MARK WHITE 

Attorney General 

Supreme Cowl Suildlng 

P. 0. BOX 12540 

Austin. TX. 7Sill. 2548 

512/475-2501 

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An Equal Opportunity/ 

Afflrmatlva Action Employer 

The Attorney General of Texas 

June 10, 1982 

Honorable Bob McFarland 

Chairman 

Opinion No. MW-478 

Committee on Constitutional Amendments Re: Disposition of fines 

Texas House of Representatives paid following trial de novo 

P. 0. Box 2910 in county courts on appeal 

Austin, Texas 78769 from municipal courts 

*Dear Representative McFarland: 

You'ask whether article 45.11 of the Code of Criminal Procedure 

requires that a fine imposed by a county court in' a case heard on 

appeal from a municipal court be returned to the municipal treasury. 

In order to answer this question, we must first determine what 

article 45.11 provides. The version of article 45.11 which is printed 

in Vernon's Texas Statutes Annotated differs~ from the version which 

appears in the enrolled senate bill which enacted the statute. We 

must decide which version controls. 

Article 45.11 was enacted in 1965 by Senate Bill No. 107, which 

enacted the revised Code of Criminal Procedure. 

ch. 722. at 317. 

Acts 1965, 59th Leg., 

The version of the statute which appears in Senate 

Bill No. 107, as enrolled, reads as follows: 

The fine imposed on appeal [from the corporation 

court] and the costs imposed on appeal and in the 

corporation court shall be collected of the 

defendant. and such fine of the corporation court 

when collected shall be paid into the municipal 

treasury. (Emphasis added). 

The version which is printed in'Vernon's Texas Statutes Annotated does 

not include the underlined words. 

Where there is a variance between a bill as enrolled and as 

printed, the former controls. Atchison, T. and S.P. Railkay Company 

V. Hix, 291 S.W. 281 (Tex. Civ. App. - El Paso 1926. no writ). 

Therefore, the version of article 45;il which appears in-senate Bill 

No. 107 is controlling and is the one which we shall construe. 

Article 45.11 is inartfully drafted, and its ,language is 

confusing. In construing the statute, therefore, we may examine its 

predecessor, article 877 of the old Code of Criminal Procedure. - See 
, . 

Honorable Bob McFarland - Page 2 (NW-478) 

State v. Standard Oil Company, 107 S.W.2d 550 (Tex. 1937); Zurich 

General Accident and Fidelity Insurance Company v. Walker, 35 S.W.2d 

115 (Tex. Comm'n App. 1931) (permissible to Ro behind adoption of 

ambiguous code provision for aid in determining legislative ‘intent). 

Article 877 provided that: 

The fine imposed on appeal and the costs imposed 

on appeal and in the corporation court shall be 

collected of the defendant, and such fine and the 

cost of the corporation court when collected shall 

be paid into the municipal treasury. (Emphasis 

added). 

The only difference between former article 877 and article 45.11 is 

that article 45.11 does not contain the underlined words. 

Attorney General Opinion WW-1079 (1961) construed former article 

877. In that opinion, this office concluded that the statute required 

counties to pay over to municipal treasuries any fine imposed by a 

county court in a case heard on appeal from a corporation court. The 

basis for this conclusion was the determination that the words "such 

fine" in article 877 clearly referred to "the fine imposed [by the 

county court] on appeal." 

Given the syntax of former article 877, the conclusion that "such 

fine" referred to "the fine imposed on appeal" was clearly correct. 

In 1965, however, when article 877 was recodified as article 45.11, 

the phrase "such fine and the cost of the corporation court" was 

rewritten to read "such fine of the corporation court." This change 

prompts the following question: do the words "such fine" now refer to 

the "f,ine of the corporation court," rather than "the fine imposed on 

appeal"? For the following reasons, we answer in the negative. 

Three settled principles of statutory construction must be 

applied in this instance. First, 'the intention of the Legislature is 

the dominant consideration in construing a statute." Calvert v. 

British-American Oil Producing Company, 397 S.W.Zd 839, 842 (Tex. 

1965). Second, a statute should not be construed in a manner which 

thwarts the legislature's intent or leads to absurdity if such a 

construction can reasonably be avoided. Rogers v. Dallas Ry. and 

Terminal Company, 214 S.W.2d 160 (Tex. Civ. App. - Dallas 1948), 

affirmed, 218 S.W.2d 456 (Tex. 1949). Third, words or phrases in a 

statute may be supplied or omitted in order to aive the statute "the 

meaning which effectuates its manifest purpose. h State v. Standard 

Oil Company, s, at 559. 

The purpose of article 45.11 is to provide for the disposition of 

fines and costs imposed in cases heard "on appeal" from corporation 

court. When a county court hears a case "on appeal" from corporation 

court, however, the trial is de nova. Tex. Const. art. V, 516; Code 

Crim. Proc. arts. 45.10. 44.17. The effect of a trial de nova: 

p. 1637 
. 

Honorable Bob McFarland - Page 3 (MW-478) 

is the nullification of the judgment or order of 

the first tribunal and a retrial of the issues on 

which the judgment or order was founded. When 

jurisdiction of the second tribunal attaches, the 

judgment or order of the first tribunal is not 

merely suspended, but is nullified. (Emphasis 

added). 

Southern Canal Company v. State Board of Water Engineers, 318 S.W.2d 

619, 622 (Tex. 1958). Thus, once the jurisdiction of a county court 

attaches in a case heard "on appeal" from a corporation court, any 

fine imposed by the corporation court is automatically extinguished. 

Since there will& no "fine of the corporation court" in a case 

which is appealed from that court to county court, it follows, in our 

opinion, that the phrase "such fine of the corporation court" in 

article 45.11 should not be construed literally, i.e., as the fine 

imposed by the corporation court. The legislature could hardly have 

intended to provide, in a statute dealing with fines and costs imposed 

on appeal, for the disposition of a fine which can never be collected 

if the case in which it is imposed & appealed. 

There is another reason why a literal construction of this phrase 

should be eschewed. In order to conclude that this is the 'proper 

construction, one must conclude that the intent of the 1965 amendment 

to present article 45.11 was to change the prior law so that counties 

would not have to return to municipal treasuries fines imposed by 

county courts in cases heard on appeal from corporation courts. In 

our opinion, such a change was neither contemplated nor intended by 

the 1965 Texas Legislature. 

When the 1965 amendment to present article 45.11 is analyzed in 

the light of changes made in other statutes at that time, it becomes 

clear that its sole purpose was to alter the manner in which the 

statute handled costs, not fines. In 1965, former article 873 of the 

old Code of Criminal Procedure, which dealt with costs in corporation 

court, was substantively amended and renumbered article 45.07. As 

amended, the statute provides that: 

No costs [in the corporation court] shall be 

nrovided for bv _ anv _ ordinance of anv incornorated 

city, town, or village, and' none shall be 

collected. (Emphasis added). 

As of 1965, then, corporation courts were prohibited by article 45.07 

from collecting court costs. See Deal v. State, 423 S.W.2d 929 (Tex. 

Crim. App. 1968). Former article 877 [now article 45.111 provided, 

however, that corporation court costs were to be collected. Attorney 

General Opinion WW-1079 (1961). In our opinion, the only purpose.of 

the 1965 amendment to present article 45.11 was to make that statute 

and article 45.07 harmonious. In this context, we note that nothing 

P. 1688 
. . 

Honorable Bob McFarland - Page 4 @fW-478) 

in the legislative history of Senate Bill Wo. 107 suggests that any 

other substantive change was intended. Certainly, if the legislature 

had intended to designate a new repository for fines imposed by county 

courts on appeal, some evidence of that intent would appear in the 

legislative history. 

As noted, words may be omitted from a statute when necessary to 

effectuate the legislature's intent. In this instance, we conclude 

that two phrases should be treated as if omitted from article 45.11: 

"and in the corporation court" and "of the corporation court." The 

statute should, in other words, be regarded as if it reads as follows: 

The fine imposed on appeal and the costs imposed 

on appeal shall be collected of the defendant, and 

such fine when collected shall be paid into the 

municipal treasury. 

These omissions would effectuate the legislature's intent as we 

perceive it. First, the omission of the words "and in the corporation 

court" makes article 45.11 fully consistent with article 45.07, 

although article 45.07 renders these 'words meaningless anyway. 

Second, the omission of the words "of the corporation court" makes the 

words "such fine" refer to "the fine imposed on appeal." Thus, fines 

imposed in cases heard on appeal from corporation court must still be 

returned to municipal treasuries. In our opinion, this result is not 

only what the legislature most likely intended, since corporation 

court cases originally arise as a result of the enforcement of a city 

ordinance, but it is far more sensible in light of the fact that there 

cannot & a "fine of the corporation court" in a case which is 

appealed to county court. 

We therefore conclude that under article 45.11 of the Code of 

Criminal Procedure, a fine imposed by a county court in a case heard 

on appeal from a municipal court must be returned to the municipal 

treasury. 

SUMMARY 

Under article ,45.11 of the Code of Criminal 

Procedure, a fine imposed by a county court in a 

case heard on appeal from a municipal court must 

be returned to the municipal treasury. 

A 

MARK WHITE 

Attorney General of Texas 

&IN W. FAINTER, JR. 

First Assistant Attorney General 

p. 1689 
Honorable Bob McFarland - Page 5 (W-478) 

RICW E. GRAY III 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Patricia Hinojosa 

Jim Moellinger 

p. 1690