:= - 

,I .’ 

The Attorney General of Texas 

May 28, 1980 

MARK WHITE 

Attorney General 

Honorable Jimmy Mankins, Chairmzn Opinion No. MW-184 

Committee on Employment Practices 

Texas House of Representatives Re: Procedure in sssessing costs 

P. 0. Box 2910 in the Crime Victims Cdmpensation 

Austin, Texas 78769 Act, article 8309-1, V.T.C.S. 

Dear Mr. Msnkirr9: 

You have asked our opinion in construiq article &309-l, V.T.C.S., the 

Crime Victims Compensation Act. The relevant p&ion of the Act reads: 

Sec. 14 (a) The Compensation to Victims of Crime 

Pmd is created in the State Treasury to be used by 

the board for the payment of compensation to 

claimants tmder this Act and other expenses in 

administering this Act. The board shall make no 

payments which exceed the amount of money in the 

fmd. No general revenues may be used for payments 

under this Act. 

(b) A. person shall pay $15 A a court cost, in 

addition to other court costs, on conviction of any 

felary and shall pay $10 as a court cost, in addition to 

other court costs, on conviction of a misdemeanor 

punishable by imprisonment oc by a fine of mo?e than 

$200. 

(c) Court costs mder this section are collected in 

the same mann& as other fines or costs. 

Your fist question Is: 

Should the coats provided in Article 83094 be 

assessed on probated cases? 

It is well established that the ‘granting of probation in a felony case 

suspends only the sentence, not the conviction, which is final cmce the right 

of appeal is exhausted. Clapper v. State, 562 S.W.Od 250, 252 (Tex. Crim. 

App. 1978); Savant v. State, 535 S.W.2d 190, 191 (Tex. Crim. App. 1916); 

p. 587 
Honorable Jlmmy Mankim - Page Two (I4+1841 

,’ ‘.. 

S.W.2d 122 (Tex. Crhn. Aw. l973)1 Ses Coot& v. Texas Board of 

489 S.W.2d 129, 132 (Tex. Civ. AC- P 1972, writ rerd 

414 U.S. 1072, (1972), rah. denied, 414 U.S. ll7y(lS74), (probated 

felony conviction resulted in license nsvocationk A 

0980X M-1057 ,(1972). 

ttorney General Opinions MW-133 

Ths 1979 amendments to article 42.13, sections 3 and 3a, Code of Criminal 

Procedure, Misdemeanor Adult Probation and SupervIsion Law, track the language of 

the felony probation statute, article 42.12, Code of Criminal Procedure. Article 42.12 

provides in pert: 

Sec. 3. Ths fudges of the courts of the State of Texas hvig 

original jurisdiction of criminal actIons, when It shall appear to the 

satisfaction of the court that the ends of justice and the best 

interests of the public as well as the defendant will be s&served 

thereby, shall have the power, after conviction Q a plea of guilty 

for any crime or offanse, where the maximum punishmant assessed 

against the defendant &es not exceed ten years Imprisonment, to 

suspend the impcaition of the sentence and may place the 

defendant cn probation Q Impose a fine applicable.to the offense 

committed and also place the defalant ai probation as hereinafter 

provided. 

Sec. 3a. Where there is a conviction In any court of this State 

and the punishment assessed by the jury shall not exceed ten yesrs, 

the jury may recommend probation for a period of any term of 

years authorized for the offense fa which the defendant was 

convicted, . . . 

The new srticle 42.13 now speaks in terms of %onviction” and Indicates that, like 

fehy pmbation, misdemeanor probation suspm& only the sentence and not the 

conviction. Attorney General Opinion MW-133 (NO). 

A dsZerred adjudication of guilt establishes a different procedure fcr probation. The 

relevant portion of article 42.l3, section 36 provides 

(a) When in its opinion the best interest of society and the 

defendant .will be served, the court may, after receivirg a plea of 

guilty or plea of mlo contendere, hear@ the evidence, and find@ 

that it stistantfates the defendant% guilt, defer further proceedillgs without entering sn adjudication of guilt, and place the 

defendant cn p&&ion QI reasonable terms and amditions as the 

court may require and for a period as the court may prescribe not 

to exceed the maximum period of Imprisonment far the offense for 

which defendant is charged. However, igpan written motion of the 

defendant questifq final adjudication f&cl within 39 days after 

enter- such pla and the deferment of adjudication, the court 

shall proceed to fins1 adjudication as in all other cases. 

p. 588 
Honorable Jimmy Mankinr - Pege m NW-180 

(b) On violation of a condition of probation im& rndv 

Subsection (a) of this ssction, the defendant may be arrested and 

detained ag provided in Section 8 of this Article. The defendant is 

entitled to a heariw limited to the determination by the court of 

whether it proceeds with an djudication of guilt on the criginsl 

charge. No appeal may be taken from this determination. After an 

adjudicatfon of guilt, all proceedfrsyq includ@ assessment of 

punishment, pronouncement of sentence, grantiw of probation, and 

defendant’s appeal continue ss if the adjudication of guilt had not 

been deferred. 

Ex psrte Laday (No. 63,379, Tex. Crim. App., Peb. 20, 1980) and Crutchfield v. State, 560 

S.W.2d 685, 686 (Tex. Crim. App. 1978). both hold that an adjudication made rnder article 

42.13, section 3d does not establish a judgment of conviction. A fhtal conviction is 

recorded at a hearing held only if defendant has violated a condition of his original 

probation. Walker v. State, 557 S.W.Zd 785,786 (Tex. Crim. App. 3977). 

Therefore, since article 8309-1, section 14(b) speaks in terms of %nvictionn and 

since in article 42.12, sections 3, 3a and article 42.13, sections 3, 34 adjudication of guilt 

results in final conviction, costs should be assessed in those probated cases. In a probation 

under article 42.13, section 3d, however, final conviction is deferred until the revocation 

of probation, if any. Article 8309-l costs cannot be assessed until the court, in such a 

case, grants fins1 conviction after the revocation. 

Your second question is: 

Are the costs provided in Article 8309-l to be assessed as to crimes 

committed before September l, 19799 

A similar question was addressed in Attorney General Opinion M-983 (l97l) which 

involved a fee of 9250 denominated as costs of court and payable upon conviction of 

certain misdemeanors. The opinion concluded that the fee could r&t be assessed QI 

offenses committed prior to the effective date of the statute. On the basis of that 

opinion, it is our opinion that the costs provided for in article 8309-l may Mt be collected 

on conviction of a crime committed prior to September 1, 1979. See Tex. Const. art. 

I, S 16. - 

SUMMARY 

A person granted probation under article 42.12, sections 3, 3a or 

article 42.13, sections 3, 3a of the Code of Criminal Procedure has 

a final conviction end, as such, should be assessed the costs 

provided in article 8309-l. A person granted probation mdcr 

article 42.13, section 3d of the Code of Criminal Procedure &es 

not have a final conviction and cannot be assessed article 8309-l 

P. 589 
?horst.tle Jimmy Msnkim - P-0 POW W-184) 

Cats knpaed by utiele 8309-1, V.T.C.S.., rn; not be 

3 a~ amtictlon of crlmee commltted before Ssptamba I, 

. 

MARK WHiTR 

Attorney General of Texas 

JOHN W. PAINTER, JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Dawn Bnmer 

Assistant Attorney General 

APPROVRD: 

OPINION COMMIITEE 

C:Robert Heath, Chairman 

Dawn Bnmer 

Susan Garrison 

Ride Gilpin 

Jim Simpkins 

BNiX! YOW@hOd 

p. 590