Untitled Texas Attorney General Opinion ( 1980 )

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The Attorney General of Texas
May 28, 1980
MARKWHITE
Attorney General
Honorable Jimmy Mankins, Chairmzn Opinion No. MW-184
Committee on Employment Practices
Texas House of Representatives Re: Procedure in sssessing costs
P. 0. Box 2910 in the Crime Victims Cdmpensation
Austin, Texas 78769 Act, article 8309-1, V.T.C.S.
Dear Mr. Msnkirr9:
You have asked our opinion in construiq article &309-l, V.T.C.S., the
Crime Victims Compensation Act. The relevant p&ion of the Act reads:
Sec. 14 (a) The Compensation to Victims of Crime
Pmd is created in the State Treasury to be used by
the board for the payment of compensation to
claimants tmder this Act and other expenses in
administering this Act. The board shall make no
payments which exceed the amount of money in the
fmd. No general revenues may be used for payments
under this Act.
(b) A. person shall pay $15 A a court cost, in
addition to other court costs, on conviction of any
felary and shall pay $10 as a court cost, in addition to
other court costs, on conviction of a misdemeanor
punishable by imprisonment oc by a fine of mo?e than
$200.
(c) Court costs mder this section are collected in
the same mann& as other fines or costs.
Your fist question Is:
Should the coats provided in Article 83094 be
assessed on probated cases?
It is well established that the ‘granting of probation in a felony case
suspends only the sentence, not the conviction, which is final cmce the right
of appeal is exhausted. Clapper v. State, 562 S.W.Od250, 252 (Tex. Crim.
App. 1978); Savant v. State, 535 S.W.2d 190, 191 (Tex. Crim. App. 1916);
p. 587
Honorable Jlmmy Mankim - Page Two (I4+1841 ,’ ‘..
S.W.2d 122 (Tex. Crhn. Aw. l973)1 Ses Coot& v. Texas Board of
489 S.W.2d 129, 132 (Tex. Civ. AC- P 1972, writ rerd
414 U.S. 1072, (1972), rah. denied, 414 U.S. ll7y(lS74), (probated
felony conviction resulted in license nsvocationk A ttorney General Opinions MW-133
0980X M-1057 ,(1972).
Ths 1979 amendments to article 42.13, sections 3 and 3a, Code of Criminal
Procedure, Misdemeanor Adult Probation and SupervIsion Law, track the language of
the felony probation statute, article 42.12, Code of Criminal Procedure. Article 42.12
provides in pert:
Sec. 3. Ths fudges of the courts of the State of Texas hvig
original jurisdiction of criminal actIons, when It shall appear to the
satisfaction of the court that the ends of justice and the best
interests of the public as well as the defendant will be s&served
thereby, shall have the power, after conviction Q a plea of guilty
for any crime or offanse, where the maximum punishmant assessed
against the defendant &es not exceed ten years Imprisonment, to
suspend the impcaition of the sentence and may place the
defendant cn probation Q Impose a fine applicable.to the offense
committed and also place the defalant ai probation as hereinafter
provided.
Sec. 3a. Where there is a conviction In any court of this State
and the punishment assessed by the jury shall not exceed ten yesrs,
the jury may recommend probation for a period of any term of
years authorized for the offense fa which the defendant was
convicted, . . .
The new srticle 42.13 now speaks in terms of %onviction” and Indicates that, like
fehy pmbation, misdemeanor probation suspm& only the sentence and not the
conviction. Attorney General Opinion MW-133(NO).
A dsZerred adjudication of guilt establishes a different procedure fcr probation. The
relevant portion of article 42.l3, section 36 provides
(a) When in its opinion the best interest of society and the
defendant .will be served, the court may, after receivirg a plea of
guilty or plea of mlo contendere, hear@ the evidence, and find@
that it stistantfates the defendant% guilt, defer further pro-
ceedillgs without entering sn adjudication of guilt, and place the
defendant cn p&&ion QI reasonable terms and amditions as the
court may require and for a period as the court may prescribe not
to exceed the maximum period of Imprisonment far the offense for
which defendant is charged. However, igpan written motion of the
defendant questifq final adjudication f&cl within 39 days after
enter- such pla and the deferment of adjudication, the court
shall proceed to fins1 adjudication as in all other cases.
p. 588
Honorable Jimmy Mankinr - Pege m NW-180
(b) On violation of a condition of probation im& rndv
Subsection (a) of this ssction, the defendant may be arrested and
detained ag provided in Section 8 of this Article. The defendant is
entitled to a heariw limited to the determination by the court of
whether it proceeds with an djudication of guilt on the criginsl
charge. No appeal may be taken from this determination. After an
adjudicatfon of guilt, all proceedfrsyq includ@ assessment of
punishment, pronouncement of sentence, grantiw of probation, and
defendant’s appeal continue ss if the adjudication of guilt had not
been deferred.
Ex psrte Laday (No. 63,379, Tex. Crim. App., Peb. 20, 1980) and Crutchfield v. State, 560
S.W.2d 685, 686 (Tex. Crim. App. 1978). both hold that an adjudication made rnder article
42.13, section 3d does not establish a judgment of conviction. A fhtal conviction is
recorded at a hearing held only if defendant has violated a condition of his original
probation. Walker v. State, 557 S.W.Zd 785,786 (Tex. Crim. App. 3977).
Therefore, since article 8309-1, section 14(b) speaks in terms of %nvictionn and
since in article 42.12, sections 3, 3a and article 42.13, sections 3, 34 adjudication of guilt
results in final conviction, costs should be assessed in those probated cases. In a probation
under article 42.13, section 3d, however, final conviction is deferred until the revocation
of probation, if any. Article 8309-l costs cannot be assessed until the court, in such a
case, grants fins1 conviction after the revocation.
Your second question is:
Are the costs provided in Article 8309-l to be assessed as to crimes
committed before September l, 19799
A similar question was addressed in Attorney General Opinion M-983 (l97l) which
involved a fee of 9250 denominated as costs of court and payable upon conviction of
certain misdemeanors. The opinion concluded that the fee could r&t be assessed QI
offenses committed prior to the effective date of the statute. On the basis of that
opinion, it is our opinion that the costs provided for in article 8309-l may Mt be collected
on conviction of a crime committed prior to September 1, 1979. -See Tex. Const. art.
I, S 16.
SUMMARY
A person granted probation under article 42.12, sections 3, 3a or
article 42.13, sections 3, 3a of the Code of Criminal Procedure has
a final conviction end, as such, should be assessed the costs
provided in article 8309-l. A person granted probation mdcr
article 42.13, section 3d of the Code of Criminal Procedure &es
not have a final conviction and cannot be assessed article 8309-l
P. 589
?horst.tle Jimmy Msnkim - P-0 POW W-184)
Cats knpaed by utiele 8309-1, V.T.C.S.., rn; not be
3 a~ amtictlon of crlmee commltted before Ssptamba I,
.
MARK WHiTR
Attorney General of Texas
JOHN W. PAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Dawn Bnmer
Assistant Attorney General
APPROVRD:
OPINION COMMIITEE
C:Robert Heath, Chairman
Dawn Bnmer
Susan Garrison
Ride Gilpin
Jim Simpkins
BNiX! YOW@hOd
p. 590