                                The Attorney          General of Texas
                                                  June 10, 1982
MARK WHITE
Attorney General

                              Honorable Bob McFarland                   Opinion No. MW-478
Supreme Cowl Suildlng
                              Chairman
P. 0. BOX 12540
Austin. TX. 7Sill. 2548       Committee on Constitutional Amendments    Re:   Disposition of fines
512/475-2501                  Texas House of Representatives            paid following trial de novo
Telex 8101874.1387            P. 0. Box 2910                            in county courts on appeal
Telecopier 5121475-0266       Austin, Texas   78769                     from municipal courts

1807 Main St.. suite 14w      *Dear Representative McFarland:
Dallar, TX. 75201.4709
214l742.SS44                       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 the municipal treasury.
4524 Alberta Ave..Sulte160
El Paso, TX. 799052793
915/W                              In order to answer this question, we must first determine what
                              article 45.11 provides. The version of article 45.11 which is printed
                              in Vernon's Texas Statutes Annotated differs~ from the version which
1220 Dallas Ave.. Suile 202
Houabm. TX. 770328988
                              appears in the enrolled senate bill which enacted the statute. We
71w5O.OSM                     must decide which version controls.

                                   Article 45.11 was enacted in 1965 by Senate Bill No. 107, which
808 Broadway, Suite 312       enacted the revised Code of Criminal Procedure. Acts 1965, 59th Leg.,
Lubbock. TX. 70401-3479
SOW47-5238
                              ch. 722. at 317. The version of the statute which appears in Senate
                              Bill No. 107, as enrolled, reads as follows:

4308 N. Tenth, Suite S                  The fine imposed on appeal [from the corporation
t&Allen, TX. 78501.1685                 court] and the costs imposed on appeal and in the
5121682-4547
                                        corporation court shall be collected of the
                                        defendant. and such fine of the corporation court
2ofJMaIn Plaza. suite 400               when collected shall be paid into the municipal
San Antonio, TX. 782052797              treasury. (Emphasis added).
51%225.4191
                              The version which is printed in'Vernon's Texas Statutes Annotated does
An Equal Opportunity/         not include the underlined words.
Afflrmatlva Action Employer
                                   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 controlling and 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
                                                                         ,   .

Honorable Bob 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 corporation court when 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 does not contain the underlined words.

     Attorney General Opinion WW-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 conclusion was the determination that the words "such
fine" in article 877 clearly referred to "the fine imposed [by the
county court] on appeal."

     Given the syntax of former article 877, the conclusion that "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 following question: do the words "such fine" now refer to
the "f,ineof the corporation court," rather than "the fine imposed on
appeal"? For the following reasons, we answer in the negative.

     Three settled principles of statutory construction must be
applied in this instance. First, 'the intention of 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
statute may 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 to provide for the disposition of
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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.

    Honorable Bob McFarland - Page 3   (MW-478)




             is the nullification of the judgment or order of
             the first tribunal and 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 imposed by the corporation court is automatically extinguished.

         Since there will&   no "fine of the corporation court" 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 to provide, in a statute dealing with fines and costs imposed
    on appeal, for the disposition of a fine which can never be collected
    if the case in which it is imposed & appealed.

         There is another reason why a literal construction of this phrase
    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 45.11 was 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 changes made in other statutes at 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 statute provides 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. (Emphasis added).

    As of 1965, then, corporation courts were prohibited by article 45.07
    from collecting court costs. See Deal v. State, 423 S.W.2d 929 (Tex.
    Crim. App. 1968). Former article 877 [now article 45.111 provided,
    however, that corporation court costs were 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
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Honorable Bob McFarland - Page 4   @fW-478)




in the legislative history of Senate Bill Wo. 107 suggests that any
other substantive change was intended. Certainly, if the legislature
had intended to designate a new repository for fines imposed by county
courts on appeal, some evidence of that intent would appear in the
legislative history.

     As noted, words may be omitted from a statute when necessary to
effectuate the legislature's intent. In this instance, we conclude
that two phrases should be treated as if omitted from article 45.11:
"and in the corporation court" and "of the corporation court." The
statute should, in other words, be regarded as if it reads as follows:

         The fine imposed on appeal and the costs imposed
         on appeal shall be collected of the defendant, and
         such fine when collected shall be paid into the
         municipal treasury.

     These omissions would effectuate the legislature's intent as we
perceive it. First, the omission of the words "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 omission of the words "of the corporation court" makes the
words "such fine" refer to "the fine imposed on appeal." Thus, fines
imposed in cases heard on appeal from corporation court must still be
returned to municipal treasuries. In our opinion, this result is not
only what the legislature most likely intended, since corporation
court cases originally arise as a result of the enforcement of a city
ordinance, but it is far more sensible in light of 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 imposed by 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 the municipal treasury.
                                                               A




                                        MARK      WHITE
                                        Attorney General of Texas

&IN W. FAINTER, JR.
First Assistant Attorney General


                                   p. 1689
Honorable Bob McFarland - Page 5   (W-478)




RICW    E. GRAY III
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger




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