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# The Attorney General of Texas May 28, 1980 MARK WHITE AttorneyGeneral
Honorable Jimmy Mankins,Chairmzn Opinion No. MW-184

Committee onEmployment Practices Texas HouseofRepresentatives Re: Procedure in sssessing costs P.0. Box2910 inthe Crime Victims Cdmpensation Austin, Texas 78769 Act, article 8309-1,V.T.C.S. Dear Mr. Msnkirr9: Youhave asked our opinion in construiq article &309-l,V.T.C.S., the Crime Victims Compensation Act. The relevant p&ion ofthe 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. Nogeneral revenues may be usedfor 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 $10as a court cost, inaddition to other court costs, on conviction of a misdemeanor punishable by imprisonment ocby a fine ofmo?ethan $200. (c) Court costs mder this section are collected in the same mann& as other fines or costs. Yourfist question Is: Should the coats provided in Article 83094 be assessed onprobated cases? It is well established that the ‘granting of probation in a felony case suspends only the sentence, not the conviction, which is final cmcethe right of appeal is exhausted. Clapper v. State, 562 S.W.Od250, 252 (Tex. Crim. App. 1978);Savant v. State, 535 S.W.2d 190, 191(Tex. Crim. App. 1916);

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S.W.2d 122(Tex. Crhn. Aw. l973)1Ses 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 inpert:

Sec. 3. Ths fudges of the courts of the State of Texas hvig original jurisdiction ofcriminal actIons, whenIt 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 ofguilty for any crime or offanse, where the maximumpunishmant 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 andalso place the defalant ai probationas 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 42.13now speaks in terms of %onviction” and Indicates that, like fehy pmbation, misdemeanor probation suspm& only the sentence and not the conviction. Attorney General OpinionMW-133 (NO). AdsZerred adjudication ofguilt establishes a different procedure fcr probation. The relevant portion ofarticle 42.l3, section 36provides

(a) When in its opinion the best interest of society and the defendant .willbe served, the court may, after receivirg a plea of guilty or plea ofmlo 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 QIreasonable terms and amditions as the court may require and for a period as the court may prescribe not to exceed the maximumperiod ofImprisonment far the offensefor which defendant is charged. However, igpanwritten 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 fins1adjudication as inall other cases.

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(b) On violation of a condition of probation im& rndv Subsection (a) of this ssction, the defendantmay be arrested and detained agprovided inSection 8 ofthis 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. Noappeal may betaken from this determination. After an adjudicatfon of guilt, all proceedfrsyq includ@ assessment of punishment, pronouncement of sentence, grantiw ofprobation, and defendant’s appeal continue ss if the adjudication ofguilt had not been deferred. Expsrte Laday (No.63,379, Tex. Crim. App., Peb. 20, 1980)and Crutchfield v.State, 560 S.W.2d685, 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. Walkerv. State, 557S.W.Zd785,786 (Tex. Crim. App. 3977). Therefore, since article 8309-1, section 14(b)speaks in terms of %nvictionn and since inarticle 42.12,sections 3, 3a and article 42.13,sections 3, 34 adjudication ofguilt results in final conviction, costs shouldbeassessed inthose probated cases. Inaprobation 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 fins1conviction after the revocation. Yoursecond question is: Are the costs provided inArticle 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 inarticle 8309-l may Mt be collected on conviction of a crime committed prior to September 1, 1979. See Tex. Const. art. I,S16. - SUMMARY A person granted probation under article 42.12, sections 3, 3a or article 42.13,sections 3, 3a ofthe Code ofCriminal 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,

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MARK WHiTR Attorney General ofTexas JOHNW.PAINTER,JR. First Assistant Attorney General TEDL. HARTLEY Executive Assistant Attorney General Prepared by DawnBnmer Assistant Attorney General APPROVRD: OPINIONCOMMIITEE C:Robert Heath, Chairman DawnBnmer Susan Garrison Ride Gilpin Jim Simpkins **BNiX!** YOW@hOd

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