'DNA record fee' deemed unconstitutional because funds hijacked for other uses

From her perch over at the Harris County Public Defender, Jani Maselli-Wood continues to peck away at the litany of court costs assessed against criminal defendants. Texas Lawyer has a report (Jan. 12) on her latest exploits:

Jani Maselli Wood, a public defender in Houston who is waging an appeals court battle over the constitutionality of court costs, recently won a favorable majority opinion knocking out two court costs levied against her client.

On Dec. 30, a panel of the First Texas Court of Appeals in Houston modified criminal convictions against Wood's client Osmin Peraza to delete a $250 "DNA record fee" from the judgments from each conviction on the ground that it is an unconstitutional tax, and also deleted a $50 "sheriff's fee" for "serving capias" because there is no basis in the record to support the charge. The court otherwise affirmed the judgment against Peraza, overruling Peraza's contention that the trial court erred when denying his motion to withdraw his guilty pleas to the two charges of aggravated sexual assault.

Wood, who joined the Harris County Public Defender's Office in 2011, was selected in 2014 as one of Texas Lawyer's Winning Women for her work challenging the constitutionality of court costs. She wants the money that criminal defendants pay in court costs to directly benefit the court system.

The First Court panel deciding Peraza v. Texas consisted of Justice Terry Jennings and former Justice Jim Sharp, who lost a reelection bid in November 2014. In a concurring and dissenting opinion, Justice Harvey Brown agreed with the majority that the trial court did not abuse its discretion in denying Peraza's motion to withdraw his guilty pleas and that the "unsupported" $50 sheriff's fee should be struck. However, Brown disagreed that the DNA record fee is unconstitutional.

Wood said she was gratified by the court's opinion on the court cost issues.

"It's the first time they have ever held it's unconstitutional under the separation of powers doctrine, that the courts are not tax collectors," Wood said. "It was the first time they've gone along with my theory that you can't fund general government with court costs."

The $250 "DNA record fee" in particular was deemed unconstitutional because the state doesn't use it for what they say they're taking it for. Instead, money from the DNA record fee is split between the state highway fund and the general fund of the "criminal justice planning account," neither of which are "necessary nor incidental to the trial of a criminal case," according to the First Court ruling.

If courts begin deciding it's unconstitutional to assess fees for one purpose and use the money for another, the entire house of cards underlying Texas' budget edifice could quickly tumble, with implications far beyond just court costs. But that's speculation; for now this is a single Court of Appeals adopting this view on two particular fees. Jani's right to celebrate the win (congratulations!) but there are lots of vested interests out there with a stake in keeping that house of cards upright. And they'll all probably take a shot at her before her victory is ever extended statewide. Things get serious quickly when you start messing with people's money.