Hernandez, Nelson Alberto

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0036-19
NELSON ALBERTO HERNANDEZ, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S AND STATE’S
PETITIONS FOR DISCRETIONARY REVIEW
FROM THE FIRST COURT OF APPEALS
HARRIS COUNTY
Per curiam.
OPINION
Appellant was convicted of “assault-family member.” On appeal, he argued, inter
alia, that the judgment should be reformed to reflect a conviction for “assault,” and that the
$25 “district attorney” fee in the clerk’s bill of cost was unconstitutional. The Court of
OROSCO - 2
Appeals rejected Appellant’s claim regarding the judgment but agreed that the “district
attorney” fee violated separation of powers because the Art. 102.008(a) “does not state where
the $25 fee is to be directed.” Hernandez. State, 562 S.W.3d 500 (Tex. App.–Houston [1 st
District] 2017).
Both Appellant and the State have filed petitions for discretionary review of this
decision. We refuse Appellant’s petition.
The State challenges the appellate court’s holding about the constitutionality of the
fee provided for in Art. 102.008(a). We recently handed down our opinion in Allen v. State,
No. PD-1042-18, 2019 Tex. Crim. App. LEXIS 1172 (Tex. Crim. App. November 22, 2019),
in which we held that “a reimbursement-based court-cost statute need not direct the collected
funds to be expended for a criminal justice purpose in order to comport with separation of
powers principles.”
The Court of Appeals in the instant case did not have the benefit of our opinion in
Allen. Accordingly, we grant the State’s petition for discretionary review, vacate the
judgment of the Court of Appeals, and remand this case to the Court of Appeals in light of
our opinion in Allen.
DATE DELIVERED: January 15, 2020
DO NOT PUBLISH