Untitled Texas Attorney General Opinion

The Attorney General of Texas
June 13. 1984
JIM MATTOX
Attorney General
Supreme Court Sulldlng Honorable Joe Warner Bell Opinion lo. JM-165
P. 0. Box 12543
Auatln. TX. 78711.2548
Trinity County Attorney
51214752501 P. 0. Box 878 Re: Whether a defendant whose
Telex 9101874.13B7 Groveton, Texas 75845 adjudication was deferred under
Telecopier 5121475.0266 section 3d of article 42.13 of
the Code of Criminal Procedure
714 Jackson, Sulto 7W may be compelled to pay a fine
Dall#& TX. 75202.4500 after his period of probation
2141742-0844 has expired
Dear Hr. Bell:
4B24 Alberll Ave.. suite 150
El P~aoo.TX. 78805.2783
9lC5633.3484 You have asked:
If a defendant whose edjudlcaiion was deferred
c’- V Texacl. Salts 700 upon a plea of guilty pursuant to article 42.13.
.mslon, TX. 77002.3111
section 3d of the Code of Criminal Procedure,
713/223-5555
fails to pay his fine, once his period of
supervision has expired, may a capias pro fine or
508 Broadway. Sulle 312 writ of execution be issued to enforce payment?
Lubbock. TX. 78401.3479
5OBi747.5238
Assuming that no proceedings to revoke probation or determine guilt
have been initiated. we conclude that a defendant whose adjudication
4309 N. Tenth. Suite B was deferred under article 42.13, section 3d. V.T.C.S., is not subject
t&Allen, TX. 7850%1885 to an execution for collection of a fine imposed as a condition of his
5121882-4547 probation o&e his probationary period has expired.
200 Main Plaza, Suite 400 Section 3d of article 42.13 of the Code of Criminal Procedure
San Antonlo, TX. 782052707 provides in pertinent part as follows:
512l22541Sl
(a) [Wlhen in its opinion the beet Interest of
An Equal Oppoftunlly/
society and the defendant will be served, the
Alflrmative Action Employer court may, after receiving a plea of guilty or a
plea of nolo contendere, hearing the evidence, and
finding that it substantiates the defendant’s
guilt, defer further proceedings without entering
an adjudication of guilt and place the defendant
on probation for a period as the court may
prescribe, not to exceed the maximum period of
imprisonment prescribed for the offense for which
the defendant ie charged. The court may impose a
fine applicable to the offense and require any
reasonable terms end conditions of probation,
p. 726
Ronorable Joe Warner Bel.1 - Page 2 (JM-165)
including any of the conditions enumerated in
Sections 6. 6a, and 6c of this Article . . . .
. . . .
(c) On expiration of a probationary period
imposed under Subsection (a) of this section, if
the court has not proceeded to adjudication of
guilt, the court shall dismiss the proceedings
against the defendant and discharge the
defendant , . . .
Article 43.03 provides that
(a) If a defendant is sentenced to pay a fine
or costs or both and he defaults in payment, the
court may order him imprisoned in jail until
discharged as provided by law . . . .
Article 42.02 defines a sentence as “that part of the judgment . . .
that orders that the punishment be carried into execution in the
manner prescribed by law.” Article 42.01 defines a judgment as the
court’s written declaration of conviction or acquittal. Section 2 of
article 42.13 defines probation to include the suspension of the
imposition of sentence. Likewise, section 3d(a) quoted above
describes probation as being based on the postponement of an
adjudication of guilt. The imposition of a fine under section 3d(a).
therefore, Is as a condition of probation, not as a part of a
sentence. See also 16(8) (providing that payment of a fine may be
made on condition of probation). Section 3d(c) unequivocally states
that a defendant must be discharged and the proceedings dismissed if
the court has not “proceeded to adjudication of guilt” before the
“expiration of a probationary period imposed under Subsection (a) of
this section . . . .‘I Black’s Law Dictionary 39 (5th ed. 1979)
defines adjudication as “[t]he formal giving or pronouncing a judgment
or decree in a cause; also the judgment given.” Compare Burton, Legal
Thesaurus 11 (1980).
Hence, by the explicit terms of section 3d, a defendant whose
probationary period under article 42.13 has expired without institu-
tion of proceedings to revoke probation or determine guilt may not be
subjected to an execution for collection of a fine imposed as a
condition of probation.
SUMMARY
A defendant whose adjudication was postponed
pursuant to section 3d of article 42.13 of the
Code of Criminal Procedure after a plea of guilty
and who fails to pay a fine imposed as a condition
of probation may not be subject to a capias pro
p. 727
, .
Eooorable Joe Wsrner Bell - Pege 3 (J?4-165)
fine or other writ of execution to enforce payment
of such fine once his period of supervision has
expired, if proceedings to revoke probation or
determine guilt have not slready been instituted.
-Jzh
MATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Colin Carl
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 728