explaining that it is well-settled that a statute’s constitutionality should not be determined in any case unless that determination is “absolutely necessary to decide the case in which the issue is raised”
How later courts described this case
- explaining that it is well-settled that a statute’s constitutionality should not be determined in any case unless that determination is “absolutely necessary to decide the case in which the issue is raised”
- holding consideration in facial-constitutional challenge is “how the statute is written, not how it operates in practice,” and is “without regard to severability principles or to evidence of what the funds designated in the statute actually do”
- remanding a case to a court of appeals to consider the merits of a constitutional challenge to section 133.102 when after sentencing, a defendant objected to the section’s constitutionality
- it is well-settled that statute’s constitutionality should not be 11 determined in any case unless that determination is “absolutely necessary to decide the case in which the issue is raised” (internal quotations omitted)
Written by the judges who cited it.
The opinion
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0419-14
ORLANDO SALINAS, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
AND DISCRETIONARY REVIEW ON COURT’S OWN MOTION
FROM THE FOURTEENTH COURT OF APPEALS
HARRIS COUNTY
J OHNSON, J., delivered the opinion of the unanimous Court.
OPINION
A Harris County jury convicted Appellant Orlando Salinas of causing injury to an elderly
individual and assessed a sentence of five years in prison. Tex. Pen. Code § 22.04(a)(3), (f); Tex.
Pen. Code § 12.34(a). After sentencing appellant, the trial court assessed a consolidated court cost
of $133 pursuant to Texas Local Government Code section 133.102. Relying on this Court’s
2
decision in Ex parte Carson, 159 S.W.2d 126 (Tex. Crim. App. 1942),1 appellant argued that the
consolidated court cost of Tex. Local Gov’t Code section 133.102 is a tax and is therefore
unconstitutional. The trial court overruled appellant’s objection.
On appeal, the court of appeals considered appellant’s complaints about two evidentiary
issues and his challenge to the constitutionality of the consolidated court costs and affirmed the trial
court’s judgment. Salinas v. State, 426 S.W.3d 318 (Tex. App.–Houston [14th Dist.] 2013, pet.
granted). Appellant’s petition for discretionary appeal raises only the challenge to the
constitutionality of the consolidated court costs. We reverse the judgment of the court of appeals
and remand the cause to that court so that it may consider appellant’s claim of facial
unconstitutionality as to the consolidated court costs under the correct standards.
The Opinion of the Court of Appeals
In addressing appellant’s argument that Section 133.102 was facially unconstitutional, the
court of appeals held that
[i]n any event, appellant’s facial constitutional challenge to section
133.102(a)(1) fails for at least two reasons.
The first reason is that appellant failed to satisfy his burden to show that the
statute is invalid in all possible applications because he has not established what the
funds designated in section 133.102(e) actually do. Appellant draws inferences from
the titles of these funds, makes assumptions about the uses to which the fees are put,
and invites us to do the same. We decline this invitation and refrain from assuming,
based on fund titles alone, that all uses to which portions of the fees could be put are
insufficiently related to the court system.
The second reason is that appellant fails to address severability principles
when he argues that the consolidated court cost amounts to an impermissible “tax”
because it is “primarily used to fund non-court programs.”
1
In Carson, this court held that a $1 court cost intended for a Law Library Fund was neither necessary nor
incidental to the trial of a criminal case and was therefore not legitimate. Carson, 159 S.W .2d at 127. The Carson court
also found the cost to be a discriminatory special or local law because it applied to certain counties, namely, Dallas and
Harris Counties, but not to other counties similarly situated, such as Tarrant, Bexar, and probably M cLennan, El Paso,
Galveston, and Jefferson Counties. Id. at 127-30.
3
Salinas, 426 S.W.3d at 327. Appellant petitioned this Court for review, and review was granted on
whether:
The Fourteenth Court of Appeals decision regarding the constitutionality of the
consolidated court cost on severability grounds (neither raised by the state nor briefed
by either party) failed to properly address the merits of the argument.
On this Court’s own motion, review was granted on the following question:
Whether the Fourteenth Court of Appeals decision that “appellant failed to satisfy his
burden to show that the statute is invalid in all possible applications because he has
not established what the funds designated in [Texas Local Government Code] section
133.102(e) actually do” is erroneous in light of clear precedent from this court in
reviewing facial challenges to the constitutionality of a statute.
The Constitutionality Question
It is well settled that “the constitutionality of a statute is not to be determined in any case
unless such a determination is absolutely necessary to decide the case in which the issue is raised.”
State ex rel. Lykos v. Fine, 330 S.W.3d 904, 909 (Tex. Crim. App. 2011); see also Ex parte Salfen,
618 S.W.2d 766, 770 (Tex. Crim. App. 1981). Because the issue raised before this court (whether
the court of appeals applied the proper standard in judging appellant’s facial challenge to Section
133.102) can be decided without deciding the constitutionality of that statute, we decline to do so.
That determination is left to the court of appeals on remand, when it may apply the appropriate
standard for a facial challenge to a statute and hold appellant to his proper burden.
Standard of Review
“Whether a statute is facially constitutional is a question of law that we review de novo.” Ex
parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). How the court of appeals answered a question
of law is itself a question of law that we review de novo. Although we are not asked directly whether
Section 133.102 is facially constitutional and thus do not address that question of law, the grounds
4
for review before us do ask whether, in light of clear precedent from this Court, the court of appeals
erred in deciding the question of law at issue.
Failing to Address Severability Principles
The court of appeals found that appellant failed in his facial challenge to Section 133.102 for
two reasons. The first reason was that appellant failed to show that the statute was invalid in all
possible applications because he had not established what the funds actually do. The second reason
was that appellant failed to address severability principles.
Appellant argues that the court of appeals erred by jumping directly to severability analysis
without first deciding whether that part of Section 133.102 was unconstitutional. The state argues
that the court of appeals correctly found that Section 133.102 was constitutional before conducting
its severability analysis “as a courtesy.”
We find that neither party is entirely correct. The court of appeals did not jump directly to
severability; it addressed the merits of appellant’s claim when it decided, as its first reason that the
statute is not facially unconstitutional, that appellant “has not established what the funds designated
in section 133.102(e) actually do.” On the other hand, severability is clearly not required under our
precedents, and the court of appeals improperly made severability analysis a part of appellant’s
burden when it cited the lack of such an analysis as its second reason for finding that appellant’s
facial challenge failed.
Analysis
“[To] prevail on a facial challenge, a party must establish that the statute always operates
unconstitutionally in all possible circumstances.” State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim.
App. 2013). Courts are to “consider the statute only as it is written, rather than how it operates in
5
practice.” State ex rel. Lykos, 330 S.W.3d at 908; see also FM Props. Operating Co. v. City of
Austin, 22 S.W.3d 868, 873 (Tex. 2000).
Severability
A facial attack on the constitutionality of a statute requires only that a party establish that the
statute in question operates unconstitutionally in all possible circumstances. While a facial challenge
to a statute is “the most difficult challenge to mount successfully,”2 a court may not make the
challenge more difficult by requiring the challenger to also show whether the allegedly
unconstitutional part of the statute is severable.3
On a more fundamental level, requiring a discussion of severability as a requirement to a
finding of facial unconstitutionality puts the cart before the horse. If a statute is constitutional on its
face, there is no need to address severability; there is nothing to sever. Only after a determination
that part of a statute is invalid will a court have occasion to discuss severability. By requiring
appellant to perform an analysis of the severability of the statute, the court of appeals did not
“properly address” the merits of appellant’s argument as to that issue. We therefore sustain
appellant’s first ground.
Failing to Establish What the Funds Actually Do
The court of appeals decided, as its first reason for finding that the statute was not
unconstitutional, that “appellant failed to satisfy his burden to show that the statute is invalid in all
possible applications because he has not established what the funds designated in [Texas Local
2
Rosseau, 396 S.W .3d at 557 (quoting Santikos v. State, 836 S.W .2d 631, 633 (Tex. Crim. App. 1992); Briggs
v. State, 789 S.W .2d 918, 923 (Tex. Crim. App. 1990); United States v. Salerno, 481 U.S. 739 (1987).
3
Salinas, 426 S.W .3d at 327 (“appellant failed to satisfy his burden to show that the statute is invalid in all
possible applications because he has not established what the funds designated . . . actually do.”).
6
Government Code] section 133.102(e) actually do” and that he drew inferences from the titles of the
Section 133.102(e) funds and made assumptions about the uses to which the fees are put. Salinas,
426 S.W.3d at 327.4 Appellant argues that such evidence was not necessary and that the court of
appeals should have relied on only the plain language of the statute.
In a facial challenge to a statute, evidence of how the statute operates in actual practice is
irrelevant; courts consider only how the statute is written, not how it operates in practice. State ex
rel. Lykos, 330 S.W.3d at 908-09; FM Props. Operating Co., 22 S.W.3d at 873; Karanev v. State,
281 S.W.3d 428, 441 (Tex. Crim. App. 2009) (Cochran, J., concurring) (facial attack “can and must
be made without reference to evidence . . .. Once it does or must refer to specific evidence it has
passed out of the ‘facial attack’ arena and has become something else.”).
By requiring appellant to show what the funds actually do, the court of appeals asked for
something neither permitted nor required in a facial challenge. Because the court of appeals’s
decision is clearly erroneous in light of clear precedent from this court, we also sustain the second
ground.
Conclusion
We find that the court of appeals did address the merits of appellant’s arguments. However,
the court of appeals addressed appellant’s arguments under an incorrect standard when it required
appellant to also address severability principles and to establish what the funds designated in Section
4
From our review of the record, that may have been true as to appellant’s initial brief to the court of appeals.
C.R. at 1195-1202. However, in his reply brief and amended reply brief, appellant confronts each fund, not based upon
just the names of the funds, but through discussion of each of the funds. Id. at 1249-64, 1296-1311. The briefs examine
the statutes governing the funds and point to statements in the state’s appellate brief where the state itself explained the
funds, who administers them, and their purposes. Appellant’s reply briefs also cite a newspaper article, various state
government websites, a report by the Legislative Budget Board, and a resolution by the Texas Judicial Council. The
appropriateness of these additional sources, under the rules for facial challenges to a statute that are discussed in this
opinion, are for the court of appeals to decide upon remand.
7
133.102 actually do. We emphasize that demonstrating what the funds actually do is not the same
as demonstrating what the governing statutes say about the intended use of the funds. See Peraza
v. State, ___S.W.3d ___ (Tex. Crim. App. 2015). We reverse the judgment of the court of appeals
and remand this case to that court to address the question of whether, based upon the statute as it is
written, Section 133.102 is unconstitutional on its face, without regard to severability principles or
to evidence of what the funds designated in the statute actually do.
Delivered: July 1, 2015
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