Opinion Number ( 2010 )

Dear Judge Lobrano:

Your request for an opinion from the Attorney General has been forwarded to me for research and reply. You requested an opinion concerning whether the monthly fee set forth in La.C.Cr.P. art. 895.1(F) should be assessed to individuals placed on local misdemeanor supervised probation. It is the opinion of the office that pursuant to La.C.Cr.P. art. 895.1(F) a monthly fee of not less than $5.50 must be ordered as a condition of probation when an individual is placed on felony or misdemeanor supervised probation even if the supervised probation is not handled by the Department of Public Safety and Corrections.

La.C.Cr.P. art. 895.1(F) provides in pertinent part:

F. When the court places the defendant on supervised probation, it shall order as a condition of probation the payment of a monthly fee of not less than five dollars and fifty cents. The monthly fee established in this Paragraph shall be in addition to the fee established in Paragraph C of this Article and shall be paid, collected, transmitted, deposited, appropriated, and used in accordance with the following provisions:

(1) The monthly fee established in this Paragraph shall be paid to the Department of Public Safety and Corrections.

(2) The monthly fee established in this Paragraph shall be deposited immediately upon receipt in the state treasury.

(3) After compliance with the requirements of Article VII, Section 9(B) of the Constitution of Louisiana relative to the Bond Security and Redemption Fund, and prior to monies being placed in the state general fund, an amount equal to that deposited as required by Subparagraph (2) hereof shall be credited to a special fund which is hereby created in the state treasury to be known as the "Sex Offender Registry Technology Fund". The monies in this fund shall be used solely as provided in Subparagraph (4) hereof and only in the amounts appropriated by the legislature.

* * * La.C.Cr.P. art. 895.1(F) establishes a fee that must be assessed to a criminal defendant who is placed on supervised probation.¹ The statute does not distinguish between felonies and misdemeanors nor does the statute allow the judiciary any discretion in whether the fee maybe assessed. By use of the word "shall" in Section (F), the legislature is mandating that this supervision fee must be charged to a defendant placed on supervised probation. Thus, it is clear from the plain language of the statute that the legislature intended for the monthly fee outlined in La.C.Cr.P. art. 895.1(F) to be ordered as a condition of probation for every individual who is placed on supervised probation.

In addition, the Louisiana Legislature's decision to enact La.C.Cr.P. art. 895.1(F) reflects its interest in protecting the children of our state by requiring individuals placed on supervised probation to pay an additional monthly fee to help fund the Sex Offender Registry Technology Fund. Since this interest is a priority, the legislature did not draft the statute to allow the judiciary any discretion in determining whether the fee may or may not be assessed. Consequently, the statute mandates that a judge who places a defendant on supervised probation must order as a condition of probation the payment of a monthly fee of not less than five dollars and fifty cents to be paid to the Department of Public Safety and Corrections which will then be credited to the Sex Offender Registry Technology Fund. Therefore, as a matter of law, the monthly fee in La.C.Cr.P. art. 895.1(F) must be ordered as a condition of probation for each individual placed on supervised probation.

I trust this adequately answers your question. Should you require further assistance, please contact our office.

Yours very truly,

JAMES D. "BUDDY" CALDWELL ATTORNEY GENERAL

BY:__________________________ MERIDITH J. TRAHANT Assistant Attorney General

¹ The fee found in La.C.Cr.P. art. 895.1(F) should be assessed in addition to the probation fee in La.C.Cr.P. art. 895.1(C). The fees collected pursuant to Section C are used to defray the costs of the agency supervising the defendant's probation which are payable to the Department of Corrections or local supervising agency, whoever is directing the probation. On the other hand, La.C.Cr.P. art. 895.1 requires that all fees collected under Section F must be payable to the Department of Public Safety and Corrections.