Untitled Texas Attorney General Opinion

The Attorney General of Texas
July 22, 1986
JIM MAlTOX
Attorney General
Supreme Cowl BulldIn Hr. S. Kent Gibson opinion no. a-526
P. 0. Box 12545
Aurtln. TX. ?0711- 2549
Wood County Auditor
51214752591 Courthouea Kc: Suspension of fines and deferrals
T4I.x 9101874-1357 Quitman, Texas 75783 of final disposition under article
T&copler 5121475.0295 45.54 of the Code of Criminal Procedure
714 Jackson. Sull. 700 Dear Mr. Gibson:
oallas. TX. 752024505
214l742.9944 You hava inquired about the construction and application of
article 45.54 of the Code of Criminal Procedure. Article 45.54 of the
Code of Criminal Procedure provides:
4824 AIberIa Ave.. Suite 199
El Paw. TX. 799052793
QlY533.3464 (1) Upon conviction of the defendant of a
misdemeanor punishable by fine only, other than a
r misdemeanor described by Section 143A, Uniform Act
Tex4s. Suite 700 regulating Traffic oo Eighways, as amended (Article
Houston, TX. 77002.3111
713/223-5855
6701d, V@:rnon’s Texas Civil Statutes), the justice
may suspt:rrd the imposition of the fine and defer
final di~lpositioo of the case for a period not to
800 Broadway. Suits 312 exceed l@O days.
Lubbock. TX. 79401.3479
5ow747.5235
(2) Euring said deferral period, the justice
may require the defendant to:
4309 N. Tenth, Suite B
McAllen. TX. 78501-1555 (a) gost a bond in the amount of the fine
512m82.4547
assessed to secure paymeat of the fine;
200 MaIn Plea, Suite 4w (b) pay restitution to the victim of the
San Antonio. TX. 79205.2797 offense in an mount not to exceed the fine
51212254191 assessed;
An Equal Opporlunlty/
(c) submit to professional counseling; and
AffirmalIve Acilon Employel
(d) comply with aoy other reasonable condition,
other than payment of all or part of the fine
assessed.
(3) At the conclusion of the deferral period,
if the Defendant presents satisfactory evidence
that he k,a,s complied vith the requirements imposed,
the justke may dismiss the complaint. Otherwise,
p. 2416
.
I
Mr. S. Kent Gibson - Page 2 (Jn-US)
the justice may reduce the fine assessed or may
then impose the f:inc assessed. If the complaint is
dismissed, a special expense not to exceed $50 may
be imposed.
(4) Records relating to a complaint dismissed
as provided by this article may oot be expunged
under Article 55.31 of this code. (Emphasis added).
The legislature enacted this statute to enable a “justice” to make a
form of probation available to defendants convicted of offenses with a
maximum punishment of a fine not to exceed $200, i.e. Class C mis-
demeanors. See Acts 1981, 67th Leg., ch. 318, II, crt94 eff. Sept.
1, 1981. Penal Code 612.23. This office has previously characterized
article 45.54 as a form of “probation” although the statute does not
use the term. See Attorwy General Opinion JM-307 (1985); sea also
Baker 6 Bubany, xobation :Eor Class C Misdemeanors: To Fine or Not
to Fine is Now the Question, ” 22 So. Tcx. L.J. 249 (1981). Prior to
that time, there was oo legislative authorization to allov probation
lo non-traffic misdemeanor offenses puoishable by fine only. See Code
Grim. Proc. art. 42.13; see also Attorney General Opinion-%1128
(1978).
It is well-settled :Lav in this state that the relationship
between the probationer and the state is contractual in nature. See
Vanderburg v. State, 681 !i.W.2d 713, 719 (Tex. App. - Houston (14th
Dist.] see also Bradley v. State, 564 S.W.2d 727 (Tex.
1984, oo writ); --
Grim. App. 1978) (en baoc) . Therefore, it is reasonable to conclude
that the form of “probation” authorized by article 45.54 may only be
applicable when the defendant has agreed to the conditions of the
deferral period.
In regard to section 1 of article 45.54 of the Code of Criminal
Procedure you have asked t’w following questions:
1. Can a county judge or a municipal judge
take action under this article?
2. Can a county court or justice court suspend
fines and defer final disposition of traffic
offeoses (such ~1 speeding) described in article
6701d. V.T.C.S., under article 45.54 of the Code
of Criminal Procedure?
3. Can a county or justice court suspend fines
and defer final disposition of offenses described
in article 66871’. V.T.C.S., under article 45.54 of
the Code of Criad,nal Procedure?
p. 2417
Hr. S. Kent Gibson - Psge 3 (Jx-526)
4. If of feoscre under 6687b or 6601d are
allowed fine suspension sod deferral of final
disposition uoder article 45.54, is the $12.50
Compensation to Vietime of Crime Fund cost to be
collected st the time the complaint is dismissed
aod the special expeose fee of $50.00 imposed?
Also, is the $:I.00 arrest fee alloved under
article 53.01 to be collectsd?
In answer to the first question , we conclude that section 1 of article
45.54 of the Code of Criminal Procedure applies to a municipal judge
as well as a justice of the peace. This provisioo was enacted as part
of Senate Bill No. 914 by tire Sixty-seventh Legislature. Acts 1981,
67th Leg., ch. 318, at 891,. Ths Bill Analysis prepared for Senate
Bill No. 914 stated that :the Code of Criminal Procedure did not
provide for deferred prosecution of Class C misdemeanors lo justice
and corporation courts, ani. the proposed legislation was intended to
give this power to these courts. Senate Comm. on Jurisprudence, Bill
Analysis for S.B. No. 914, 67th Leg. (1981). Moreover, the title to
Senate Bill No. 914 states :Ln part:
An Act . . . urthorising the court to impose
conditions and t,a’ dismiss the complaint. . . .
(Emphasis added).
Act6 1981, 67th Leg., ch. :3ia. at 894. The bill aoalysis and the
title to the bill indicat:e the legislature’s understanding that
“justice” refers to a justice of the peace and a municipal judge.
The question of whether a county judge may take action under
article 45.54 should be discussed in light of the Texas Court of
Criminal Appeal’s en bane decision in Kutner v. Russell, 658 S.W.2d
585 (Tex. Grim. App. 1983). IO Kutner, supra, the court held that
when a person stands charged with a misdemeoor traffic offense in
which he may invoke section 143A of article 6701d of V.T.C.S., and he
has a choice between going to trial or taking driving courses. he
caonot invoke the statute (1’11. appeal in county court to take defensive
driving courses after chsx)siog to go to trial and having been
convicted. Id. at 586. The court reasoned that since the county
court is oot me court” that the defendant was charged lo, the county
court had no statutory poww to grant defensive driving under section
143A(a)(2) of article 67Cld of V.T.C.S. The court ignored Judge
Onion’s argument that article V, section 16 of the Texas Constitution
and article 44.17 of the Code of Crimioal Procedure requires that the
appellate jurisdiction of the county court requires that these cases
should be “the same as if the prosecution has been originally
commenced in that court.” -Id. at 589-91; see also Code Grim. Proc.
art. 44.17.
p. 2418
Mr. S. Kent Gibson - Page 4 (JX-526)
Likevise, ve believe that the Texas Court of Criminal Appeals
vi11 take a similar positioo in the construction of srticla 45.54.
Kutner, supports the conclrwion that the county court has no statutory
pover to invoke article 45.54 vheo a defendant has been originally
charged sod coovicted lo TVmunicipal or justics court because, like
aectioo 143A of article 6701d, the legislature did oot expressly
provide for this purpose or coostructioo. Accordingly. ve conclude
that only a municipal judge! and a justice of the peats may take actioo
under article 45.54 of the Code of Criminal Procedurs.
Your secood question addresses the application of article 45.54
of the Code of Crtiloal Procedure to traffic of feoses (such as
speeding) described in artzlcle 6701d. V.T.C.S. Article 45.54 does not
apply to these offenses. .Article 45.54 expressly excludes from its
provisions misdemeanor traffic offenses described by section 143A of
article 6701d. V.T.C.S., Uniform Act Replating Traffic on Bighvays.
-See Code Grim. Proc. art. 45.54, Il. Section 143A of article 6701d,
V.T.C.S.. applies to all miisdemeaoor traffic offenses defined under
article 6701d. except the ,offense of reckless driving under section
51, vhich is punishable 8.8 a Class B misdemeanor vithio the juris-
diction of the county court. V.T.C.S. art. 6701d. S143A; Code Grim.
Proc. art. 4.07 (jurisdic,tion of county court over Class B mia-
demeanors). Article 45.5Gi does not apply to Class B misdemeanors.
The offense of speeding la defined lo article 6701d. V.T.C.S. See ?
V.T.C.S. art. 6701d. 5166. Accordingly, a justice, or municipal co=
may not suspend fines and defer final dispoaitioo of speeding offenses
described in article 6701d. V.T.C.S.. uoder article 45.54 of the Code
of Criminal Procedure. Ci. Kutner ;. Russell, 658 S.W.2d 585 (Tex.
Grim. App. 1983); Attorney;general Opinion IN-428 (1982).
Your third question ,ralates to the application of article 45.54
to offenses defined under article 6687b. V.T.C.S. These off eases
relate to driver’s licencle requirements within the state of Texas.
Since article 45.54 appli~w to all Class C misdemeanors except those
specifically excluded. ve conclude that a conviction of any Class C
misdemeanor offense defined by article 6687b, V.T.C.S., may be
deferred under article 45.54. See V.T.C.S. art. 6687b. 513 (guilty of
first offense of failure to display driver’s liceose is a Class C mis-
demeanor).
Because we have concluded that article 45.54 applies to Class C
misdemeanor offenses under article 6687b. V.T.C.S., ve vi11 now
address your fourth questloo. The first part of this question asks
vhether a $12.50 fee may ‘DIGcollected for the Compensation to Victims
of Crime Fund at the time the complaint is dismissed and the special
expense fee is collected. In 1985, the Sixty-ninth Legislature amended
section 14(b) of article 113;09-1, V.T.C.S., to change the amount of the
fee collected in Class C misdemeanor cases from $12.50 to $3.00. See
Acts 1985, 69th Leg., ch. 589, Il. at 4507, eff. Sept. 1, 1985. The I
p. 2419
Mr. S. Kent Cibron - Page !i (JX-526)
t,lrtlclo
Cr imeVic timsCo mp c nsa tioArc . 8309-l et seq., creates the
Compensation to Victims of Crime Fund to be used by the Industrial
Accident Board for the payment of compensation to claimants under the
act and other expanses in administering the a c t.See V.T.C.S. art.
8309-l. J14(a). Section 10(b) of the act provides byrt:
(b) A person shall pay . . . $3 as a court
cost, on conviction of a misdemeanor punishable by
a fine of not more than $200, other than a mis-
demeanor that regulates pedestrians and the
parking of motor vehicles. The court shall assess
and make a reasonable effort to collect the cost
due under this section vhether or not any other
court cost is aiwessed or collected. . . . If a
parson is grant,sd deferred adjudication under
Article . . . 41;. 54, Code of Criminal Procedure,
1965, as amended. at the time the court grants
deferred adjudic,a.tion. the person shall pay as a
court cost the mount that the person vould have
otherwise been iequired to pay under this sub-
section had the adjudication not been deferred and
had the person-been finally convicted of the
offense. (Emphasis added).
V.T.C.S. art. 8309-1, 114(b). A person must be convicted before
article 45.54 of the Code of Criminal Procedure is applicable in a
particular case and the :.rmguage used by the legislature in section
14(b) requires us to conN::Lude that a defendant is to pay the $3.00
court cost at the time WE conviction rather than at the time the
complaint is dismissed under section 3 of article 45.54. Of course,
when the complaint is dismissed, a special expense fee not to exceed
$50 may be imposed. -See Code Grim. Proc. art. 45.54, 9(3).
Pour final question in regard to the collection of fees is
whether the $3.00 arrest fee allowed under article 53.01 of the Code
of Criminal Procedure is to be collected at the time the complaint is
dismissed. We are of c:he opinion that the $3.00 fee should be
collected upon conviction rather than at the time the complaint is
dismissed.
Article 53.01 of the Code of Criminal Procedure allows a $3.00
fee to be taxed by a pea-e officer against the defendant “on convic-
tion” for his services for executing each warrant of arrest or capias,
or making an arrest without a varrant. See Code Grim. Proc. art.
53.01, 91; see also Attorney General Opinion MW-561 (1982). Since
article 53.01 specificall:? provides that the $3.00 fee should be taxed
“on conviction” of the dEfendant, ve believe that the fee should be
collected at the time the defendant is convicted of the offense rather
p. 2420
Xr. S. Kent Gibson - Page 6 (311426)
than at the time the complaint iJ dismissed under section 3 of article
45.54 of the Coda of Crimloal Procedure.
You also ask the fo:.lowlng three questions in regard to the
deferral period under sact,lon 2 of article 45.54 of the Coda of
Criminal Procedure:
1. Can the pxovisiona of the bond mentioned in
section 2(a) of article 45.34 include the condi-
tlons of the deferral period?
2. Can the ccurt require a cash bond?
3. What is the liability of the county, if
someone is workinS as a condition of the deferral
and is injured vhi.18 working?
As quoted above, secl:ion 2(a) of article 45.54 of the Code of
Criminal Procedure authorizes a judicial officer to require the
defendant to poet bond in the amount of the fine assessed to secure
payment of the fine. Sea Coda Crba. Proc. art. 45.54, 52(a). The
judicial officer may only require the defendant to post this bond
during the “deferred period.” Id. In response to your first
question, the court may nclt requircha defendant to comply with any
other condition of the defc!rral, as a condition of the bond. The bond
is only one of the three conditions under section 2. -Id.
We also believe that tlhe legislature did not intend In section 2
of article 45.54 to autho:::lze the court to require a cash bond. As
indicated above, section :! authorizes a judicial officer to require
the defendant to post bond “in the amount of the fine assessed . . .
to secure payment of the Cine.” See Code Grim. Proc. art. 45.54,
12(a). (Emphasis added). It is z opinion that the legislature
would have specif led “cash” bond if it intended that the defendant
could post cash only to secure payment of the fine. The courts have
construed provisions authorizing the posting of bonds to allow surety
bonds as well as cash boneis. See Ex Parte Rodriguez, 583 S.W.2d 792
(Tax. Grim. App. 1979); tea also Attorney General Opinion m-363
(1985). Moreover, section 2(d) which specifically prohibits the
defendant from paying all or part of the fine assessed, lends support
to the construction that the legislature did not intend the posting or
paying of money to insure that the fine is paid or that other
conditions of deferral are met.
Article 45.54 also a,uthorizes a judicial officer to require a
convicted defendant to obtain employment as a condition of the
deferral so long as tha! condition of employment is reasonable.
See Code Grim. Proc. art. 45.54, 12(d). Thus, if the defendant is
Eured on the job while vorking under these circumstances, the
p. 2421
Mr. S. Kant Gibson - Page 7 (JU-526)
employer, not the county, may be liable for the injury.
Zurich Gsnaral Accident 41 Liabilit Insurance Co. v.?+AFi%E
Laundry Cf.. 63 S.W.Zd 263 i”rax. Civ.‘App. - Fort Worth 1933, no writ)
(smployaa a liability la founded on some legal duty). But, if the
county la the employer, the county may be liable for personal injuries
of the defendant under the same conditions it would be liable to any
other employee. Compare V.T.C.S. art. 6252-19, 93 (repealed 1985),
with Coda Grim. Proc. art. 42.12, fad(f) (condition imposed on govam-
mental units to limit liability for felony probationers’ employment
injuries).
Finally, you ask the following three questions:
1. If the dsefendant serves the deferral
period, the cm)laint is dismissed. a special
expense fee is iuposed, and the defendant fails to
pay the special tcxpensc fee, how may the court
collect the special expense fee?
2. Upon convLt:tion after a trial in justice
court, does the court have discretion to place
someone on defel,ral under article 45.54 of the
Coda of Criminal Procedure? Can deferral be
appealed by the defendant to county court? If so.
under what circumstances?
3. If a municipal court case is appealed to
county court, &a defendant is found guilty and
placed on deferra:l, and a special expanse fee is
assessed, who is eatitlad to the special expense
fee, the county or the city?
As to the first question, the Jp8CiJl expense fee is not a
condition of deferral but :Ls an added expanse vhich may be imposed by
the court after the complaint is dismissed. Compare Attorney General
Opinion JM-165 (1984). If ,the defendant fails to pay this additional
costs the court may issue A writ of execution to enforce payment. -Sea
Code Grim. Proc. art. 43.07.
In regard to the f1rc.t part of your second question, we believe
that based on our previous discussion that the court must have the
consent of the defendant before 3 probation may be imposed, the
court has the discretion to place someone on deferral under article
45.54 of the Code of Crim:tnal Procedure. Section 1 of article 45.54
specifically provides that the justice vx . . . defer the final dis-
position of the case. . ,, .” Code Grim. Proc. art. 45.54, 51
(Emphasis added). The te:na “may” generally creates a discretionary
and not a mandatory function. See Matter of Estate of Minnick. 653
S.W.2d 503 (Tex. Civ. App. - Amarillo 1983, no writ); see also
p. 2422
. .
Ur. S. Kent Gibson - Page 8 (Jkf-526)
Attorney General Opinion 5’11-319 (1985) ; Texas Legislative Council
Drafting Manual, Taxaa Legislative Council, Austin, Texas, 1985, at
7-37. (“‘may” used to denote a privilege or discretionary povar) . Of
course, this discretion may not be exercised if the defendant elects
to pay the fine imposed.
The second part of the second queatioa relates to the right of a
defendant to appeal a defsrral condition imposed by a justice to a
county court. It la clear that a defendant has the right of appeal
for a reviw of his trial a,nd conviction at the time he is placed on
probation. See Pitzpatric!r v. State, 458 S.W.2d 924 (Tex. Grim. App.
1970); sea -also Coda C&l. Proc. art. 42.12, 98(b); art. 44.17.
Rowever, the legislature d:td not address, in article 45.54, the matter
of appeal from, or right I:O review, a finding by the trial court of
noncompliance, a refusal to dismiss the complaint, and a decision to
impose the deferred fine. We are of the opinion that the legislature
did not intend to provide the right to appeal. In every circumstance
where there was a right to appeal, there has been an explicit right
provided by statute. Sea C,ode Grim. Proc. art. 42.12, 18(b). On the
other hand, where the lcgis:latura did not intend a right to appeal in
a psrticular circumstance:, there has not been a statutory right
provided. See Jacolos v. Hoss, 682 S.W.2d 364 (Tex. App. - Dallas
1984, no wrm; sea also EzIntyra v. State, 581 S.W.2d 413, 417 (Tex.
Grim. App. 1979). Accordingly, YJ conclude that a defendant does not
have the right to appeal a deferral condition imposed pursuant to
article 45.54 of the Code XC Criminal Procedure.
Finally, you ask if a municipal case is appealed to county court,
and the defendant is found guilty and placed on deferral, which
governmental entity, the city or the county, is entitled to the
special expense fee assessed by the county court. The fee may only be
imposed if the complaint 1s dismissed. Code Grim. Proc. art. 45.54,
13. Since we have concluded above that a county judge cannot invoke
article 45.54, &, dismiss the complaint, the city is entitled to
the fee. Cf. Code Grim. Proc. art. 45.11 (fees should be deposited in
the munici~ treasury).
SUMMARY
The legislature, in using the term
“jukifa” in section 1 of article 45.54 of the
Code of Criminc~l Procedure intended to include
justices of the peace and municipal judges.
2. Article 45.54 of the Code of Criminal
Procedure does n,ot apply to traffic offenses (such
as speeding) defined under article 6701d. V.T.C.S.
p. 2423
Xr. S. Kant Gibson - Page 9 W-526)
3. Article 4!,.54 of the Coda of Criminal
procedure does apply to conviction of a Clasa C
misdemeanor defineid under article 6687b. V.T.C.S.
4. A $3.00 coqeneation to victim fee may be
collected from a ilafandant convicted of an offense
defined under article 6687b. V.T.C.S. The fee may
be collected at the time of conviction.
5. The $3.00 wrest fee which is alloved to be
collected under article 53.01 of the Coda of
Criminal Procedure! is to be collected at the time
of conviction rather than at the time the com-
plaint is dismiswd under article 45.54 of the
Coda of Criminal lkocedura.
6. A court may not require a defendant, as a
condition of a bond under section 2 of article
45.54, to comply vlth any other condition of the
deferral. The bond is only one of the three
conditions under rwction 2.
P 7. A court wunot require a cash bond under
section 2 of artic:le 45.54 of the Coda of Criminal
Procedure.
8. If a convicted defendant Is required to
obtain employment ,vith the county, as a condition
of his deferral ualer article 45.54 of the Code of
Criminal Procedure. the county may be held liable
for personal injuries if the defendant is injured
on the job.
9. Since the wpecial expense fee authorized by
section 3 of artic!le 45.54 of the Code of Criminal
Procedure is an added expense which may be imposed
by the court after the complaint is dismissed, the
court may issue B vrit of execution under article
43.07 of the Code of Criminal Procedure to enforce
payment of the fee.
10. A court has discretion to place a
defendant on defwral under article 45.54 of the
Code of Criminal Procedure.
11. The legislature did not provide a
defendant the statutory right to appeal a deferral
,- condition imposei; by a trial court under article
p. 2424
Ilr. S. Kent Gibson - Page 10 UH-526)
45.54 of the Coda of Criminal Procedura. The
defendant does not have this right.
12. The judicial official dismissing a
complaint under section 3 of article 45.34 of the
Coda of Criminal procedure is the only official
who Eay ,.,JpOSJ a J?ecial axpansa fJJ.
MATTOX
Attorney General of Texas
JACK HIGRTOWRR
First Assistant Attorney General
MARYRELLRR
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tony Guillory
Assistant Attorney General
p. 2425