**JIM MAlTOX**  **Attorney General** 

SupremeCowl BulldIn P.0. Box12545 Aurtln. TX. ?0711-2549 51214752591 T4I.x 9101874-1357 T&copler 5121475.0295

714Jackson. Sull. 700 oallas. TX. 752024505 214l742.9944

4824AIberIa Ave..Suite199 ElPaw. TX. 799052793 QlY533.3464

r Tex4s.Suite700 Houston,TX.77002.3111 713/223-5855

800Broadway.Suits312 Lubbock.TX. 79401.3479 5ow747.5235

4309N.Tenth,SuiteB McAllen.TX.78501-1555 512m82.4547

200MaInPlea, Suite4w (b) pay restitution to the victim of the SanAntonio.TX.79205.2797 offense in an mount not to exceed the fine 51212254191 assessed;

AnEqualOpporlunlty/ AffirmalIve Acilon Employel 

# TheAttorney General ofTexas
July 22, 1986

Hr. S. KentGibson WoodCountyAuditor Courthouea Quitman, Texas 75783 opinion no. a-526
Kc: Suspension of fines anddeferrals of final disposition under article 45.54 of the Codeof Criminal Procedure
DearMr.Gibson:
You hava inquired about the construction and application of article 45.54 of the Code of Criminal Procedure. Article 45.54 of the Codeof 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 ooEighways, as amended(Article 6701d, V@:rnon’s Texas Civil Statutes), the justice maysuspt:rrd **the** imposition of the fine and defer final di~lpositioo of **the** case for a period not to exceed l@Odays. (2) Euring said deferral period, the justice mayrequire the defendant to: (a) gost a bond in the amount of the fine assessed to secure paymeatof 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 hek,a,scomplied vith the requirements imposed, thejustke maydismiss the complaint. Otherwise,

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the justice mayreduce the fine **assessed or**  **may** then impose the f:inc assessed. **If the**  complaint is dismissed, a special expense not to exceed $50may be imposed. (4) Records relating to a complaint dismissed as provided by this article mayoot be expunged under Article 55.31 of this code. (Emphasis added).
The legislature enacted this statute to enable a “ justice” to makea form of probation available to defendants convicted of offenses with a maximumpunishment of a fine not to exceed $200, i.e. Class Cmisdemeanors. 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 6Bubany,xobation **:Eor**Class CMisdemeanors: ToFine or Not to Fine is Nowthe Question, ” 22So. Tcx. L.J. 249 (1981). Prior to that time, there was oo legislative authorization to allov probation lo non-traffic misdemeanor offenses puoishable byfine 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, oowrit); 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 mayonly be applicable when the defendant has agreed to the conditions of the deferral period.
In regard to section 1of article 45.54 of the Code of Criminal Procedure youhave asked t’w following questions:

1. Can a county judge or a municipal judge take action under this article?
2. Canacounty court orjustice 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. Canacounty orjustice court suspend fines anddefer final disposition of offenses described in article 66871’

. V.T.C.S., under article 45.54 of the Codeof Criad,nal Procedure?

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**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 CrimeFundcost 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 tobe collectsd?
In answer to the first question ,weconclude that section 1of article 45.54 of the Code of Criminal Procedure applies to amunicipal judge aswell as **a**justice of the peace. This provisioo wasenacted as part of Senate Bill **No.** 914 by tireSixty-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 Cmisdemeanors lo justice and corporation courts, ani. the proposed legislation was intended to give this power to these courts. Senate Comm.onJurisprudence, Bill Analysis **for** S.B. No. 914, 67th Leg. (1981). Moreover, the title to Senate Bill No. 914states **: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 ajustice of the peace andamunicipal judge. The question of whether a county judge maytake 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 hemayinvoke section 143A**of** article 6701d of V.T.C.S., andhe 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 ootme court” The court reasoned that since the county **that** the defendant wascharged lo, the county court hadnostatutory 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 16of the Texas Constitution and article 44.17 of the Codeof 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 commencedin that court.” Id. at 589-91; see also Code Grim. Proc. art. 44.17. -

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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 nostatutory 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 amunicipal judge! andajustice of thepeats may**take actioo**  under article 45.54 of the Codeof Criminal Procedurs.
Your secood question addresses the application of article 45.54 of the Code of Crtiloal Procedure to traffic offeoses (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 143Aof article 6701d. V.T.C.S., Uniform Act Replating Traffic on Bighvays. See Code Grim. Proc. art. 45.54, Il. Section 143Aof 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 8.8a Class Bmisdemeanor 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 **mia** demeanors). Article 45.5Gi does not apply to Class Bmisdemeanors. The offense of speeding la defined lo article 6701d. V.T.C.S. See ? V.T.C.S. art. 6701d. 5166. Accordingly, ajustice, 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 offeases relate to driver’s licencle requirements within the state of Texas. Since article 45.54 appli~w to all Class Cmisdemeanors 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. SeeV.T.C.S. art. 6687b. 513 (guilty of first offense of failure to display driver’s liceose is aClass Cmisdemeanor).
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 toVictims of CrimeFundat 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 changethe amountof the fee collected in Class Cmisdemeanor 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)

Crime

VictimsComp cnsatio r. Act,l rtlclo 8309-l et seq., creates the Compensation to Victims of Crime Fundto be used by the Industrial Accident Board for the payment of compensation to claimants under the act and other expanses in administering the act. 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, onconviction of amisdemeanor punishable by a fine of not more than $200, other than a misdemeanor that regulates pedestrians and the parking of motor vehicles. Thecourt shall assess andmakea 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** hadthe 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::Ludethat a defendant is to pay **the** $3.00 court cost at the time WEconviction rather than at the time the complaint is dismissed **under** section 3 **of** article 45.54. Of course, whenthe complaint is dismissed, aspecial expense fee not to exceed $50maybe imposed. See CodeGrim. 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 tobe 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 eachwarrant 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

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than at the time the complaint iJ dismissed under section 3of article 45.54 of the Codaof 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. Canthe pxovisiona of thebond mentioned in section **2(a)** of **article** 45.34 include the conditlons of the deferral period?
2. Canthe ccurt require acash bond?
3. What is the liability of the county, if someone is workinS as a condition of **the** deferral andis injured vhi.18working?
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 amountof 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 maynclt requircha defendant to comply with any other condition of the defc!rral, as acondition of the bond. Thebond is only one of the three conditions under section 2. Id. - Wealso 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 ajudicial officer to require the defendant to post bond “in the amountof 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 paymentof the fine. Thecourts have construed provisions authorizing the posting **of** bonds to allow surety bonds as well as cash boneis. See ExParte 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 aremet. 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. SeeCode Grim. Proc. art. 45.54, 12(d). Thus, if **the** defendant is Eured on the job while vorking under these circumstances, the

p. 2421Mr. S. KantGibson - Page 7 **(JU-526)**

employer, not the county, maybe liable for the injury. Zurich Gsnaral Accident 41Liabilit Insurance Co. v.?+AFi%E Laundry Cf.. 63S.W.Zd 263i”rax. Civ.‘App. - Fort Worth 1933, nowrit) (smployaa a liability la founded on some legal duty). But, if the county la the employer, the county maybe liable for personal injuries of **the** defendant under the sameconditions it would be liable to any other employee. CompareV.T.C.S. art. 6252-19, 93 (repealed 1985), with CodaGrim. Proc. art. 42.12, fad(f) (condition imposed ongovammental 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, andthe 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 thecity?
As to the first question, the Jp8CiJl expense fee is not a condition of deferral but :Lsanadded expanse vhich maybe imposed by the court after the complaint is dismissed. Opinion JM-165 (1984). CompareAttorney General If ,thedefendant fails to pay this additional costs the court mayissue Awrit of execution to enforce payment. Sea CodeGrim. Proc. art. 43.07. -
In regard to the f1rc.t part of your second question, webelieve 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 1of article 45.54 specifically provides that thejustice 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. SeeMatter of Estate of Minnick. 653 S.W.2d 503 (Tex. Civ. App. - Amarillo 1983, no writ); see also

p. 2422Ur. 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 maynot be exercised if the defendant elects **to** pay the fine imposed.
Thesecond 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,ndconviction at the time he is placed on probation. See Pitzpatric!r v. State, 1970); -

sea also Coda C&l. Proc. 458S.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, thematter of appeal from, or right I:Oreview, a finding by the trial court of noncompliance, a refusal to dismiss the complaint, and a decision to impose the deferred fine. Weare 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 bystatute. Sea C,odeGrim. Proc. art. 42.12, 18(b). Onthe other hand, where the lcgis:latura did not intend aright 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, nowrm; sea also EzIntyra v. State, 581 S.W.2d 413, 417 (Tex. Grim. App. 1979). Accordingly, YJ conclude that adefendant 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 amunicipal 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 bythe county court. Thefee mayonly be imposed if the complaint 1sdismissed. Code Grim. Proc. art. 45.54, 13. Since wehave concluded above that a county judge cannot invoke article 45.54, &, dismiss the complaint, the city is entitled to the fee. Cf. CodeGrim. 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 andmunicipal judges.
2. Article 45.54 of the Code of Criminal Procedure does n,otapply to traffic offenses (such as speeding) defined under article 6701d. V.T.C.S.

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,- 

### Xr.S.KantGibson - 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 maybe collected from ailafandant convicted of anoffense 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 Codaof Criminal lkocedura.
6. Acourt maynot 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 2of artic:le 45.54 of the Codaof 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 theCodeof Criminal Procedure. the county maybe held liable for personal injuries if the defendant is injured onthejob.
9. Since the wpecial expense fee authorized by section 3of artic!le 45.54 **of** the Codeof Criminal Procedure is anaddedexpense which maybe imposed by the court after the complaint is dismissed, the court mayissue Bvrit of execution under article 43.07 of the Codeof Criminal Procedure to enforce paymentof 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 toappeal adeferral condition imposei; by a trial court under article

p. 2424Ilr. S. KentGibson - **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 3of article 45.34 of the Coda of Criminal procedure **is the**  only official whoEay ,.,JpOSJ aJ?ecial axpansa fJJ.

MATTOX Attorney **General** of Texas
JACKHIGRTOWRR First Assistant Attorney General
MARY RELLRR Executive Assistant Attorney General
RICKGILPIN Chairman, Opinion Committee Prepared byTonyGuillory Assistant Attorney General

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