Untitled Texas Attorney General Opinion ( 1980 )

The Attorney General of Texas
April 7, 1980
MARK WHITE
Attorney General
Honorable Maurice S. Pipkin Opinion No. MW-162
Executive Director
State Commission on Judicial Conduct Re: Whether or not a county clerk
Austin, Texas may assess the fees prescribed in
article 1064, Code of Criminal
Procedure, in a case in which the
proceedings have been deferred and
ultimately dismissed pursuant to
article~67Old,section 143A.
Dear Mr. Pipkim
You have asked whether the county clerk’s fees provided for in article
1064?Code of Criminal Procedure, may be assessed in cases where the judge
in hw discretion defers the proceedings to permit the defendant to complete
a defensive drivbg course after which the charges are dismissed. V.T.C.S.
art. 6701d, S 143A. There is no provision for entry of a conviction nor finding
of guilt. After dismissal the evidence of the original charge may not be used
for any puqwe-. Id Such a deferred proceeding without entry of guilt has
been held constitu&al. ‘Baker v. State, 158 S.W. 998 (Tex. Crim. App. 1913).
Article 1064, Code of Criminal Procedure, provides:
(0 The clerks of the county courts, county courts at
law and district courts shall be allowed the followhtg
fees:
ml Md”Plaza.su,,*400
SanAntonio.TX.78205
.512/-2E-4191 (a) A fee of Fifteen Dollsrs ($15.00) in each’cause
filed in said courts: for filing complaints,
‘information, for docketing and taxing costs for each
defendant, for issuing original writs, issuing
subpoenas, for swearing and impaneling a jury,
receiving and recording verdict, for filing each paper
entered in this cause, for swearing witnesses and for
aR other clerical duties in connection with such cause
in county and district courts.
(b) A fee of One Dollar (Sl.00) per psge or part of a
page, to be paid at the time each order is placed, for
issuitq each certified copy, transcript or any other
P. 519
Honorable Maurice S. Pipkin - Page Two (MW-162)
paper authorized, permitted, or required, to be issued by said
county clerk or clerk of county courts or clerk of district courts.
In a prior opinion this office has determined that the above fee may not be assessed where
the defendant has been granted a conditional discharge under the Controlled Substances
Act, article 4476-l5, V.T.C.S., section 4.12. Attorney General Opinion H-1135 (1978).
Under that Act the accused may be placed on probation without the entry of guilt. The
fees of article 1064, Code of Criminal Procedure, may be assessed only upon a conviction.
Attorney General Opinions H-ll35 (l978); -093 Q944). The deferred proceedings under
the Controlled Substances Act are not appealable since there is no entry of conviction.
George v. State, 557 S.W.2d787 (Tex. Crim. App. 1977).
Section 143A, article 6701dstates:
‘Sec. 143A. (a) When a person is charged with a misdemeanor
offense under this Act, other than a violation of Section 50 or 51,
committed while operating a motor vehicle, the courtt
‘fl) in its discretion may defer proceedings and allow the person
90 days to present evidence that, subsequent to the alleged act, the
person has successfully completed a defensive driver’s eomwe
approved by the Texas Department of. Public Safety or other
driving safety course approved by the court; or : ,
‘(2) shall defer proceedings and allow the person 90 days to
present written evidence that, subsequent to the alleged act, the
person has successfully completed a driving safety course approved
by the court, if:
‘(A) the person presents to the court an oral request or written
motion to take a course;
‘(B) the person has a valid Texas driver’s Iicense or permit; and
‘(Cl the person’s driving record as maintained by the Texas
Department of Public Safety does not indicate successful
completion of a driving safety course under this subdivision within
the two years immediately preceding the date of the alleged
offense.
‘(b) When the person complies with the provisons of Subsection (a)
of this se&ion and the evidence presented is accepted by the court,
the court shall dismiss the charge.
When a charge is dismissed under this section, the charge may
not be part of the person% driving record or used for any purpose,
but the court &all report the fact that a person has successfully
p. 520
Honorable Maurice S. Pipkin - Page Three (Mh’-162)
completed a driving safety course and the date of completion to
the Texas Department of Public Safety for inclusion in the person’s
driving record The court shall note in its report whether the
course was taken under the procedure provided by Subdivision (2) of
Subsection (a) of this section for the purpose of providing
information necessary to determine eligibility to take a subsequent
course under that subdivision.’
Althoqh the provision does not explicitly state that the proceedings are deferred “without
entering a judgment of guilt” as does the provision for conditional discharge under the
Controlled Substances Act, we believe that section 143A implies that no judgment of
conviction is entered. The section states that the %mrgen shall be dismissed and makes
no reference to setting aside a conviction. Therefore we believe the reasoning and
authorities contained in Attorney General Opinion H-R35 (1978) are applicable to the
ouestion herein posed and compel us to conclude that the fees may not be assessed.
SUMMARY
The fees provided for in article 1064, Code of Criminal Procedure,
may not be assessed where the misdemeanor proceedhtgs have been
deferred pursuant to article 67Old,section 143A, V.T.C.S.
J?wlwY&&
MARK WHITE
Attorney General of Texas
JOHN W. PAINTER,JR.
First Assistant Attorney General
TED L. HARTLEY
Rsecutive Assiitant Attorney General
Prepared by David B. Brooks
Assistant Attorney General
APPROVED:
OPINIONCOMMI’lTEE
C. Robert Heath, Chairman
David B. Brooks
Rob Gammage
Susan Garrison
Rick Gilpin
Bruce Youngblood
p. 521