# The Attorney General of Texas
April 7, 1980 MARKWHITE AttorneyGeneral

ml Md” Plaza.

su,,*400 San Antonio. TX. 78205 .512/-2E-4191 HonorableMauriceS. Pipkin Executive Director State Commission onJudicial Conduct Austin, Texas

Dear **Mr.** Pipkim OpinionNo. MW-162 Re: Whetheror not a county clerk may assess the fees prescribed in article 1064, Code of Criminal Procedure, in a case in which the proceedings have been deferred and ultimately dismissed pursuant to article~67Old,

section 143A.

**You** have asked whether the county clerk’s fees provided for inarticle 1064? Code of Criminal Procedure, may be assessed in cases where thejudge in hw discretion defers the proceedings to permit the defendant to complete a defensive drivbg course after which the charges are dismissed. V.T.C.S. art. 6701d,S 143A. There is noprovision for entry of a conviction nor finding **of** guilt. After dismissal the evidence **of** the original charge may not be used for any puqwe-. Id Such a deferred proceeding without entry of guilt has been held constitu&al. ‘Bakerv. State, 158 S.W.998 (Tex. Crim. App. 1913). Article 1064,Code of Criminal Procedure, provides: (0The clerks of the county courts, county courts at law and district courts shall be allowed the followhtg fees: (a) A fee of Fifteen Dollsrs ($15.00)in each ’ cause **filed** in said courts: for filing complaints,

‘information, for docketing and taxing costs for each defendant, **for** issuing original writs, issuing subpoenas, for swearing and impaneling a jury, receiving and recording verdict, for filing each paper entered in this cause, for swearing witnesses and for aRother clerical duties inconnection with such cause in county and district courts. (b)A fee of OneDollar (Sl.00)per psge or part of a page, to be paid at the time each order is placed, for issuitq each certified copy, transcript or any other

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paper authorized, permitted, or required, to be issued by said county clerk or clerk of county courts or clerk of district courts. Ina prior opinion this office has determined that the above fee may notbe assessed where the defendant has been granted a conditional discharge under the Controlled Substances Act, article 4476-l5, V.T.C.S., section 4.12. Attorney General Opinion H-1135(1978). Under that Act the accused may be placed on probation without the entry of guilt. The fees of article 1064,Code of Criminal Procedure, may be assessed only upona conviction. Attorney General Opinions H-ll35 (l978); -093 Q944). The deferred proceedings under the Controlled Substances Act are not appealable since there is no entry of conviction. George v. State, 557S.W.2d787(Tex. Crim. App. 1977). Section 143A,article 6701d states:

‘Sec. 143A. (a) Whena person is charged with a misdemeanor offense under this Act, other than a violation of Section 50 or 51, committed while operating a motor vehicle, the courtt

‘fl) in its discretion may defer proceedings and allow the person 90days to present evidence that, subsequent to the alleged act, the person has successfully completed a defensive driver’s eomwe approved by the Texas Department of. Public Safety or other driving safety course approved bythe court; or : ,

‘(2) shall defer proceedings and allow the person 90 days to present written evidence that, subsequent to the alleged act, the person has successfully completed a driving safety course approved by the court, if:

‘(A) the person presents to the court an oral request or written motion to take a course;

‘(B)the person hasavalid Texas driver’s Iicense orpermit; and

‘(Cl the person

’s driving record as maintained by the Texas Department of Public Safety does not indicate successful completion of a driving safety course under this subdivision within the two years immediately preceding the date of the alleged offense.

‘(b)Whenthe personcomplies with the provisons ofSubsection (a) of this se&ion and the evidence presented is accepted by the court, the court shall dismiss the charge. Whena charge is dismissed under this section, the charge may not be part of the person% driving record or used for any purpose, but the court &all report the fact that a person has successfully

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completed a driving safety course and the date of completion to the Texas Department of Public Safety for inclusion in the person ’s driving record The court shall note in its report whether the course was taken under the procedure provided by Subdivision (2) of Subsection (a) of this section **for** the purpose of providing information necessary to determine eligibility to take a subsequent course under that subdivision.’ Althoqh the provision does not explicitly state that the proceedings are deferred “without entering a judgment of guilt” as does the provision for conditional discharge under the Controlled Substances Act, we believe that section 143A implies that nojudgment of conviction is entered. The section states that the %mrgen shall be dismissed and makes no reference to setting aside a conviction. Therefore we believe the reasoning and authorities contained in Attorney General Opinion H-R35 (1978)are applicable to the ouestion herein posed andcompel us to conclude that the fees may not be assessed. SUMMARY The fees provided **for** in article 1064,Code of Criminal Procedure, may not be assessed where the misdemeanor proceedhtgs have **been** deferred pursuant to article 67Old, section 143A,V.T.C.S. J?wlwY&&

MARK WHITE Attorney General ofTexas JOHNW.PAINTER,

JR. First Assistant Attorney General TEDL. HARTLEY Rsecutive Assiitant Attorney General Preparedby David B. Brooks Assistant Attorney General APPROVED: OPINION

**COMMI ’** **lTEE** C. Robert Heath, Chairman David B. Brooks RobGammage SusanGarrison Rick Gilpin Bruce Youngblood

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