Untitled Texas Attorney General Opinion ( 2009 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
November 20,2009
Mr. Sidney "Buck" LaQuey Opinion No. GA-0745
Grimes County Auditor
Post Office Box 510 Re: Whether a justice of the peace may defer the
Anderson, Texas 77830 adjudication of a charge of violating the Parks and
Wildlife Code and impose a special expense without
assessing a fme and, if so, whether any portion of the
special expense must be remitted to the Parks and
Wildlife Department (RQ-0802-GA)
Dear Mr. LaQuey:
You write to suggest a possible conflict between article 45.051 of the Code of Criminal
Procedure and section 12.107 of the Parks and Wildlife Code. 1 You indicate concern about
complying with section 12.107 and ask whether a justice of the peace may defer the adjudication of
a charge of violating the Parks and Wildlife Code and may impose a special expense without
assessing a fine and, if so, whether any portion of the special expense must be remitted to the Parks
and Wildlife Department (the "Department,,).2
Article 45.051 authorizes a justice of the peace to defer proceedings without entering an
adjudication of guilt and to place a defendant on probation under specified circumstances. See TEx.
CODE CRIM. PROC. ANN. art. 45.051(a) (Vernon Supp. 2009); see also id art. 45.002 (Vernon 2006)
(providing that "[c]riminal proceedings in the justice and municipal courts shall be conducted in
accordance" with chapter 45). A justice of the peace, "[i]n issuing the order of deferral, ... may
impose a special expense fee on the defendant." TEx. CODE CRIM. PROC. ANN. art. 45.051(a)
(Vernon Supp. 2009). Section 12.107 requires a "justice of the peace, clerk of any court, or any
other officer of the state who receives a fine imposed by a court for a violation of this [Parks &
Wildlife] code ... [to] send the fine to the [D]epartment" in certain specified percentages. TEx.
PARKS & WILD. CODE ANN. § 12.107 (Vernon 2002).
You suggest that section 12.1 07's requirement to send a fine to the Department precludes a
justice of the peace from deferring proceedings under article 45.051 and imposing a special expense
fully retained by the county. See Request Letter at 1-2 (citing Tex. Att'y Gen. Op. No. JM-526
(1986». We address your query in two parts. First, we consider a justice of the peace's authority
ISee Request Letter at 1-2 (May 26,2009) (available at http://www.texasattomeygeneral.gov).
2See id; Supplemental Request Letter at 1 (June 1,2009) (available at http://www.texasattomeygeneral.gov).
Mr. Sidney "Buck" LaQuey - Page 2 (GA-0745)
to defer proceedings under article 45.051 when the charge is one of violating the Parks and Wildlife
Code. Second, we consider issues with respect to the special expense.
As we examine article 45.051 and section 12.107, we are mindful that in construing statutes
courts seek first to determine the Legislature's intent. See Lelandv. Brandel, 257 S.W.3d 204,206
(Tex. 2008). Courts look to the statute's plain language under the assumption that the Legislature
meant what it said and that its words are the surest guide to its intent. See Fitzgerald v. Advanced
Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999). Courts also seek to harmonize statutes
when possible. See La Sara Grain Co. v. First Nat 'I Bank ofMercedes, 673 S.W.2d 558, 565 (Tex.
1984).
Section 12.107 does not affirmatively require that a fine be imposed for a violation of the
Parks and Wildlife Code. See TEx. PARKS & WILD. CODE ANN. § 12~107 (Vernon 2002). Nordoes
it expressly limit the jurisdiction of justice courts or prohibit a justice of the peace from exercising
the authority in article 45.051 to defer proceedings. See id Nothing in the plain language of section
12.107 indicates that the Legislature intended to preclude a justice of the peace from deferring
proceedings under article 45.051. Moreover, article 45.051 applies to all misdemeanor cases
punishable by fine only and does not except misdemeanor cases involving violations of the Parks
and Wildlife Code. See TEX. CODE CRlM. PROC. ANN. art. 45.05 i (a) (Vernon SUpp. 2009). The two
provisions do not, as you suggest, conflict. Instead, they may be harmonized such that section
12.107 is understood to require that the specified percentage be sent to the Department in only those
instances where a fine is actually imposed by a court. We therefore conclude that section 12.107
does not preclude a justice of the peace from exercising the authority in article 45.051 to defer
proceedings of a charge of violating the Parks and Wildlife Code.
We next consider your questions involving the special expense. You suggest that subarticle
45.051(c)'s language "not to exceed the amount of the fine assessed" means that a "fine should be
imposed in addition to the special expense." Request Letter at 2. The Eighty-first Legislature
amended article 45.051 and removed the language giving rise to your concern. See Act of May 29,
2009, 81st Leg., R.S., ch. 1121, § 2, 2009 Tex. Gen. Laws 3091, 3092 (codified as an amendment
of TEx. CODE CRlM. PROC. ANN. art. 45.051). Article 45.051 now provides that "[i]n issuing the
order of deferral, the judge may impose a special expense fee on the defendant in an amount not to
exceed the amount of the fine that could be imposed on the defendant as punishment for the
offense." TEx. CODE CRlM. PROC. ANN. art. 45.051(a) (Vernon Supp. 2009). The amended article
45.051 also provides that the "judge may elect not to impose the special expense fee for good cause
shown by the defendant." Id By contrast, the fine serves as the conviction and is imposed only
when the defendant cannot show successful compliance with the article 45.051 conditions. Id. art.
45.051(d). We see nothing in the language of the amended article 45.051 that requires a fine to be
imposed in addition to the special expense fee. 3
3As a practical matter, if the judge orders a special expense fee as part of a probation but then ultimately imposes
a fme because the defendant is not successful in complying with the imposed conditions, a defendant would not pay both
amounts because "the judge shall require that the amount ofthe special expense fee be credited toward the payment of
the amount of the fme." TEX. CODE CRIM. PROC. ANN. art. 45.051(a) (Vernon Supp. 2009).
Mr. Sidney "Buck" LaQuey - Page 3 (GA-0745)
With respect to whether any portion of a special expense fee must be sent to the Department,
section 12.017 expressly requires only that a percentage of a "fine imposed by a court for a violation"
of the Parks and Wildlife Code be sent to the Department. TEx. PARKS & WILD. CODE ANN.
§ 12.1 07(a) (Vernon 2002). It does not apply to all fees and costs that may be collected in a criminal
proceeding. See id. Under article 45.051, a "special expense fee" is not a "fme." Compare TEx.
CODE CRIM. PROC. ANN. art. 45.051(a), with id. art. 45.051(d) (Vernon Supp. 2009); see also
Guarantee Mut. Life Ins. Co. v. Harrison, 358 S. W.2d 404,406-07 (Tex. Civ. App.-Austin 1962,
writ ref d n.r.e.) (recognizing that when the Legislature uses different words, it is presumed to have
intended different meanings). Moreover, unlike a fine, a special expense fee imposed under article
45.051 does not constitute a conviction for a violation of the Parks and Wildlife Code. See TEx..
PARKS & WILD. CODE ANN. § 12.107(a) (Vernon 2002) (applying to a fine "imposed by a court for
a violation of [the Parks and Wildlife] [C]ode"), TEX. CODE CRIM. PROC. ANN. art. 45.051(d)
(Vernon Supp. 2009) (providing that an imposed fine constitutes a conviction). Accordingly, we
conclude that the Legislature has not required that any portion of a special expense fee imposed
under article 45.051(a) must be sent to the Department.
Mr. Sidney "Buck" LaQuey - Page 4 (GA-0745)
SUMMARY
A justice of the peace may defer the adjudication of a charge
of violating the Parks and Wildlife Code and impose a special
expense fee without assessing a fine. A special expense fee imposed
under article 45.051, Code of Criminal Procedure, is not a fine under
section 12.107, Parks and Wildlife Code, that must be sent to the
Parks and Wildlife Department.
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee