                         THE   ATTORNEY       GENERAL
                                  OF  TEXAS


                                    May 18, 1988




         Honorable Randall L. Sherrod      Opinion No. Jm-905
         Criminal District Attorney
         Randall County                    Re: Whether a Justice of the
         501 16th Street                   Peace must collect a $75 fee
         Canyon, Texas 79015               at the time a defendant's
                                           fine is deferred under arti-
                                           cle 45.54 of the Texas Code
                                           of Criminal Procedure,    and
                                           related questions   (RQ-1387)

         Dear Mr. Sherrod:

              You ask:

-                    (1) Must a justice court collect a fee of
                 $75 pursuant to art. 6701h, Section      lC(b)
                 V.A.T.S., at the time payment of a Criminal
                 defendant's fine is deferred under article
                 45.54 of the Texas Code    of Criminal  Proce-
                 dure?

                    (2) May a    justice court    use  monies
                 collected by it under article 6701h, Section
                 lC(e) V.A.T.S.,  in the same manner  that a
                 prosecutor's office uses funds collected  by
                 it under article 53.08 V.A.C.C.P.?

              Section lC(b) of article 6701h, V.T.C.S., provides

                    In addition to the fine levied under
                 Subsection (a) of this section, a person
                 convicted of a violation of that subsection
                 shall pay a sum of Seventy-five Dollars ($75)
                 as costs of court to be collected in addition
                 to other taxable court costs at the same time
    _-           and in the same manner as fines and other
                 court costs.




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Honorable Randall L. Sherrod - Page 2         (JM-905)




     Article  45.54 of the     Code      of    Criminal   Procedure
provides in pertinent part:

            (1) Upon conviction of the defendant of a
        misdemeanor punishable   by fine only, other
        than a misdemeanor    disposed of by Section
        143A, Uniform Act Regulating      Traffic
        Highways    (Article  6701d, V.T.C.S.),    t::
        justice may suspend the imposition     of the
        fine and defer final disposition of the case
        for a period not to exceed 180 days.

           .   .   .

           (3) At the conclusion     of the deferral
        period,  if  the   defendant  presents    satis-
        factory evidence that he has complied with
        the requirements   imposed, the justice may
        dismiss the     complaint.    Otherwise,     the
        justice may reduce the fine assessed or may
        then impose the fine assessed.         If    the
        complaint is dismissed, a special expense not
        to exceed the amount of the fine assessed may
        be imposed.

     In Attorney   General Opinion JR-526     (1986), it was
concluded that in an article     45.54 proceeding   the court         i
costs are payable at the time of conviction rather than at
the end of the deferral period when the complaint          is
dismissed.  The opinion noted that an exception to that rule
was the qlspecial expense" cost that section 3 authorizes "if
the complaint by express terms of the statute is dismissed."

     A person must be convicted before article     45.54 is
applicable.  A violation under 6701h is a finable violation
subject to the deferral of fine provisions of article 45.54.
Article 6701h provides for the collection of a fee of $75.00
at the time a person is convicted.    There is no provision
for deferral of costs under article 45.54. Hence, costs are
collectable upon conviction.

     In your second question you ask whether a justice court
may use fees collected under subsection (e), section 1C of
article 6701h in the same manner that a prosecutor‘s  office
is authorized to use funds collected under former article




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Honorable Randall L. Sherrod - Page 3   (JK-905)




53.08 of the Code of Criminal Procedure.1   Former article
653.08 of the Code of Criminal Procedure was repealed by
Acts 1987, 70th Leg., ch. 167, 54.01(b).        The former
statute's provisions are now located at article 102.007 of
the Code of Criminal Procedure.

     Subsection (e) of section 1C of article 6701h author-
izes the assessment  of a fee at the time of dismissal  of
proceedings.  Subsection (e) states:

          The court shall require payment of a Ten
       Dollar ($10) fee before dismissing   proceed-
       ings under Subsection (a) of this section.
       The fee collected by a municipal court under
       this subsection   shall be deposited  in the
       municipal treasury.    The fee collected   by
       another court under this subsection shall be
       deposited  in the county treasury of the
       county in which the court collecting the fee
       is located.     Money deposited under    this
       subsection mav be used bv     the court that
       collected  the monev     to defray   exoenses
       incurred in     administerina  this  section.
       (Emphasis added.)

     Article 102.007   (former article 53.08) authorizes  a
county attorney,  district attorney, or criminal district     :
attorney to collect a fee if his office processes a hot
check under certain circumstances.     The statute  further
provides that

           (e) Fees collected under this      article
        shall be deposited in the county treasury   in
        a special  fund to be administered    by the
        county attorney,    district   attorney,    or
        criminal district attorney.      Expenditures
        from this fund     shall be    at the     sole



   1. The 66th Legislature   in 1979 enacted two different
statutes which were both codified as article 53.08 of the
Code of Criminal Procedure. Acts 1979, 66th Leg., ch. 604,
52 at 1335; Acts 1979, 66th Leg., ch. 734, 51 at 1802.
These two statutes have since been repealed and their texts
reenacted as sections  102.006 and 102.007 of the Code of
Criminal Procedure.   Your question concerns    the statute
which is now section 102.007 of the Code of Criminal
Procedure.




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Honorable Randall L. Sherrod - Page 4   o-M-905)




        discretion of the attorney,  and may be used
        only to defray the salaries and expenses  of
        the prosecutor's office. . . .

     In Attorney General Opinion JR-738 (1987) the matter of
the expenditure  of fees collected under this article was
discussed.   In Attorney   General Opinion JM-738    it was
stated:

           This statute creates a special fund which
        is in the county treasury,     but which   is
        segregated from other county funds and ear-
        marked for a specific purpose. More    impor-
        tantly, the statute states that the fund
        is to be administered by county attorneys,
        district  attorneys,  and criminal   district
        attorneys, and that, within the limits set
        out therein.   exoenditures  from the    fund
        are to be made at their sole discretion.
        (Emphasis added.)

     Fees collected   under article  102.007  (former article
53.08) may be expended at the discretion of the designated
prosecutors to defray the salaries and expenses       of that   --.
office. Attorney    General Opinion JM-738.    Expenditure of
fees collected by the justice court under subsection (e) of
section 1C of article 6701h are limited by the express terms
of the     statute to    defraying  "expenses    incurred  in
administering this section."

                       SUMMARY

           Article 45.54 of the Code of Criminal
        Procedure makes no provision for deferral   of
        court costs and the $75.00 costs of court
        authorized by section lC(b) of article 6701h,
        V.T.C.S. are to be collected upon conviction.
        Expenditure    of   fees   collected     under
        subsection (e) of section 1C of article 6701h
        may be expended by the court that collected
        the money solely to "defray expenses incurred
        in administering  this section    [failure to
        maintain financial responsibility]."




                                   JIM     MATTOX
                                   Attorney General of Texas    ?




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    Honorable Randall L. Sherrod - Page 5   (JM-905)




    MARY KELLER
    First Assistant Attorney General
-
    MU MCCREARY
    Executive Assistant Attorney General

    JUDGE ZOLLIE STRAKLEY
    Special Assistant Attorney General

    RICK GILPIN
    Chairman, Opinion Committee

    Prepared by Tom G. Davis
    Assistant Attorney General




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