                           The Attorney              General of Texas
                                             April    7, 1980

MARK WHITE
Attorney General


                       Honorable Maurice S. Pipkin               Opinion No. MW-162
                       Executive Director
                       State Commission on Judicial Conduct      Re: Whether or not a county clerk
                       Austin, Texas                             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.

                       Dear Mr. Pipkim

                             You have asked whether the county clerk’s fees provided for in article
                       1064?Code of Criminal Procedure, may be assessed in cases where the judge
                       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 no provision 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.    ‘Baker v. State, 158 S.W. 998 (Tex. Crim. App. 1913).

                            Article 1064, Code of Criminal Procedure, provides:

                                    (0 The clerks of the county courts, county courts at
                                  law and district courts shall be allowed the followhtg
                                  fees:
ml Md”Plaza.su,,*400
SanAntonio.TX.78205
.512/-2E-4191                         (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
                                   aR other clerical duties in connection with such cause
                                   in county and district courts.
                                      (b) A fee of One Dollar (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




                                                       P. 519
Honorable Maurice S. Pipkin   -   Page Two       (MW-162)



           paper authorized, permitted, or required, to be issued by said
           county clerk or clerk of county courts or clerk of district courts.

In a prior opinion this office has determined that the above fee may not be 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 upon a 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, 557 S.W.2d787 (Tex. Crim. App. 1977).

     Section 143A, article 6701dstates:

             ‘Sec. 143A. (a) When a 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
           90 days 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 by the 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 has a valid Texas driver’s Iicense or permit; 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) When the person complies with the provisons of Subsection (a)
           of this se&ion and the evidence presented is accepted by the court,
           the court shall dismiss the charge.

             When a 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




                                            p.   520
Honorable Maurice S. Pipkin   -    Page Three     (Mh’-162)


           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 no judgment 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 and compel 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 of Texas

JOHN W. PAINTER,JR.
First Assistant Attorney General

TED L. HARTLEY
Rsecutive Assiitant Attorney General

Prepared by David B. Brooks
Assistant Attorney General

APPROVED:
OPINIONCOMMI’lTEE

C. Robert Heath, Chairman
David B. Brooks
Rob Gammage
Susan Garrison
Rick Gilpin
Bruce Youngblood




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