THE ATTOKSET GESERAL OF TEXAS

December 27, 1989

Honorable Bob Bullock Opinion No. JM-1124 Comptroller of Public Accounts L.B.J. State Office Building Re: Effect of amendments Austin, Texas 78774 to statutes that allow a driver to defer disposition ofpunishment pending successful completion of a defensive driving course (RQ-1815)

**Dear** Mr. Bullock:

You ask about the effect ofan amendment to section 143A ofarticle 6701d,V.T.C.S., by Senate Bill 1204 of the 71st Legislature. Section 143A permits a court to defer disposition of punishment for driving offenses pending successful completion of adefensive driving course. You **also** direct our attention to Senate Bill 1085 **of** the 71st Legislature because of itsprovision relating to the payment **of** court costs. You advise us that your concern with Senate Bill 1085 is limited solely to the effect it may have on costs ina section 143Aproceeding.

Section 143Aof article 6701d, V.T.C.S., as amended by Senate Bill 1204,Acts 1989, 71st Leg., ch. 1105, 52, at 4579, effective September 1, 1989, provides in pertinent part: (a) When aperson ischarged with a misdemeanor offense under thisAct, other than
aviolation of Section 51, committed while operating a motor vehicle, the defendant shall be advised ofhis right to successfully complete a driving safety course and the court:

(1) in its discretion may defer proceedings and allow the person 90days to present evidence that, subsequent to the alleged act, the person has successfully completed **a**driving safety course approved by the Texas Department of Public Safety

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or other driving safety course approved by the court; or

(2) shall defer proceedings and allow the person 90 days to present a department-approved certificate of course completion as written evidence that, subsequent to the alleged act, the person has successfully completed a driving safety course approved by the Texas Department of Public Safety or another driving safety course approved by the court, if:

(A) on orbefore the answer date
on the cjtation the person enters a plea inperson or in writing of No Contest orGuilty andpresents to the court an oral request or a written request, inperson orbymail post**ma** rk ed on on the citation, to-take acourse;
(B) the the nerson's ~1 a f No Contest or Guiltv at the tize Othe olea is made fl for 90davs;

&)- theperson has avalid Texas driver's license orpermit:

m [@)I the person's driving record as maintained by the Texas Department of Public Safety does not indicate su,ccessful completion **of** a driving safety course under this subdivision within the two years immediately preceding the date of the alleged offense:

1E).[fD)] the person files affidavit with the court stating thi: the person isnot intheprocess of taking acourse under this subdivision andhas not completed a course under this subdivision that is not yet reflected on theperson's driving record: and

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m [f3)]the offense charged is foran offense covered by this section other than speeding 25miles per hour or **more** over the posted speed limit at theplace where the alleged offense occurred.

(b) When the person complies with the provisions of Subsection (a)of this section and a certificate of course completion approved by thedepartment isaccepted by the court, the court shall rem ve the ludoment and dismiss the charge, bug the court may only dismiss one charge for completion of each course.

When a charge is dismissed under this section, the charge may notbe part of the person's driving record or used for any purpose, but the court shall report the fact that a person has successfully completed a driving safety course and thedate of completion to the Texas Department of Public Safety for inclusion intheperson'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 forthepurpose of providing information necessary to determine eligibility to take a subsequent course under. that subdivision. An insurer delivering or issuing for delivery a motor vehicle insurance policy inthis statemay not cancel
or increase the premium charged the insured under the policy merely because ofan offense dismissed under this section orbecause the insured completed a driving safety course under this section. (Emphasis indicates changes and additions made by Senate Bill 1204.) .

Senate Bill 1085,Acts 1989, 71st Leg., ch. 347, §§ 2, 6, 9, 10,at 1316, effective October 1, 1989, amends article 102.051 of the Code ofCriminal Procedure, section 415.082 of the Government Code, section 1C of the Texas Motor Vehicle Safety-Responsibility Act (article 6701h,V.T.C.S.), and section 14 of the Crime Victims Compensation Act (article 8309-1, V.T.C.S.). Each of these statutes provides forpayment of court costs upon conviction of the defendant. The amendments by Senate Bill 1085provide in all of the

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foregoing statutes that aperson isconsidered tohave been convicted inacase ifa sentence is imposed, the defendant receives probation or deferred adjudication, or the court defers final disposition of the case.

Article 102.051 of the Code of Criminal Procedure provides that a defendant convicted of a misdemeanor punishable by a fine,not to exceed $200, shall pay as cost of court $5. In the event the conviction is for a misdemeanor punishable by a fine exceeding $200, the defendant shall pay court costs of $10. Pedestrian and parking offenses are excepted fromthese costs. Municipal and county treasurers may retain 10 percent of the costs. Id. art. 102.054. The comptroller of public accounts deposits the funds received by him ina special fund to be known as the criminal justice planning fund. L art. 102.055.

In light of the amendments resulting from Senate Bill 1204and Senate Bill 1085,you ask the following questions:

1. Whether these amendments inS.B. No. 1085 and S.B.No. 1204 canbe reconciled with Texas Attorney General Opinion No. J'M-917 or whether they also are unconstitutional since they purport topunish someone as if they
were finally convicted without regard to whether they are ultimately convicted of an offense?

2. Are court costs due at the time the judgment is entered as Article 6701d, Sec. 143A, as amended by S.B. No. 1204requires?

3. Whether the administrative cost authorized in Article 6701d can be reconciled with Texas Attorney General Opinion No. JM-917?

Attorney General .OpinionJM-917 (1988)addressed the constitutionality of section lC(e) of article 6701h, V.T.C.S. That statute permitted courts to charge a ten dollar feebefore dismissing a criminal charge for failure tomaintain proof **of** financial responsibility, when the charge was based solely on failure to produce suitable documentary proof of financial responsibility when requested by a police officer and when adequate proof could be produced at a subsequent hearing. Itwas noted that while proof of financial responsibility must be furnished to an officer who requests it, failure to furnish the evidence is

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,

not a crime. The operator was ineffect paying a fee for

dismissal of acharge based on aviolation that is nonexistent, i.e., failure tohave inhis possession proof of financial responsibility. Itwas concluded that a criminal defendant innocent of acharge may notbe required topay a fee inorder tohave acharge dismissed.

Subsection (a)of section 143A, article 6701d, affords the court an option after advising the defendant of his right to complete a driving safety course. Under subsection (a)(l)the court isgiven the discretion to defer proceedings for 90days without the necessity of a plea being entered by the defendant **or** entry **of** judgment. Nor is there any requirement that the defendant make application fordeferral to complete adriving course.

Under subsection (a)(2), the court defers proceedings for 90days upon the defendant's oral orwritten request to take adriving safety course. The request must be submitted atorbefore the time the defendant enters aplea of guilty
orno contest, and the court enters judgment on the plea. Inaddition the defendant must satisfy the requirements of subsections (2)(C), (D), (E),and (F). We assume that the judgment reflects aconviction forthe offense since a plea ofguilty (without the necessity of supporting evidence) is sufficient to support a conviction inamisdemeanor offense. Code Crim. Proc. art. 27.14(a). **A**plea ofguilty andwaiver of jury inamisdemeanor case forwhich themaximum punishment is by fine only **may** be made by mail to the court andwill support aconviction. LB, 27.14(b); see Attorney General Opinion JM-876 (1988).

Unlike the procedure denounced in Attorney General Opinion JW-971, we presume the charged violation in your scenario has the underpinning of an existing offense.

The procedure followed under V.T.C.S. article 6701d, section 143A(a)(2), appears tobe a form ofprobation. The defendant enters aplea ofguilty orno contest and judgment isentered thereon.1 Imposition of judgment is deferred only upon application of the defendant. Removal of judgment

1. In deferred adjudication proceedings the court defers further proceedings following the plea anddoes **not** enter an adjudication of guilt. See Attorney General Opinion JM-377 (1985).

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and dismissal of the charge results upon proof of the defendant's successful completion of the driving course.

InE, m 709S.W.2d 744 (Tex.

;ef'd) App. - San Antonio 1986, pet. the court rejected the defendant's claimed violatio;s ofdue process and equal protection **of** the law resulting froma statutory requirement (article 42.12B, section 6b(c) **of** the code of Criminal Procedure) that he serve 120 days inprison as a condition ofprobation on aconviction for involuntary manslaughter by
reason of intoxication. Probation in&one2 had been granted under article 42.12 **of** the Code of Criminal Procedure. Section 3d(c) of article 42.12 provides that upon successful completion of the terms ofprobation, the court dismisses the charge and discharges the defendant. Following dismissal of the charge the defendant isnot deemed to have been convicted of anoffense.

Attorney General Opinion JM-898 (1988)addressed the matter of a justice of thepeace requiring community service under article 45.54 of the Code of Criminal Procedure.. Article 45.54 provides that upon conviction of a defendant ofamisdemeanor (otherthan aviolation under 67016) punishable by fine only, the justice may suspend the imposition of the fine and defer final disposition of the case for a period not to exceed 180days. InAttorney General Opinion JM-898, itwas concluded that thedefendant may be required toperform reasonable community service as a condition of deferral under section **(2)(d)** of article 45.54, authorizing the justice todefer disposition of the defendant's case on compliance with reasonable conditions other than payment of the fine. At the conclusion of the deferral period, the justice has authority under theprovisions of article 45.54 to dismiss the complaint.

The fact that adefendant under subsection (a)(2) of section 143A of article 6701dmay be required to successfully complete a driving course (pursuant tohis application) andpay court costs upon entry of judgment following his plea does not inour opinion render these statutory requirements unconstitutional because the judgment may ultimately be removed and the cause dismissed.

The **more** difficult question arises under subsection (a)(l)where the court isgiven thediscretion of deferring proceedings for 90 days without the necessity of the .defendantentering aplea, a judgment being entered, or the defendant making application fordeferral inorder to take a driving course. A statutory prerequisite to the assessment of costs in question is the conviction of the defendant.

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Under Senate Bill 1085 the defendant isconsidered to have been convicted inacase if "(1) a sentence is imposed; (2) the defendant receives probation ordeferred adjudication:
or (3) the court defers final disnosition of he cas Acts 1989, 71st Leg., ch. 347, 52, at 1317t (empha%i added).

Under Senate Bill 1085 aperson may be considered convicted where the "court defers final disposition of the case." Id, Ifapplied to subsection (a)(l)of section 143A of article 6701d, the result would be that a judgment reflecting guilt of the defendant would be entered without the defendant having received any semblance of a trial. Instead, under subsection (a).(l)the .court **merely** defers proceedings to allow the defendant time to complete a driving safety course. Noplea isrequired nor isthere any adjudication ofguilt or entry of judgment. We believe that to allow court costs to be assessed upon the basis of a statutory assumption ofguilt of a defendant under these circumstances is to deprive the defendant of property without due process of law. Such aprocedure allows a conviction tobe entered against adefendant without having afforded the defendant his constitutional right to a trial.

Inyour second question you ask ifcourt costs are due at the time judgment is entered ina section 143A, article 6701d, proceeding. Our treatment ofyour first question reflects that imposition of court costs predicated on a conviction without a plea or judgment is unconstitutional under subsection (a)(l). InAttorney General Opinion JM-526 (1986), itwas concluded that court costs are due at the time the judgment of conviction isentered inan article 45.54 proceeding rather than at the end of the deferral period when the complaint may bedismissed. & at 5; see Attorney General Opinion JM-905 (1988). We conclude that under a subsection (a)(2)proceeding court costs are due at the time "the court enters judgment on the person's plea ofNo Contest or Guilty
. . . .'I V.T.C.S. art. 6701d, 5 143A(s)(l)(B) (asamended by Senate Bill 1204,Acts 1989, 71st Leg., ch. 1105, 5 2,at.4579).

Inyour final question you askwhether the administrative costs authorized in article 6701d may be reconciled with Attorney General Opinion JN-917 (1988). Subsection (c) of section 143A of article 6701dprovides "[t]he court may require the person requesting adriving safety course topay a fee set by the court at anamount that does not exceed $10 including any special fees authorized by statute or municipal ordinance to cover the cost of administering this section." Funds collected aredeposited in the municipal

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treasury if the trial is inmunicipal court and in the county treasury iftrial is inthe justice court. L

Attorney General Opinion JM-441 (1986)concluded 'that section 143A, article 6701d, did not allow the assessment of
an administrative feeagainst the defendant or against the providers **of** driving courses without statutory authoriaation, The opinion stated "[i]t iswell-established that a feemay not be charged unless the fee is provided for by law." Id. at 1. The legislature appears tohave responded toAttorney General Opinion JW-441 by amending the statute inSenate Bill 515,Acts 1987, 70th Leg., ch. 1059, B 1, at 3591, effective September 1, 1987,byproviding for the fee set forth in subsection (c) forthe costs of administering this section. The guesti-Jnofthe constitutionality of the administrative fee was neither raised nor addressed in Attorney General Opinion JW-441.

The distinction between a subsection (a)(2) procedure and the one denounced inAttorney General Opinion JW-917 has been discussed inyour first question. We conclude that the statutorily imposed **fee** for administering a section 143A procedure isan appropriate costunder the form **of** probation granted pursuant to subsection (a)(z).2

As heretofore noted noplea is made by the defendant
nor is there any adjudication ofguilt under subsection (a)(1). Whether the amount assessed is denominated as "court cc&z" or "administrative fee," it isagovernmentally imposed cost incident to the filing ofa charged violation of the law. InAttorney General Opinion JM-880 (1988), at 3, itwas stated:

InTexas, costs in misdemeanor criminal
cases are assessed aspart of the punishment. B oarte Carson, 159 S.W.2d 126 (Tex. Crim. App. 1942); uarte IQ&I& 46 S.W. 828 (Tex. Crim. App. 1898). See alsoAttorney General Opinion JM-443 (1986). & United States v Palmer, 809 .F.2d 1504 (11th Cir. 1987;

2. Without knowing what other "special fees authorized by statute ormunicipal ordinance" may be authorized to
cover costs of this section, we areunable topass judgment
on the constitutionality of this provision in subsection (Cl*

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(holding imposition of costs aspunishment to be constitutional).

Since the defendant in a subsection (a)(l) proceeding has never been adjudicated to be guilty of any offense, we conclude that the imposition ofadministrative costs against the defendant in such aprocedure possesses the same constitutional infirmities. found in **Attorney** General Opinion JM-917.

SUMMARY

Senate Bill 1204and Senate Bill 1085 of the 71st Legislature arenotviolative ofany constitutional provision inpermitting costs to be assessed against a defendant in a sp;zctfi =(t)(2), section 143A, article

. . . proceeding that permits the court'to defer'imposition of judgment pending successful completion ofadefensive driving
course. The assessment'of court costs in a ;E;ctio; T(;)sl), section. 143A, article

. defendant is. . ., proceeding where the

adjudged to be guilty without having entered a plea to the charge or the court having made an adjudication of guilt deprives adefendant ofdue process of law andhis constitutional right to a trial. Court costs are due at the time of entry of judgment following the defendant's plea and entry of judgment in a subsection proceeding. A fee not to exceed(a)::!) authorized by subsection (c)of section 143A, article 6701d,V.T.C.S., isnotviolative of any constitutional provision ina subsection (a)(2)proceeding. The imposition of such fee in a subsection (a)(l) proceeding is unconstitutional.

Very truly yo r , 

# J b

AA JIM MATTOX Attorney General of Texas

MARY KELLER First Assistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

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JUDGE ZOLLIE STEAKLJZY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by Tom **G. Davis**  Assistant Attorney General

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