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 misdemeanors. 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 jurisdiction 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 miademeanors). 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 misdemeanor). 

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 rAc . 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 misdemeanor 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 subsection 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 conviction” 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 conditlons 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 govammental 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 disposition 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 complaint 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