment. (C.R.1 at 75; C.R.2 at 77). Mr. Peraza was charged
$250 for a DNA Record Fee in each case. The Code of Criminal Procedure provides
that a $250 fee can be collected upon conviction under T EX. C ODE C RIM. P ROC. A RT.
102.020(a)(1). The Code further provides that the $250 Fee labeled “Costs Related to
DNA Testing” will be distributed as follows:
(d) Court costs under this article are collected in the same manner as
other fines or costs. An officer collecting the costs shall keep separate
records of the funds collected as costs under this article and shall deposit
the funds in the county treasury.
(e) The custodian of a county treasury shall:
(1) keep records of the amount of funds on deposit
collected under this article; and
(2) send to the comptroller before the last day of the
first month following each calendar quarter the
funds collected under this article during the
preceding quarter.
(f) A county may retain 10 percent of the funds collected under this
article by an officer of the county as a collection fee if the custodian of
the county treasury complies with Subsection (e).
****
(h) Except as provided by Subsection (h-1), the comptroller shall deposit
35 percent of the funds received under this article in the state treasury to
the credit of the state highway fund and 65 percent of the funds received
under this article to the credit of the criminal justice planning account in
the general revenue fund.
T EX. C ODE C RIM. P ROC. A RT. 102.020.
2
S UMMARY OF THE A RGUMENT
The courts are not revenue sources. Neither are the courts tax gatherers for the
state. Funds collected by the State should be necessary and incidental to the trial of a
criminal case. The DNA record fee supports the state highways and the Governor’s
grant-funded criminal justice planning. It does not support the courts. Under the
separation of powers clause, this Court should find the fee unconstitutional.
Ancillary to the DNA record fee - but paramount in the determination - is
what is the test for a court cost in Texas? This Court should reject the State’s
assertion that Ex parte Carson and Weir v. State and its progeny should be disavowed in
order to create a new test relying upon law from Oklahoma.
3
A RGUMENT
The First Court of Appeals properly held that the DNA record fee is an
unconstitutional tax that violates the separation of powers clause.
The First Court of Appeals determined that the $250 DNA record fee was an
unconstitutional tax, explaining “the revenue, by statute, is dedicated by law for
expenditures that are far removed from actual ‘court costs.’ A plain reading of the
pertinent statutes reveals this undeniable fact.” Peraza, 2014 WL 7476214, at *12.
I. Three parts to the theory that the DNA record fee is an unconstitutional
tax.
The State claims the Court of Appeals erred in finding the DNA record fee is
an unconstitutional tax that violates the separation of powers clause. (State’s brief at
2). In order to evaluate the State's argument, one must first understand the general
rationale supporting the idea that certain criminal court costs are unconstitutional.
This rationale has three parts.
A. Court costs must be necessary and incidental to the trial of a
criminal case to be legitimate.
Part One concerns the legitimacy of a court cost. This Court has said a court
cost is legitimate only if it funds services necessary or incidental to the trial of a
criminal case. Ex parte Carson, 143 Tex. Crim. 498, 159 S.W.2d 126, 130 (1942).
B. An illegitimate court cost is actually a tax.
Part Two is the principle that an illegitimate court cost is not a court cost at all,
but is in reality a tax. If a court cost’s purpose is to raise revenue instead of to recoup
the costs of judicial resources, then the cost is a tax. State v. Lanchos, 980 So. 2d 643,
4
653 (La. 2008). The fact that an assessment is labeled as a court cost is of no
consequence. Id.
C. The separation of powers doctrine is violated when the courts act
as tax-gatherers.
Part Three is pure separation-of-powers doctrine. The doctrine is violated
when one of the three branches of Texas government is delegated a power more
appropriately attached to another branch. Armadillo Bail Bonds v. State, 802 S.W.2d 237,
239 (Tex. Crim. App. 1990). A statute imposing an executive branch power on the
judicial branch would violate the separation of powers doctrine and be
unconstitutional. The power to collect taxes is a function of the executive branch -
not the judicial branch. Therefore, a statute requiring the judicial branch to assess and
collect taxes - albeit taxes disguised as court costs - violates the separation of powers.
The constitutionality of any criminal court cost can be evaluated under the foregoing
three-part rationale.
II. The State challenges every part of this court cost rationale.
The State argues that the DNA record fee is not an unconstitutional tax that
violates the separation of powers clause of the Texas Constitution. (State’s Brief at 2).
The State’s argument attacks all three parts of the general rationale for certain court
costs being unconstitutional. All their contentions are meritless.
A. The State believes the holding of Carson is merely dicta.
As noted earlier, Part One of the general rationale concerns the legitimacy of a
court cost. The State takes issue with the test employed by the Court of Appeals in
determining that the DNA record fee is not a legitimate cost. The Court of Appeals
5
employed the test set out by this Court in Ex parte Carson, 159 S.W.2d at 130. The test
is that a court cost is legitimate only if it funds services necessary or incidental to the
trial of a criminal case. Id.
The State avers that the Carson test should not be utilized because the test is not
an actual holding of this Court, but rather is dicta. (State’s Brief at 10-11). The State
then urges this Court to “disavow” the test. (State’s brief at 11). The State then
suggests this Court “need not replace the language of Ex parte Carson with some other
test to evaluate the propriety of costs.” Id. If, however, this Court does choose to
impose a test, the State suggests using a much more lenient test from the State of
Oklahoma. Id. The Oklahoma test is that a court cost is legitimate if it is “reasonably
related to the costs of administering the criminal justice system.” Id. (citing State v.
Claborn, 870 P.2d 169 (Okla. Crim. App. 1994)). The State accurately notes that under
the Oklahoma test, a cost would not need to “be limited to compensating the
judiciary.” (State's Brief at 11).
1. The State’s rationale fails because Carson is binding precedent.
Faced with a court cost that fails the test for legitimacy, the State advances a
familiar pattern of argument similar to the law school example about the farmer’s
cabbages being eaten by a goat:
You had no cabbages.
If you had any cabbages, they were not eaten.
If your cabbages were eaten, it was not by a goat.
If your cabbages were eaten by a goat, it wasn’t my goat.
And if it was my goat, he was insane!
6
James W. McElhaney, Great Arguments, ABA Journal March 1, 2004.
(http://www.abajournal.com/magazine/article/great_arguments).
The State's argument on appeal follows this pattern:
Attack the test standard.
Assert that there should not even be a test standard.
And if a test is necessary, the standards should be greatly relaxed.
And even under a greatly relaxed standard, anything named a “court cost” is
valid.
2. In Carson, the test for a court cost was expressed in both the
original opinion and the opinion on rehearing.
First, the State argues that the Carson test for evaluating a court cost’s legitimacy
is not actually the test. In essence, the State asserts that this Court did not mean what
it said in Carson because it is in conflict with the result the State seeks.
In Carson, this Court invalidated a $1.00 court cost in Harris and Dallas
Counties to support county law libraries used by attorneys and judges. This Court
explained its rationale at some length:
On one side the courts take the view that the cost may be taxed as a
proper item because the money is used in the establishment and
maintenance of a law library, which, it is stated, is a legitimate charge on
the litigants. We find ourselves unable to accept that view. Such
reasoning would lead into fields of expenditures which may well include
the cost of the courthouses, the automobiles which officers use to
apprehend criminals and even the roads upon which they ride. If
something so remote as a law library may be properly charged to the
litigant on the theory that it better prepares the courts and the attorneys
for the performance of their duties, it occurs to us that we might as
logically tax an item of cost for the education of such attorneys and
judges and even the endowments of the schools which they attend.
Many other illustrations might be used to show the fallacy of such
contention and the inevitable results that litigation in the courts would be
7
prohibitive. We, therefore, conclude, as several states have, that the tax
imposed by the bill is not and cannot be logically considered a proper
item of cost in litigation, particularly in criminal cases.
Carson, 159 S.W.2d at 127.
This Court went on to say that it “also concluded” the statute authorizing the
fee was an unconstitutional local law. Id. at 127-28. Later in the opinion, this Court
declared that the $1.00 court cost also violated the constitutional guarantee of equal
protection. Id. at 129-30. There were three listed reasons for this Court's invalidation
of the $1.00 law library court cost. On rehearing, this Court reiterated the first two of
these reasons, explaining:
We remain firmly convinced: (a) That the item of $1.00 taxed as costs for
the Law Library Fund is neither necessary nor incidental to the trial of a
criminal case, and that it is not a legitimate item to be so taxed, (b) that
to so tax against a defendant in a criminal case in Harris County, and not
tax it in other counties where a defendant was convicted of the same
offense would be a discrimination which the law does not recognize or
tolerate.
Id. at 130.
The idea that the $1.00 court cost was invalid because it was not necessary or
incidental to the trial of a criminal case was expressed twice. The idea was expressed
in both the original opinion and the opinion on rehearing. The fact that this idea was
expressed twice, weakens the State’s argument that the Carson test for a cost’s validity
is not an actual holding. This fact also runs counter to the State’s suggestion that the
Carson test is merely a “hypothesis” borne out of “disdain for [the] fee.” (State’s Brief
at 10).
8
3. Carson is not essential to the determination of this case. This
Court has recently determined a strikingly similar test for what a
court cost is in Weir v. State.
The State urges this Court to disavow the Carson test. Id. at 11. The State then
suggests that there need be no test at all. Id. (“The Court need not replace the
language of Ex parte Carson with some other test to evaluate the propriety of costs or
fees.”)(State’s brief at 11). This suggestion implies that if this Court disavows the
Carson test, no other Texas law speaks to the propriety of court costs. See id. (“Ex parte
Carson is essential to Appellant’s argument, because without its ‘incidental or necessary
to a criminal trial’ test, the cost in this case is not a ‘tax,’ courts do not become ‘tax
collectors,’ and the statute creating this scheme does not violate the separation of
powers clause.”). The State’s implication, however, is inaccurate. This Court has
announced alternative formulations of the Carson test on multiple occasions in recent
years. So even if this Court disavows the Carson test, this Court’s alternative
formulations of the test will still stand. Contrary to the State's confident declaration,
the Carson test is not “essential to Appellant's argument.” This Court would have to
disavow numerous declarations in multiple recent cases before Texas would have no
test to evaluate the propriety of court costs.
4. Numerous cases would have to be disavowed under the State’s
theory that there is no test for a court cost in Texas.
The first case would be Weir v. State, where Judge Hervey wrote for a
unanimous court:
We also agree with the State that Section 102.021(1) of the Texas
Government Code, authorizing an assessment of court costs against
convicted defendants, was intended by the Legislature as a nonpunitive
9
“recoupment of the costs of judicial resources expended in
connection with the trial of the case.” (emphases added)
Weir v. State, 278 S.W.3d 364, 365-66 (Tex. Crim. App. 2009). What is especially
intriguing about Weir, is that this Court adopted wholesale the State’s proffered
definition of what a court cost should be. And that definition is not significantly at
odds with Carson.
In another unanimous decision, this Court reaffirmed Weir:
Instead, court costs are compensatory in nature; that is, they are “a nonpunitive
recoupment of the costs of judicial resources expended in
connection with the trial of the case.” Id. at 366 (quotations
omitted).(emphases added)
Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011).
And again in Johnson v. State, this Court unanimously explained:
However, court costs are not part of the guilt or sentence of a criminal
defendant, nor must they be proven at trial; rather, they are “a
nonpunitive recoupment of the costs of judicial resources expended in
connection with the trial of the case.” See Armstrong, 340 S.W.3d at 767
(quoting Weir, 278 S.W.3d at 366-67).
Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014).
All three of these cases have been relied upon repeatedly by the lower courts of
appeals: See e.g., Davila v. State, 441 S.W.3d 751, 762 (Tex. App.—Houston [1st Dist.]
2014, pet. ref’d); Houston v. State, 410 S.W.3d 475, 477 (Tex. App.—Fort Worth 2013,
no pet.); Drisker v. State, 03-13-00356-CR, 2014 WL 4063339, at *1 (Tex.
App.—Austin Aug. 14, 2014, no pet.); Coronel v. State, 416 S.W.3d 550, 556 (Tex.
App.—Dallas 2013, pet. ref’d); Habib v. State, 431 S.W.3d 737, 743 (Tex.
App.—Amarillo 2014, pet. ref’d); Edwards v. State, 09-13-00360-CR, 2014 WL
1400747, at *3 (Tex. App.—Beaumont Apr. 9, 2014, no pet.) Cantrell v. State,
10
10-12-00269-CR, 2014 WL 2069279, at *5 (Tex. App.—Waco May 15, 2014, no pet.);
Hill v. State, 440 S.W.3d 670, 674 (Tex. App.—Tyler 2012, no pet.). (List not
exhaustive).
5. The State’s opinion that this Court should adopt a test from
Oklahoma fails to consider appropriate precedent.
The State’s suggestion that this Court adopt the Oklahoma test for criminal
court cost validity assumes the absence of an existing test here in Texas. As explained
above, this Court would have to disavow its statements in many more cases than
Carson before there would be no Texas test.
B. An illegitimate court cost is a tax - according to the State’s cited
authority.
Part Two of the rationale is that an illegitimate court cost is not a court cost at
all, but is in reality a tax. The State takes issue with this idea, calling it “highly tenuous
and mostly semantic.” (State's Brief at 12).
The State refuses to recognize that a court cost deemed to be invalid - no
matter what the test for invalidity - is essentially a tax. All four cases the State cites
as support for its argument actually refer to an improper court cost or filing fee
as a tax. (See State's Brief at 12-13):
1. Carson, 159 S.W.2d at 127(reasoning that “the tax imposed by the bill is
not and cannot be logically considered a proper item of cost in litigation,
particularly in criminal cases);
2. LeCroy v. Hanlon, 713 S.W.2d 335, 338 (Tex. 1986)(the $40 tax allocated
to state general revenues...);
3. State v. Claborn, 1994 OK CR 8, 870 P.2d 169, 171 (Okla. Crim. App.
1994)(holding that “as long as a criminal statutory assessment is
reasonably related to the costs of administering the criminal justice
11
system, its imposition will not render the courts ‘tax gatherers’ in
violation of the separation of powers doctrine);
4. Crocker v. Finley, 99 Ill. 2d 444, 452, 459 N.E.2d 1346, 1349
(1984)(holding “[t]he $5 charge at issue, referred to by statute as a fee, is
in reality a tax).
The first of the four cases cited by the State is LeCroy v. Hanlon, 713 S.W.2d 335
(Tex. 1986). At issue in LeCroy was a statute requiring district clerks to collect a
$75.00 filing fee in a civil case. The county was to retain $35.00 and send the
remaining $40.00 to the State Comptroller for deposit in the State's General Revenue
Fund. The Texas Supreme Court described the problem with the $40 portion of the
filing fee as follows:
The major defect with the filing fee is that it is a general revenue
tax on the right to litigate: the money goes to other statewide programs
besides the judiciary. Nearly all states with similar open courts
provisions have held that filing fees that go to fund general welfare
programs, and not court-related services, are unconstitutional.
Id. at 342 [footnote omitted].
LeCroy is a civil case involving a filing fee instead of a criminal case involving a
criminal court cost and the constitutional provision at issue is the Texas Open Courts
Provision instead of the separation of powers clause. But the Supreme Court's
conclusion is relevant in cases that challenge criminal court costs. When a court cost
goes to statewide programs other than the judiciary, the cost is a general revenue tax.
Id. This is not semantics; it's the law.
Another of the four cases cited by the State is State v. Claborn, 870 P.2d 169
(Okla. Crim. App. 1994). (State's Brief at 13). The State had this to say about Claborn:
But in Claborn, the Oklahoma Court of Criminal Appeals
addressed the viability of a prior opinion that held a court cost was a tax
12
if it did not “bear a true relation” to the expenses of the prosecution at
hand. 870 P.2d at 171. It noted that this holding was unsupported by
statutes or case law, and other jurisdictions have “adopted a more
relaxed standard.”
(State's Brief at 13).
Nothing in the literal wording of the State's comments about Claborn is
inaccurate. But the State's citation of Claborn in support of its contention that an
invalid court cost is not a tax is at least misguided. The State’s comments about
Claborn are intended to suggest that the Oklahoma Court of Criminal Appeals said an
invalid court cost is not a tax. This is not the case at all.
The Claborn Court never said an invalid court cost is not a tax. Rather, the
Court disagreed with its previous opinion invalidating a fee that did not bear a true
relation to the expenses of the particular prosecution. Claborn v. State, 870 P.2d at 171.
The Claborn Court felt the test for determining the validity of a criminal court cost
should be broader. Never did the Claborn Court disagree with the idea that an invalid
criminal constitutes a tax. This is clear from the Oklahoma Court of Criminal
Appeals’ holding in Claborn:
Today we reject the rigid standard adopted in Coffelt. It is, of course,
incumbent on this Court and the judicial branch in general to carefully
preserve and protect the separate powers assigned to each of the three
branches of government by our constitution. With this in mind, we hold
that as long as a criminal statutory assessment is reasonably related to the
costs of administering the criminal justice system, its imposition will not
render the courts “tax gatherers" in violation of the separation of powers
doctrine.
Id. (“The various assessments are reasonably related to the costs of administering the
criminal justice system and are not simply an executive branch ‘tax.’”).
13
C. A statute requiring the judicial branch to assess and collect taxes
violates the separation of powers.
Part Three of the rationale is that the power to collect taxes is a function of the
executive branch - not the judicial branch. Thus, a statute requiring the judicial
branch to assess and collect taxes - albeit taxes disguised as court costs - violates the
separation of powers.
The State does not accept this argument. The State contends that even if the
cost is a tax, the assessment of the cost by the courts does not make them tax
collectors. (State's Brief at 13). If courts are tax collectors, the State says, then
business owners who charge sales taxes and forward them to the comptroller are also
tax collectors. Id.
Further, the State argues that delegations of authority to one branch of
government that are more properly attached to another branch are not always
unconstitutional. Id. at 14. The State finds support for this argument on this Court's
opinion in State v. Rhine, 297 S.W.3d 301, 305 (Tex. Crim. App. 2009). The State says
that whether such a delegation is unconstitutional “is essentially a matter of degree.”
(State's Brief at 14).
1. Texas state courts should not act as tax-gatherers.
Statutes requiring courts to assess court costs that are actually taxes render the
courts “tax gatherers” in violation of the separation of powers doctrine. State v.
Lanchos, 980 So. 2d 643, 654 (La. 2008). Even the Oklahoma case oft-cited by the
State to support its various arguments acknowledges this truth. State v. Claborn, 870
P.2d 169, 171 (Okla. Crim. App. 1994) (“court cost not reasonably related to costs of
14
administering criminal justice system renders courts ‘tax gatherers’ in violation of
separation of powers”).
The State’s argument in opposition to these cases contains no cases saying
otherwise. The Rhine case does not hold to the contrary. Apparently, no cases hold to
the contrary.
The State's assertion that courts cannot be tax collectors because retailers who
collect taxes would then have to be tax collectors is of no moment. Retailers do serve
as tax collectors of sorts. But by collecting sales taxes and remitting them to the State
Comptroller, retailers do not perform a duty belonging to another branch of
government. Retailers are not a branch of government. If anything, retailers serve as
agents of the executive branch of government. The courts, on the other hand, are
part of the judicial system:
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.
T EX. C ONST. ART. II, § 1. This provision is violated when one branch of government
is delegated a power that is more appropriately attached to another branch. Armadillo
Bail Bonds v. State, 802 S.W.2d at 239. Thus, a statute imposing upon the judicial
branch a power of government belonging to the executive branch would violate the
doctrine of separation of powers.1
1
See Forbes v. Texas Dep't of Public Safety, 335 S.W.2d 439, 442-43 (Tex. Civ. App. -
Waco 1960, no writ) (separation of powers provision applies to statutes involving exercise
by the courts of non-judicial powers); Accord Buback v. Romney, 156 N.W.2d 549, 558
15
2. The Power to Collect Taxes is an Executive Branch Function.
The Comptroller of Public Accounts is one of six officers constituting the
executive department of the State of Texas. T EX. C ONST., A RT. IV, S EC. 1. The
Comptroller is to perform such duties as may be required by law. T EX. C ONST., A RT.
IV, S EC. 23. As stated in the Comptroller's “Agency Strategic Plan” for 2011-2015,
the Comptroller serves as “Texas’ chief tax collector” and “collects taxes and fee
owed to the state.” 2 Chapter 403 of the Government Code sets out many of the
Comptroller's duties in this regard. Because the Comptroller is an executive branch
officer, the power to collect taxes resides in the executive branch of state government.
Unlike the executive branch, the judicial branch is not empowered to collect
taxes. Rather, the judicial branch is charged with exercising the “judicial power” of
the state which has been defined by the Texas Supreme Court as follows:
Judicial power is the power of a court to decide and pronounce a judgment
and carry it into effect between persons and parties who bring a case before
it for a decision.
Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 644 (1933). Nothing in the definition
of judicial power suggests that courts have the power to collect taxes.
The courts are not agents of the executive branch. When the courts collect
taxes, they usurp the duty of the executive branch to collect taxes. This is a violation
of the separation of powers doctrine.
(Mich. 1968) (Michigan Supreme Court struck down statute imposing executive branch
functions on the judicial branch).
2
Agency Strategic Plan 201-2015, Susan Combs Texas Comptroller of Public
Accounts, page 7. The strategic plan can be accessed online at:
http://www.cpa.state.tx.us/taxbud/strategic/96-361-10.pdf.
16
III. The First Court of Appeals was correct under any test of a valid court
cost.
The State believes the Carson test is invalid. Mr. Peraza believes it is binding
precedent upon this court and the DNA fee is unconstitutional under that test.
The State further averred that without Carson, there is no test in Texas. (State’s
brief at 11). Actually, there is a test under Weir and Armstrong. The Court’s
determination in Weir is very similar to Carson and the DNA record fee fails under that
test.
The State would like this Court to overrule Carson and Weir and Armstrong to
craft a new rule based upon an Oklahoma case, Claborn. Even if this Court were to do
that, the DNA record fee still fails.
A. Under the Carson test, the DNA record fee is unconstitutional.
In Carson, this Court held that a $1 law library court cost fee “constituted an
unconstitutional tax, not a legitimate court cost, because it was “neither necessary nor
incidental to the trial of a criminal case.” Peraza, 2014 WL 7476214, at *5.
The First Court of Appeals explained why the DNA record fee failed under
Carson “[a]nd the revenue collected via the ‘DNA Record Fee’ to be used by DPS for
anything covered by chapter 411, subchapter G, or for crime laboratory accreditation
under Government Code section 411.0205, is not closely enough related to appellant's
criminal trial to be considered constitutional”:
The court in Carson, which constitutes binding precedent on this Court,
held that fees which are “neither necessary nor incidental to the trial of a
criminal case” are not legitimate courts costs that may be assessed
against a defendant. 159 S.W.2d at 127, 130. As discussed above, the
responsibilities of TxDOT, which under the Code of Criminal Procedure
is entitled to use thirty-five percent of the revenue collected by the
17
“DNA Record Fee,” do not relate to the trial of a criminal case.
Instead, the responsibilities of TxDOT are far more remote from a
criminal trial than the county law libraries which were to be used by
the judges and attorneys for trial preparation in Carson. Thus, it cannot
be reasonably concluded that the portion of the revenue collected
through the “DNA Record Fee” and dedicated to the state highway fund
constitutes a proper court cost to be assessed against appellant or any
other criminal defendant.
Peraza, 2014 WL 7476214, at *7-8
And as for the sixty-five percent dedicated to the criminal justice planning
account - the Court of Appeals aptly explained how the money, from the general
revenue fund, provides grants to a host of programs entirely unrelated to the trial of a
criminal case:
Moreover, the CJD has awarded money from the fund to a variety
of recipients, such as the Alamo Area Council of Governments for
Regional Police Training Academy, the Bastrop County Women's
Shelter for SAINT: Sexual Assault Integrated Nursing Team, Fort
Bend County for the “Saved by the Bell” Delinquency Reduction
Program, the Katy Christian Ministries for Counseling Services for
Victims of Domestic Violence, and The Family Place for
S.T.A.R.T. (Students Tackling Abusive Relationships Together). See,
e.g., Press Release, Office of Governor Tex., Gov. Perry Awards $8
Million in Grants to Improve Criminal Justice Systems (Sept. 10, 2008),
http:// governor.state.tx.us/news/press-release/11114/ (listing
seventy-nine recipients that received more than $8 million in grants from
criminal justice planning fund); Press Release, Office of the Governor of
Tex., Gov. Perry Awards $195,000 From State Criminal Justice Planning
Fund, supra (stating more than $195,000 in grants from criminal justice
planning fund awarded to Wood County for Wood County Rural
Prosecutor Project and Beyond Missing Inc. for Texas Amber Alert
Network); Press Release, Office of Governor, Governor Rick Perry
Announces Statewide Grant to Reduce School Dropouts (Nov. 7, 2001),
http:// governor.state.tx.us/ news/press-release/4229/ (announcing
$168,146 criminal justice planning fund grant to Behavioral Health
Institute of Waco to assist with “efforts to reduce school failure,
dropout rates, and juvenile crime”); see also Helpful Questions and
Answers for Managing Grants, supra, at B–12 (listing activities
eligible for grants from criminal justice planning fund, such as job
training, professional therapy and counseling, school based
18
delinquency prevention, substance abuse, and peer support
groups).(emphases supplied)
Peraza, 2014 WL 7476214, at *10.
Additionally, the State contends that the Court of Appeals’ determination that
past grant recipients were “unworthy of court cost financing” is a “complaint directed,
not at the statute, but at the grant award practices of the criminal justice division of
the Governor’s Office.” (State’s brief at 10). The problem is with the statute - it is
exceedingly broad and written without any concern of supporting the courts that
collected the fee:
(a) The governor shall establish a criminal justice division in the
governor's office to:
(1) advise and assist the governor in developing policies,
plans, programs, and proposed legislation for improving
the coordination, administration, and effectiveness of the
criminal justice system;
(2) administer the criminal justice planning fund;
(3) prepare a state comprehensive criminal justice plan, to
update the plan annually based on an analysis of the state's
criminal justice problems and needs, and to encourage
identical or substantially similar local and regional
comprehensive criminal justice planning efforts;
(4) establish goals, priorities, and standards for programs
and projects to improve the administration of justice and
the efficiency of law enforcement, the judicial system,
prosecution, criminal defense, and adult and juvenile
corrections and rehabilitation;
(5) award grants to state agencies, units of local
government, school districts, and private, nonprofit
corporations from the criminal justice planning fund for
programs and projects on consideration of the goals,
priorities, and standards recommended by the Criminal
Justice Policy Council;
T EX. G OV'T C ODE A NN. § 772.006. The intimation that perhaps the Governor’s
office was dispensing grants not according to the statute is without authority.
19
1. The State’s argument that the Court of Appeals
determination is “speculative” fails. (State Brief at 8).
The State believes the Court of Appeals “speculated” when detailing what the
statute says the money is used for. (State brief at 8). The Court of Appeals relied upon
the plain language of the statute as to what the DNA record fee supports. See Peraza,
2014 WL 7476214, at *5. When discerning the meaning of a statute, the reviewing
court should start its analysis by looking at the plain language of the statute in
question. Ex Parte Whiteside, 12 S.W.3d 819, 821 (Tex. Crim. App.2000). If the statute
is clear and unambiguous, the plain meaning of its words should be applied. Boykin v.
State, 818 S.W.2d 782, 785 (Tex. Crim. App.1991).
Additionally, the plain language of the statute dictates that the collected money
go into the general revenue fund. Peraza, 2014 WL 7476214, at *5, 8. The depositing
of a court fee in the general revenue fund is sufficient to find the fee unconstitutional:
Charging litigants who can pay a reasonable fee for judicial support
services does not violate the open courts provision. Filing fees and court
costs are usually constitutional. LeCroy v. Hanlon, 713 S.W.2d 335, 342
(Tex.1986). However, a filing fee deposited in the state's general revenue
fund is an arbitrary and unreasonable interference with a litigant's right
of access to the courts. It is unreasonable and arbitrary because it is
a general revenue tax on the right to litigate. LeCroy, 713 S.W.2d at
341. The money collected can go to programs other than the judiciary.
LeCroy, 713 S.W.2d at 341. It is immaterial that the State spends
money from the general revenue fund on the judiciary. See LeCroy,
713 S.W.2d at 342. (Emphases added).
Dallas County v. Sweitzer, 881 S.W.2d 757, 765 (Tex. App.—Dallas 1994, writ denied).
B. Under the Weir test, the DNA record fee is unconstitutional.
In Weir, this Court (wholly adopting the State’s argument) held:
We also agree with the State that Section 102.021(1) of the Texas
Government Code, authorizing an assessment of court costs against
20
convicted defendants, was intended by the Legislature as a nonpunitive
“recoupment of the costs of judicial resources expended in connection
with the trial of the case.”
Weir, 278 S.W.3d at 365-66. The “costs of judicial resources expended in connection
with the trial of a case” does not include funding the State highway system or the
Governor’s Criminal Justice Planning Fund. Recoupment is defined as “[t]he getting
back or regaining of something, esp. expenses.” Recoupment, Black’s Law Dictionary
(10th ed. 2014). A resource is the money that might be deployed in a given
circumstance.” Resource, Black’s Law Dictionary (10th ed. 2014). The Weir test
envisions the courts getting back money used with the trial of the case.
As explained supra, the DNA record fee was neither written nor apparently
envisioned to return money to the courts as recoupment. Under the Weir test, this fee
fails as a constitutionally valid court cost.
C. Under the Claborn test, the DNA record fee is unconstitutional.
The State has a different theory than what was offered and accepted by this
Court in Weir. Now, the State would prefer a more relaxed standard, if any, that a
court cost “need only be ‘reasonably related to the costs of administering the criminal
justice system.’” (State’s brief at 11, citing Claborn, 870 P.2d at 171). However, even the
“reasonably related” standard, the DNA record fee fails. The state highway fund is
not reasonably related. The Court of Appeals detailed explanation of the way funds
are statutorily utilized are wholly unrelated to the criminal justice system where the
funds:
may be used only: (1) to improve the state highway system; (2) to
mitigate adverse environmental effects that result directly from
construction or maintenance of a state highway by the department; or (3)
21
by the Department of Public Safety to police the state highway system
and to administer state laws relating to traffic and safety on public
roads.” T EX. T RANSP. C ODE A NN. § 222.001(a) (Vernon 2011).
Peraza, 2014 WL 7476214, at *5. The Criminal Justice planning committee in theory
would seem to support the courts, but the statute is so broad that in effect, it fails to
do that. Advising the “governor in developing policies, plans, programs, and
proposed legislation for improving the coordination, administration, and effectiveness
of the criminal justice system” is not reasonably related to the criminal justice system.
T EX. G OV'T C ODE A NN. § 772.006 (a)(1).
IV. Public Policy dictates that courts should collect only fees that support
the courts.
[C]lerks of court should not be made tax collectors for our state, nor
should the threshold to our justice system be used as a toll booth to
collect money for random programs created by the legislature. - Supreme
Court of Louisiana
Carl Reynolds and Jeff Hall, 2011-2012 Policy Paper Courts are not Revenue Centers, p. 4.
http://cosca.ncsc.org/~/media/Microsites/Files/COSCA/Policy%20Papers/Courts
AreNotRevenueCenters-Final.ashx. (last visited April 22, 2015).3
The report is must reading for anyone working in the court system to get a
broad understanding of the depth and breadth of the issues in “court costs.” The
proposed principles set out by Mr. Reynolds and Mr. Hall would result in a better
court system and a fairer one for defendants, in general:
The proliferation of these fees and costs as chargeable fees and costs
included in the judgment and sentence issued as part of the legal
financial obligation of the defendant has recast the role of the court as a
collection agency for executive branch services.
3
Carl Reynolds is the former administrative director of the Texas Office of Court
Administration.
22
Id., at p. 9. That is exactly what is happening here in Texas.
For example, in 2010 numbers are publicly available contrasting State revenue
from court costs and filing fees with State judicial branch expenditures. The State
realized $431,793,084 from criminal court costs and civil filing fees.4 But the
Legislature budgeted only $335,128,621 for the judicial branch.5
Thus, the State took in nearly $100 million more from the court system than
the State spent on the courts ($431,793,084 - $335,128,621 = $96,664,463). Money
collected from the court system and directed to programs outside the judiciary does
not come back to the courts. Rather, the courts are used as a profit center to fund
general government programs. In other words, criminal defendants and civil lawsuit
filers pay not only to support the courts, but also to fund general government
programs. This practice violates the principle of separation of powers and is therefore
unconstitutional.
V. Conclusion
The DNA record fee is not for DNA testing. The statutes make clear that this
money is collected for the general revenue fund. The State closes its brief by declaring
that “[h]aving been convicted of a crime, Appellant must share in those costs.”
(State’s brief at 15). Yes - having been convicted of a crime, Mr. Peraza should
rightfully pay costs necessary or incidental to his trial or to recoup the costs of his
4
http://www.lbb.state.tx.us/Other_Pubs/Financing%20the%20Judiciary%20in
%20Texas%20Legislative%20Primer%202011.pdf
5
http://www.lbb.state.tx.us/GAA/General_Appropriations_Act_2010-11.pdf
page IV-45.
23
criminal trial. He should not pay for highway funding or grant funded programs
wholly unrelated to the trial of a criminal case.
P RAYER
Mr. Peraza prays this Court affirm the modification of judgments and find that
the DNA record fee is unconstitutional.
Respectfully submitted,
A LEXANDER B UNIN
Chief Public Defender
Harris County Texas
/s/ Jani J. Maselli Wood
______________________
J ANI J. M ASELLI W OOD
Assistant Public Defender
Harris County Texas
1201 Franklin, 13th Floor
Houston Texas 77002
Jani.Maselli@pdo.hctx.net
(713) 368-0016
(713) 368-4322
TBA No. 00791195
24
C ERTIFICATE OF S ERVICE
Pursuant to Tex. R. App. Proc. 9.5, this certifies that on April 23, 2015, a copy
of the foregoing was served electronically to counsel for the state (through
texfile.com) at the following address:
Lisa McMinn
State Prosecuting Attorney
P.O. Box 13046,
Austin, TX 78711
information@spa.texas.gov
/s/ Jani Maselli Wood
______________________________
JANI J. MASELLI WOOD
25
CERTIFICATE OF COMPLIANCE
Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this
petition complies with the type-volume limitations of Tex. R. App. Proc. 9.4(i)(2)(D).
1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this
petition contains 6796 words printed in a proportionally spaced typeface.
2. This petition is printed in a proportionally spaced, serif typeface using
Garamond 14 point font in text and Garamond 14 point font in footnotes produced
by Corel WordPerfect software.
3. Undersigned counsel understands that a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in Tex. R. App.
Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against
the person who signed it.
/s/ Jani Maselli Wood
____________________________
JANI J. MASELLI WOOD
26