Texas Stamp


PD-1042-18 12/12/2018


“Whether the First Court of Appeals erred when it misinterpreted Peraza v. State, 467 S.W.3d 508 (Tex. Crim. App. 2015) and failed to apply Salinas v. State, 523 S.W.3d 103 (Tex. Crim. App. 2017) in determining that the summoning witness/mileage fee under Texas Code of Criminal Procedure Article 102.011 was not facially unconstitutional because the court cost was for a direct expense incurred by the State even though the statute does not direct the funds collected to be used for a legitimate criminal justice purpose?”


“This Court should overrule Carson, Peraza, and Salinas and return to the original understanding of Article II Section I of the Texas Constitution, which did not impose limitations on the Legislature’s ability to assess court costs.”

In assessing court costs, the trial court ordered Allen to pay $200 for “summoning witness/mileage.” On appeal, he claimed that fee assessed under Tex. Code Crim. Proc. art. 102.011 is unconstitutional because it constitutes a tax in violation of separation of powers.

The court of appeals upheld the fee. It recognized that Peraza v. State authorizes two distinct types of costs: (1) costs to reimburse for expenses incurred in connection with the prosecution, and (2) costs to off-set future criminal justice expenses. 467 S.W.3d 508 (Tex. Crim. App. 2015). The court also observed that Salinas v. State addressed the future-use costs category and held that such costs, to be valid, must be used for legitimate criminal justice purposes. 523 S.W.3d 103 (Tex. Crim. App. 2017). In this case, the fee is intended to recoup criminal justice expenses incurred during the prosecution of the defendant. The controlling rationale is the source of the fee, not how it will be spent in the future. So the fact it may later be deposited in the State’s general revenue fund is irrelevant. The failure to segregate the money into a separate account does not make courts tax gatherers when the fee is tied to past expenses.

Justice Jennings dissented. He claimed that Peraza did not create the dichotomy the majority relies on. Peraza, and later Salinas, focused on the subsequent expenditure for legitimate criminal justice purposes.


Echoing Justice Jennings’ complaints, Allen argues that the court of appeals’ decision conflicts with Peraza and Salinas. Constitutionality depends on whether the cost is statutorily directed to be expended for criminal justice purposes, regardless of whether it is directly related to the defendant’s trial or is a recoupment cost.  The infirmity is the statute’s failure to direct the funds to be used for something that serves a criminal justice purpose. As a result, they are deposited in the general revenue fund, and this is what makes the fee unconstitutional.


The State contends that the Court of Criminal Appeals has not, in either Ex parte Carson, 159 S.W.2d 126 (Tex. Crim. App. 1942), Peraza, or Salinas, considered whether its understanding of separation of powers is consistent with the original meaning of the Texas Constitution. The Court, instead, wrongly relied on cases from other states interpreting their constitutions, particularly Oklahoma. The State contends that the original court-cost scheme when Texas’ Constitution was adopted and in place until 1965 required defendants to pay virtually all costs, and much of the recoupment went into the State’s general revenue fund. In fact, prosecutors were paid per prosecution from the costs assessed to the defendant. The Court’s focus on where the costs are directed is inconsistent with the original understanding.

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