Attorney General Opinion JM-0526

JIM MAlTOX Attorney General Supreme Cowl BulldIn P. 0. Box 12545 Aurtln. TX. ?0711- 2549 51214752591 T4I.x 9101874-1357 T&copler 5121475.0295 714 Jackson. Sull. 700 oallas. TX. 752024505 214l742.9944 4824 AIberIa Ave.. Suite 199 El Paw. TX. 799052793 QlY533.3464 r Tex4s. Suite 700 Houston, TX. 77002.3111 713/223-5855 800 Broadway. Suits 312 Lubbock. TX. 79401.3479 5ow747.5235 4309 N. Tenth, Suite B McAllen. TX. 78501-1555 512m82.4547 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/ AffirmalIve Acilon Employel The Attorney General of Texas July 22, 1986 Hr. S. Kent Gibson Wood County Auditor Courthouea Quitman, Texas 75783 opinion no. a-526 Kc: Suspension of fines and deferrals of final disposition under article 45.54 of the Code of Criminal Procedure Dear Mr. Gibson: 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: (1) Upon conviction of the defendant of a misdemeanor punishable by fine only, other than a misdemeanor described by Section 143A, Uniform Act regulating Traffic oo Eighways, as amended (Article 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 exceed l@O days. (2) Euring said deferral period, the justice may require the defendant to: (a) gost a bond in the amount of the fine assessed to secure paymeat of the fine; (c) submit to professional counseling; and (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.] 1984, oo writ); see also Bradley v. -- State, 564 S.W.2d 727 (Tex. 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. court is oot me court” The court reasoned that since the county 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 TV municipal 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 ‘DIG collected 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) Cr ime Vic tims Co mp c nsa tio r . Ac t, l rtlclo 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 dsef endant 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. Opinion JM-165 (1984). Compare Attorney General 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 Drafting Manual, 7-37. (“‘may” used Opinion 5’11-319 (1985) ; Texas Legislative Council Taxaa Legislative Council, Austin, Texas, 1985, at 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, 1970); - sea also Coda C&l. Proc. 458 S.W.2d 924 (Tex. Grim. App. 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. the munici~ treasury). 45.11 (fees should be deposited in SUMMARY The “jukifa” legislature, in using the term 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 P ,- 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. 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 MARY RELLRR Executive Assistant Attorney General RICK GILPIN Chairman, Opinion Committee Prepared by Tony Guillory Assistant Attorney General p. 2425