MARK WHITE Attorney General

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An EqualOpportunity/ Afflrmatlva Action Employer 

# The Attorney General of Texas

June 10, 1982

HonorableBob McFarland Chairman OpinionNo.MW-478 Committeeon ConstitutionalAmendments Re: Disposition of fines TexasHouse of Representatives paid following trial de novo P. 0. Box 2910 in county courts on appeal Austin, Texas 78769 frommunicipal courts *DearRepresentativeMcFarland: 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 themunicipal treasury.
In order to answer this question, we must first determine what article 45.11provides. The version of article 45.11which 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 decidewhich version controls. Article 45.11 was enacted in 1965 by Senate Bill No. 107, which enacted the revisedCode of Criminal Procedure. ch. 722. at 317. Acts 1965, 59th Leg., The version of the statute which appears in Senate BillNo. 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. (Emphasisadded). The versionwhich isprinted in'Vernon'sTexas StatutesAnnotated does not include theunderlinedwords. 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 controllingand 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 -, . HonorableBob 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 corporationcourtwhen 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 doesnot contain theunderlinedwords. Attorney General OpinionWW-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 conclusionwas the determination that the words "such fine" in article 877 clearly referred to "the fine imposed [by the county court]on appeal." Given the syntaxof formerarticle 877, the conclusionthat "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 followingquestion: do thewords "such fine"now refer to the "f,ine

of the corporationcourt," rather than "the fine imposedon appeal"? For the followingreasons,we answer in the negative. Three settled principles of statutory construction must be applied in this instance. First, 'the intentionof 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 statutemay 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 toprovide for the dispositionof 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:

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is the nullification of the judgment or order of the first tribunaland 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 imposedby the corporationcourt is automaticallyextinguished. Since therewill& no "fine of the corporationcourt" 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 toprovide, in a statutedealingwith fines and costs imposed on appeal, for the dispositionof a finewhich can never be collected if the case inwhich it is imposed& appealed. There is another reasonwhy a literal constructionof thisphrase 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 45.11was 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 changesmade in other statutesat 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 statuteprovides 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. (Emphasisadded).
As of 1965, then, corporationcourtswere prohibitedby article 45.07 from collectingcourt costs. See Deal v. State, 423 S.W.2d 929 (Tex. Crim. App. 1968). Former article 877 [now article 45.111 provided, however, that corporationcourt costswere 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. . HonorableBob McFarland - Page 4 @fW-478)

in the legislativehistory of Senate Bill Wo. 107 suggests that any other substantivechangewas intended. Certainly, if the legislature had intended to designatea new repository for fines imposedby county courts on appeal, some evidence of that intent would appear in the legislativehistory. As noted, words may be omitted from a statutewhen necessary to effectuate the legislature's intent. In this instance, we conclude that two phrases shouldbe treated as if omitted from article 45.11: "and in the corporation court" and "of the corporation court." The statute should, in otherwords, be regardedas if it reads as follows:

The fine imposed on appeal and the costs imposed on appeal shallbe collectedof the defendant,and such fine when collected shall be paid into the municipal treasury. These omissionswould effectuate the legislature's intent as we perceive it. First, the omissionof thewords "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 omissionof thewords "of the corporationcourt"makes the words "such fine" refer to "the fine imposed on appeal." Thus, fines imposed in cases heard on appeal from corporation courtmust stillbe returned to municipal treasuries. In our opinion, this result is not only what the legislature most likely intended, since corporation court cases originallyarise as a result of the enforcementof a city ordinance,but it is farmore sensible in lightof 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 imposedby 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 themunicipal treasury. A

MARK WHITE Attorney General of Texas
&IN W. FAINTER,JR. FirstAssistantAttorneyGeneral

p. 1689HonorableBob McFarland - Page 5 (W-478)

RICW E. GRAY III ExecutiveAssistantAttorney General Preparedby Jon Bible AssistantAttorneyGeneral
APPROVED: OPINION COMMITTEE Susan L. Garrison,Chairman Jon Bible RickGilpin PatriciaHinojosa JimMoellinger

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