Untitled Texas Attorney General Opinion ( 1996 )

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DAN MORALES
AI-TORN’
GENERAL
EY January IO. 1996
The Honorable David Brabhsm OpinionNo. DM-372
Gregg County CriminalDistrict Attorney
101 Bast h&hvin street, suite 333 Rez Whetheramunicipalcouttofrewtd
Longvkw, Texas 75601 must impose wurt costs upon a juvenile
offender who participates in a “teen wurt”
program (RQ-7’51)
Dear Mr. Brabhanu
You ask whether a municipal wurt of record must impose, upon a juvenile
offender who participates in a “teen court” program pursuam to Code of Criminsl
Procedure (‘todew) article 45.55, any court costs other than the ten-dollar adnGstmtive
fee that the wurt may impose under subsection (e) of that article. We believe that nothing
in article 45.55 negates a court’s obligation or discretion to impose court costs that are
chargeable by other law, except that for offenses committed on or a&r
Sqtember 1.1995, the court is not rewired to charge any other wurt wsts, but it may do
so.
You contend that the provision in subsection (e) for a maximumten-dollar fee that
a justice or municipal court may rewire of a person who requests a teen court progrsm
operates to exclude the imposition of any other wurt costs. The first sentence of
subsection (e) reads as follows: “The justice or municipalwurt may require a person who
requests a teen court program to pay a fee-not to exceed SJO that is set by the court to
cover the wsts of administeting this article.” The legishture thus expressed its intent that
the ten-dollar fee is to cover the administmtivecosts of a teen court program under article
45.55, not to cover other wurt costs. Article 45.55 is silent as to the imposition of other
wlut costs.
You ibrther contend that this silence indicates legislative intent to disallow the
imposition of any other wsts of wurt on 8 person who requests a teen court program
under article 45.55 because code article 45.54(l) exprdy providw for the defendant’s
“ppent of ail court costs” as a condition to the wmt’s authority to defbr prwwdings
and grant probation under that article.’ Your tea.wning is that “[i]fthe Legislature had
The Honorable David Brabham - Page 2 (DM-372)
intended to assess wurt costs under Art. 45.55, it surely could have stated that
rquirement clearly, as it did in Art. 45.54(l).”
We do not believe this reasoning is correct. Costs in criminal cases generally are
not wkcted until after they are assessed as pert of the punishment,see Expcate Carson,
159 S.W.Zd 126, 129 (Tex. Crbn. App. 1942); see generu& Code Grim. Proc. ch. 102
(wntaining various provisions for costs payable by convicted defendant), so the purpose
of the addition of the aforementioned language to article 45.54 is to speci@ that costs
under that article must be paid bcfbre or ut the same time (LFthe wurt grants def” and
probation. &e Attomey General Opinion Jh4-526 (1986) et 5. Thus, the presence of an
express provision for payment of costs in cuticle45.54 has an independent signiticanccthat
makes it unnecusary to make (Lstmined infkrenw that the legislature intended that costs
not be chargeable in other articles where such a provision is absent.
A recent amendment to cuticle45.55 makes clear that the legislature did not intend
to disallow the imposition of other costs of court on a person who requests 8 teen court
program under article 45.55. The Seventy-fourth Legislature added a new subsection (g)
to article 45.55, see Act ofMay 27, 1995. 74th Leg., RS., ch. 598, 0 1, 1995 Tex. Sess.
Law Serv. 3436, 3436, which applies only to offenses wmmitted on or after
September 1. 1995. id. 8 2, at 3436, the eiTectivedate of the statute, id. 8 3. at 3436.
This subsection (gy provides as follows: “A justice or municipal court may exempt 8
defendant for whom proceed@ are defared under this article Tom the requirement to
pay a court cost or fee that is imposed by another statute.” Id. 8 1. at 3436. This
provision would be meaningless if other costs were not chargeable. Therefore, for
offbnses wmmitted on or a&r September 1,1995, the court is nof requiredto chargeany
other court costs, but it mcrydo so.
Fiily, you question whether the imposition of any court costs under article 45.55
would be wnstitutional in light of Attorney General Opiion JM-1124. In that opinion we
held that another statutory provision, section 2 of the Seventy-6rst Legislature’s Senate
Bii 1085, Act of May 28, 1989, 71st Leg.. RS., ch. 347, 1989 Tar. Gen. Laws 1316.
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TheHonorab1eDavidBnbha.m - Page 3 (DM-372)
1317, was unconstitutional es applied to V.T.C.S. article 6701d, section 143A(s)(l),
which grants discretion to rxcourt to defer criminalproceedings without the necessity of a
plea, a judgment, or an application for deferral by the defwdant. Attorney General
Opiion M-1124 (1989) at 6-7. In that opinion we explainedthe wnstitutional problem
with Senate Bii 1085 as follows:
Under Senate Bii 1085 a person may be considered convicted
where the “court defers tinal disposition of the case.” [Act of
May 28, 1989,flst Leg., RS.. ch. 347. Q2, 1989 Tex. Gen. Laws.
1316, 1317.1 If applied to subsection (a)(l) ofsection 143A of
lrticle 6701d. the result would be that a judgment reflecting guilt of
the defwdant would be entered without the defendant having
received any semblance of a trial. Instead, under subsection (a)(l)
the court merely defers procwdiigs to allow the defendant time to
complete a driving s&y course. No plea is required nor is there any
adjudication of guilt or entry of judgment. We believe that to allow
court costs to be assessed upon the basis of a statutory assumption of
guilt of a defendant under these cbumutwces is to deprive the
defendant of propaty without due process of law. Such a procedure
allows a wtiction to be entered against a defbndant without having
afforded the defendant his wnstitutioneJ right to a trial.
Id. at 7.
Article 45.55 is easily distinguished from the staMe held unwnstitutional in
Attorney General Opiion M-1 124. Subsection (a) of the article permits deferral end
probation only if the defendant, among other thin&, “pleads nolo wntendere or guilty to
the offense in open court with the defendant’s parent, guardii or managing conservator
present,” Code Crim. Proc. art. 45.55(a)(2), end “presents to the wurt an oral or written
request to attend a teen court program,” id. art. 45.55(a)(3). Thus the defendant may
choose to go to trial; the defkndant is not forced to suffer punishmentin the form of court
costs without a trial, as was the cdse with the statutes analyzed in Attorney General
Opiion IM-1124. Micle 45.55 therefore does not deprive the def’endantof property
without due process of law.
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The Honorable David Brabham - Page 4 (DM-372)
SUMMARY
Nothing in tuticle 45.55 of the Code of Criminal Procedure
negates 8 court’s obli@on or discretion to impose court costs that
8re chmgeableby other baw,except that for offenses wmmitted on or
8&r September 1, 1995, the court is not rquired to charge any
other court costs, but it may do so.
DAN MORALES
Attorney General of Texas
JORGE VBGA
Fii Assistlnt Attorney Generll
SARAH J. SHIRLEY
Ch8ir, opinion Committee
Prepared by James B. Pinson
Assistant Attorney Geneml
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