DAN MORALES

ATTORNEY GENERAL 

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of tip RIttornep @eheral State of fLexas December 22,1997
The Honorable Rodney Ellis Chair, Jurisprudence Committee Texas State Senate P.O. Box 12068 Austin, Texas 7871l-2068 Opinion No. DM-464 Re: Constitutionality of Senate Bill 1417, Acts 1997, 75th Leg., R.S., ch. 1327, and related questions (RQ-987)
Dear Senator Ellis: You have requested our opinion on anumber of questions relating to the legislature’s recent enactment of a “time payment fee.” SeeAct ofMay 27,1997,75th Leg., R.S., ch. 1327,1997 Tex. Sess. Law Serv. 5024,5024. That provision, to be codified as section St .921, Govetnment Code, provides, in relevant part:

(a) Jn addition to other fees authorized or required by law, the clerk of each district court, statutory county court, county court at law,justice court, and municipal court shall~collect a fee of $25 from aperson who: (1) has been convicted of a felony or misdemeanor; (2) has been ordered to pay a fine, wurt costs, or restitution by the court; and (3) seeks to pay the fine, court costs, or restitution over a period of time rat&r than immediately. (b) Court fees under this section shall be collected in the same manner as other fees, tines, or costs in the case. The officer wlleoting the fees shall keep separate records of the money collected under this section and shall deposit the money in the county or municipal treasmy, as appropriate. Under statutes in effect prior tothe enactment of section 51.921,when adefendant is ordered to pay a fine and costs as part of a sentence in a criminal adjudication, the court may direct the payment of the fine and costs in one of three ways:

(1) to pay the entire fine and costs when sentence is pronounced, or (2) to pay the entire fine and costs at some later date; orThe Honorable Rodney Ellis - Page 2 (DM-464)

(3) topay a specified portion ofthe fine and costs at designated intervals. Code Grim. hoc. art. 42.15.’ In addition, the court may order a defendant to make full or partial restitution to his victim, and may require that the defendant do so “immediately” or ‘within a specified period or in specified installments.” Id. art. 42.037(g). Newly-enacted section 51.921 addresses the situation in which a defendant seeks to pay a fine, court costs, or restitution “over a period of time.” Section 51.921 thus imposes a charge for a service provided to a convicted defendant-paying “over a period of time”-that was free prior to the effective date of the statute, September 1,1997. You first ask whether, in light of Attorney General Opinion DM-123 (1992), the time payment fee established by section 51.921 is violative ofthe due process or equal protection clauses of the Texas Constitution. That opinion concluded that section 51.702(h), Government Code, which authorized a wmmissioners court to adopt aresolution requiring thepayment ofan additional $10.00 in wurt costs for each miminal conviction in a statutory county court, was unwnstitutional on both dueprocess and equal protection grounds, because some wunties might not adopt the additional fee, and more importantly, because many counties have no statutory county court. Thus, the statute “allow[ed] different costs to be assessed in different wunties for the same penal offense.” Attorney General Opinion DM-123 (1992) at 3 (quoting from Attorney General Opinion JM-880 (1988)). For the reasons explained below, we construe the feecreated by section 51.921to apply uniformly throughout the state at the criminal trial level. Consequently, it is not violative of either due process or equal protection for the reasons cited in Attorney General Opiion DM-123.2 Section 51.921 states that it applies to each “statutory wunty wurt” and to each “wunty court at law.” Since a statutory county wurt is identical to a wunty wurt at law, you suggest that the phrase “statutory county court” should be read as “wnstitutional county court.” We agree. If section 51.921 isnot applicable to wnstitutional wunty wurts, it is subject to the objection raised in Attorney General Opinion DM-123, supru, in that it assesses a charge upon a category of defendants-those who “seek to pay” their fine, court costs, or restitution “over aperiod of time”-in certain wunties but not in others. Although it is not the proper fbnction ofthejudiciary, or this office, to correct legislative errors, mistakes, or omissions, Seuy v.Hull,677 S.W.2d 19 (Tex. 1984), it is the case that courts have sometimes substituted one word or phrase for another, in order to csrry out the intent ofthe legislature, Duvis v.State,88Tex. Grim. 183,225 S.W. 532 (1920); Mnuzy v.Legislative RedistictingBd., 471 S.W.2d 570 (Tex. 1971). Nothing in the legislative history of Senate Bill 1417 indicates an intent to exclude wnstitutional county courts from the ambit of section 51.921, and the inclusion of the identical terms “statutory county court” and “county court at law” demonstrates, in

'Article 45.48 uses identical language forjustice and municipal courts. Vou do not ask, andwe do notaddress, whether the fee otherwise co- with state or federal due process and equal protection guarantees.

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our view, that the legislahue inadvertently used the phrase “statutory county court” when it meant to say “wnstitutional county wurt.” Furthermore, the legislature was presumably aware ofthe existence of Attorney General Opiion DM-123 and the authority on which itrelied when it enacted Senate Bill 1417. Since we are required to construe an ambiguous statute in such a way as to render it wnstitutional, if at all possible, State v. Shoppers World,380 S.W.2d 107 (Tex. 1964), we conclude that section 51.921includes wnstitutional wunty courts among that group of wurts to which the time payment fee is applicable. To hold otherwise would lead to absurdity-a result surely not intended by the legislature. Your next question is whether the time payment fee is applicable only to those offenses wnnnitted after the effective date of Senate Bill 1417, i.e., September 1, 1997. You suggest that, if the statute were applied to aperson charged with an offense that occurred before September 1,1997, but whose conviction occurs after September 1, 1997, it might constitute a “retroactive law,” in contravention of article I, section 16of the Texas Constitution.’ A law is impermissibly retroactive if it “substantially alters the consequences attached to a crime already completed, and therefore changes ‘the quantum of punishment.“’ Weaver v. Gruhmn,450 U.S. 24 (1981), citing Dobbert v. Floriak, 432 U.S.282,293-94 (1977). In Turbeville v. Gowdy, 272 S.W. 559 (Tex. Civ. App.--Fort Worth 1925,no writ), the court declared: “A statute is retroactive which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes anew duty, or adopts anew disability inrespect to trmsactions or wnsiderations already passed.” Turbeville, 272 S.W. at 561. As we noted in our answer to your fnst question, article 42.15 of the Code of Criminal Procedure has long given the court the option ofpermitting adefendant to pay his fine “at designated intervals.*’ Section 51.921 of the Government Code provides that, in such circumstances, the defendant must pay an additional fee of $25.00. As we noted previously, what was once free now costs $25.00. Although the time payment fee isnot a “punislnnent,” it does create a “new obligation” and imposes a “new duty” on persons who wish to pay their fines, court costs, or restitution “over a period of time.” As a result, it cannot, in our view, be imposed for offenses committed before the effective date of the statute. You then question whether the time payment fee applies to an individual who has been granted deferred adjudication. Section 51.921 is applicable to any person who, interaliu, “hasbeen wnvicted of a felony ormisdemeanor.” Deferred adjudication under section 5ofarticle 42.12, Code of Criminal Procedure, means that the court, after receiving aplea of guilty or nolo contendere, has found that it is in the “best interest of society and the defendant” to ‘defer anther proceedings without entering an adjudication ofguilt, and place the defendant on wmmunity supervision.” Code Crim. Proc. art. 42.12, $ 5(a). When a defendant is discharged after successmlly completing wmmunity supervision under deferred adjudication, such “dismissal and discharge

. . .may not be

3ArticleI,section 16,provides: “Nobill of attainder, w. post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.”

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deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense,” except for certain circumstances not relevant here. Id. $5(c). InRodriguez v. State, 680 S.W.2d 585 (Tex. App.--Corpus Clnisti 1984,no writ), the court stated that “[a] defendant whose adjudication ofguilt is deferred does not have a final conviction ad may not appeal unless he proceeds to a final adjudication.” Rodriguez, 680 S.W.2d at 587. Likewise, in Ttiplettv. State, 686 S.W.2d 342,345 (Tex.App.--Houston [lst Disk] 1985,writ ref d), the court said that “[dlefened adjudication means that a defendant has been indicted of a offense, rather than convicted.” Probation under deferred adjudication is different from probation that is granted after a sentence by suspending the sentence assessed. Reed v. State, 702 S.W.2d 738,740 (Tex. App.--San Antonio 1985, no writ). Seegenerally McNew v. State, 608 S.W.2d 166 (Tex. Crim. App. [Panel Op.] 1978); Attorney General Opinion DM-349 (1995). We conclude that the time payment fee does not apply to an individual who has been granted deferred adjudication. You also inquire about the meaning of the term “immediately,” as used in section 51.921. The time payment fee is applicable to a defendant who “seeks to pay the fine, court costs, or restitution over aperiod oftime rather than immediately.” You suggest that “immediately” means the time the sentence is pronounced by the court.4 Terms in the Government Code must be wnstrued in wntext and according to their common usage. Gov’t Code 4 311.Oll(a). “Immediately” has been held to mean ‘kvithout interval of time,” C.&R Transport,Zn.c.

v. Campbell, 406 S.W.2d 191, 195(Tex. 1966), and “forthwith,” Emmons v. Zngebretson, 279 F. Supp. 558, 568 (M.D. Iowa 1968). It does not mean “instantaneous,” Pickering v. American Employers Ins. Co., 282 A.2d 584, 592 (RI. 1971), but only “within a reasonable time considering all the circumstances,” Nuti&~~l Surety Corp. v. Wells,287 F.2d 102, 106(5th Cii. 1961). A satisfactory definition forpurposes of the statute under consideration might be “without unnecessary or unreasonable delay.” People v. Carter, 365 N.Y.S.2d. 964,968 (N.Y. Co. Ct. 1975). In our opinion, read in the context of section 51.921, injuxtaposition to “over a period of time,” “immediately” should be taken to mean “in a lump sum and within a reasonable time as directed by the wurt.” You next question whether, in the event the court wnsolidates several charges against one defendant, section 51.921“pennit[s] the imposition ofa fee for each charge consolidated or for each case.” The time payment fee is applicable to every individual fine, group of court costs, or restitution ordered by the court. It thus applies to every courtorder to pay “a fine, court costs, or restitution” Ifthe wurt consolidates severalcharges,and imposes a single charge ina single order,

‘You have notraised anadditional problemposed by the enactment ofGoveromeotcode,section51.921:Tbat statute distiqdes only between “immediatelly”and “over aperiodoftime,” wherea.sarticle 42.15, code of Crikoal Pm&we, distinguishes beIween “when sentence ispronounced,” “atsome later date,” and “atdesignated intewaLs.” Forpurposes ofoar analysis here,we areequating “over aperiod oftime” uoder section 51.921 only with “atdesignated i&n&” under aaicle 42.15. We do not evolve whether the section 51.921 fee also applies to a defendant who pays a fine in one hmp sum “ ‘at some later date.”

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it seems clear that only one time payment feemay be assessed. If, on the other hand the court issues more thanone order imposing a fine, wurt costs, or restitution, atime payment fee may be charged for each order. Finally, you ask whether the time payment fee is a “wst of court” forpurposes of collection. You explain that you are wncerned about the priority of payment for the various amounts assessed to a defendant by the court. Section 51.921 imposes the time payment fee on one who “has been ordered to pay a line, court costs, or restitution by the wurt,” and who seeks to make such payments

“over aperiod oftime.” The language of the statute would seem to provide contradictory answers to your question. On the one hand, in section 51.921(a)(2) the $25.00 fee is imposed as something otherthan“a fine, court costs, or restitution.” SeeAct of May 27, 1997,75th Leg., R.S., ch. 1327, 1997 Tex. Sess. Law Serv. 5024, 5024. On the other hand, subsection (b) states that “court fees under this section shall be collected in the samemanner m otherfees, fines, or costs inthe case.” Id. The time payment feejoins myriad other fees that the legislature has in recent years imposed upon convicted persons. See, e.g., Code Grim. Proc. arts. 102.005 (fees to clerks), .OOS (fees for services of prosecutors), .Oll (fees for services of peace officers), .013 (other court costs); .015 (misdemeanor costs), .017 (felony costs), .051 (costs for the benefit ofthe criminal justice planning fund), .081 (tra& conviction costs). The only difference between these costs and the time payment fee isthat the defendant may avoid the latter by paying his line, court costs, or restitution in a lump sum. Lie these other fees, proceeds from the time payment fee are shared among various organs of government.5 We do not believe that the time payment fee is sufficiently distinguishable from these other fees to permit us to conclude that it is not a “wst of court.” It is thus our opinion that the time payment fee wnstitutes a “wst of court” for purposes of wllection.

%~e latter portion ofsection 51.921provides:

(c) The custodian of the county or municipal treasury, as appropriate, shall keep a record of the amount of money on deposit ccGcted under this section and shall send 50 percent of the fees collected under this section to the comptmller at least as frequently as mont3ly. The ecmptroller shall deposit the feesreceived tothe.creditofthegeneral revenue fund. (d) The custodian ofthe county ormunicipal lxaswy, as appropriate, shall deposit 10 percent of the fees collected under this section in the general fund of the county or municipality forthepurpose of improving the efficiency of the administration ofjustice in the county or municipality. The county or municipality shall prioritize the needs of the judicial offmx who collected the fees when making expenditures under this subsection. (e) The co&dim ofthecounty or muoicipal treasury, as appropriate, shall deposit 40 percent ofthe fees collectedunder this section inthe general revenue account of the county 01municipality. Act of May 27.1997.75tb Leg., R.S., ch. 1327,1997 Tex. Sess. Law Serv. 5024.5024.

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SUMMARY Section 51.921ofthe Government Code, which imposes a “time payment fee” on every convicted defendant who chooses to pay his tine, court costs, or restitution “over a period of time” rather than “immediately,” is not violative of due process or equal protection under the Texas Constitution for the reasons expressed in Attorney General Opinion DM-123 (1992). The time payment fee is applicable only for offenses committed on or after September 1, 1997. It applies to all trial courts in the state, including constitutional county courts, but not to an individual who has been granted deferred adjudication. “Immediately” means ‘kithin a reasonable time as directed by the court.” Ifthe court consolidates several charges, and imposes a fine, court costs, or restitution in a single order, only one time payment fee may be assessed. The time payment fee is a “cost of court” for purposes of priority of payment.

DAN MORALES Attorney General of Texas JORGE VEGA First Assistant Attorney General SARAH J. SHIRLEY Chair, Opiion Committee Prepared by Rick Gilpin Deputy Chair, Opiion Committee

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