                                           February 2,200O



The Honorable David M. Motley                   Opinion No. JC-0173
Kerr County Attorney
County Courthouse, Suite BA-103                 Re: Whether fines assessed and collected pursuant to
700 Main Street                                 an order modifying      the terms of community
Kerrville, Texas 78028                          supervision should be deposited with the county clerk
                                                or with the county community        supervision   and
                                                corrections department   (RQ-0086-JC)

Dear Mr. Motley:

        You ask us to determine the proper disposition of tines collected from a criminal defendant
pursuant to a court-ordered modification of the terms of the defendant’s community supervision.

        As a general rule, tines paid by a criminal defendant in a district or county court are collected
by a county officer pursuant to the requirements of chapter 103 of the Code of Criminal Procedure
and deposited in the county treasury. See TEX. CODE GRIM. PROC. ANN. arts. 103.003(a), .004(a),
,010 (Vernon Supp. 2000); Tex. Att’y Gen. Op. No. DM-396 (1996) at 8. Unless directed by law
to be deposited in a special fund, see Tex. Att’y Gen. Op. No. JC-003 1(1999) at 4-5, funds collected
as criminal tines and deposited in the county treasury normally are subject to laws governing the use
of general county funds, see TEX. CODE GRIM. PROC. ANN. art. 103.004 (Vernon Supp. 2000).

         Article 42.12 of the Code of Criminal Procedure, however, establishes a different procedure
for money collected from a criminal defendant as a result of an “increase in the defendant’s tine”
imposed pursuant to a modification of the terms of the defendant’s community supervision.
Community supervision, also known as probation, is “the placement of a defendant by a court under
a continuum ofprograms and sanctions, with conditions imposed by the court for a specified period
[of time.]” Id. art. 42.12, $ 2(2). During the period of community supervision, either (1) criminal
proceedings against the defendant are deferred without an adjudication of guilt, or (2) the defendant
is adjudicated guilty and the defendant’s sentence is probated and the imposition of sentence is
suspended in whole or in part. Id. If a tine has been assessed against a criminal defendant who has
been placed on community supervision and payment of the tine has not been probated, a judge may
require the defendant to pay his fine as a condition of community supervision. See id. $ 1 l(a)(S).
If the defendant violates the terms of his probation, the court, in accordance with certain procedures,
may continue the probation with or without modified terms, or may revoke the probation. See id.
 $5 10,21,22,23.     If ajudge modifies a defendant’s probation, the judge may, among other things,
 order an increase in the defendant’s fine. Id. 3 22(a)(3), (d).
The Honorable David M. Motley      - Page 2       (X-0173)




         Money received by the judge from the increase in the defendant’s tine must be deposited in
a special fund in the county treasury to be used by the county community supervision and corrections
department pursuant to chapter 76 of the Government Code:

                   (d) A judge may impose a sanction on a defendant described by
               Subsection (a)(3) ofthis section by increasing the fine imposed on the
               defendant.    The original fine imposed on the defendant and an
               increase in the tine imposed under this subsection may not exceed the
               maximum tine for the offense for which the defendant was sentenced.
               The judge shall deposit money received from an increase in the
               defendant’s tine under this subsection in the special fund of the
               county treasury to be used for the same purpose for which state aid
               may be used under Chapter 76, Government Code.

Id. art. 42.12, 5 22(d). Thus, a fine collected from a defendant on probation must be deposited in
a special fund for use of the county probation department if there has been an “increase in the
defendant’s fine” pursuant to a probation modification.

        You ask us to determine whether there is an “increase in the defendant’s fine” when a
probationer is ordered to pay all or part of the remainder of a partially probated tine:

               D is charged with a Class B misdemeanor, for which the possible
               range of punishment is up to 180 days in jail, and up to a $2,000 tine.
               D pleads guilty, and is assessed the entire 180 days in jail, fully
               probated, and is assessed the entire $2,000 tine, ofwhich $l,SOO.OO
               is to be probated.

               After several months, D’s probation officer receives information that
               D has committed a new offense, which constitutes a violation of D’s
               probation. D is arrested on a Motion to Revoke or Modify Probation,
               and a hearing is held on the motion. At the hearing, the judge decides
               that the D’s probation should be modified rather than revoked, and as
               punishment for the violation, reinstates $l,OOO.OOof the $l,SOO.OO
               that was originally probated.

                D, duly chastened, and attempting now to comply fully with his terms
                and conditions ofprobation, arrives at the courthouse, with $1 ,OOO.OO
                in hand (having previously paid the original $500.00 tine assessed at
                the time of the sentencing). Unfortunately, the probation department
                tells D that he must give them the money, and the Kerr County Clerk
                tells him that the money must be deposited with them. D is at a loss.
The Honorable David M. Motley       - Page 3      (K-0173)




Letter from Honorable David M. Motley, Kerr County Attorney, to Honorable John Comyn, Texas
Attorney General (July 15,1999), Brief at 1 (on tile with Opinion Committee) [hereinafter “County
Attorney’s Brief ‘I.

        Although your hypothetical calls on us to determine which county officer or department
should accept the funds fTom the defendant, in our view the critical issue raised by your inquiry is
not who should collect the funds, but where the funds ultimately should be deposited. Irrespective
of which office initially collects the money from the defendant, article 42.12 is concerned about
where the money ends up. Ifthe tine imposed under the circumstances you describe is an “increase
in the defendant’s tine,” it must be deposited in the county probation department’s special fund
pursuant to article 42.12, section 22(d), of the Code of Criminal Procedure. Otherwise, it goes into
the county’s general treasury fund.

         You tell us that the Kerr County Adult Community Supervision and Corrections Department
argues that when a judge reinstates part of a fine that has been probated, there has been an increase
in the defendant’s fine for purposes of article 42.12. See County Attorney’s Brief, supra, at 2. You
also tell us that the Kerr County Clerk argues, on the other hand, that in such a case there has been
no increase in the tine imposed on the defendant, but only an increase in the portion of the fine that
is immediately payable instead of probated. Id. at 1.

         In our view, an “increase in a defendant’s fine” for purposes of article 42.12, section 22(d),
of the Code of Criminal Procedure means an increase in the total tine assessed against the defendant,
including the probated and unprobated portions of the fine. The language of article 42.12 suggests
that “an increase in a defendant’s fine” refers to an increase in the “original fine” imposed upon the
defendant: “The original tine imposed on the defendant and an increase in the fine imposed under
this subsection may not exceed the maximum tine for the offense for which the defendant was
sentenced.” TEX. CODE GRIM. PROC.ANN. art. 42.12 5 22(d) (Vernon Supp. 2000). The “original
fine,” we believe, is the total tine assessed against the defendant at the time the defendant was
sentenced and placed on community supervision. Only when there has been an increase in the total
amount ofthe original tine has there been an “increase in the defendant’s fine” for purposes of article
42.12, section 22(d) of the Code of Criminal Procedure.

         In the scenario you lay out, the defendant was assessed a total fine of $2,000, of which
$1,500 was probated and $500 was required to be paid immediately. You say that the judge did not
increase the amount of the $2,000 tine, but “reinstateld] $l,OOO.OOof the $1,500.00 fine that was
originally probated.” County Attorney’s Brief, supra, at 1. But we believe that no “increase in a
defendant’s tine” has occurred in such a case because the total fine originally assessed against the
defendant, $2,000, was not increased. Indeed, there could have been no increase in the defendant’s
tine in your scenario, since the defendant had already been sentenced to the maximum tine allowable
for that offense. Article 42.12, section 22(d) provides that the original fine imposed on the defendant
and an increase in the fine may not exceed the maximum fine for the offense for which the defendant
was sentenced. Id. 5 22(d).
The Honorable David M. Motley       - Page 4       (X-0173)




         You also ask about the effect of an increase in a defendant’s tine, as opposed to a
modification of community supervision terms that does not effect an increase, when the defendant
is serving community supervision as part of a negotiated plea bargain. See County Attorney’s Brief,
supra, at 2. Plea bargaining involves a preconviction bargain between the prosecutor and the
defendant where the prosecutor makes a concession in exchange for the defendant’s promise to plead
guilty or nolo contendere. Perkins v. Third Court of Appeals, 738 S.W.2d 276, 282 (Tex. Crim.
App. 1989). The Code of Criminal Procedure provides that “[n]o plea of guilty or nolo contendere
shall be accepted by the court unless it appears that the defendant is mentally competent and the plea
is free and voluntary.”    TEX. CODE GRIM. PROC. ANN. art. 26.13(b) (Vernon 1989). When a
defendant enters a plea of guilty or nolo contendere pursuant to a plea bargain, and the plea is
accepted and the agreement approved by the trial court, the state is bound to carry out its side of the
plea bargain. See Expavte Austin, 746 S.W.2d 226, 227 (Tex. Crim. App. 1988) (en bane). If the
state does not live up to its part of the plea bargain and the bargain was used as inducement for a
plea, then doubt is raised as to whether the plea was truly voluntary. Id. You suggest that where a
defendant has pleaded guilty in exchange for probation and payment of a certain fine, then an
increase in that fine by the court changes the terms of the plea bargain and renders it involuntary.

         Article 42.12, section 22 of the Code of Criminal Procedure allows a court to modify the
terms of a defendant’s probation. TEX. CODE GRIM. PROC. ANN. art. 42.12, 5 22 (Vernon Supp.
2000). “Because a trial court retains continuing jurisdiction over a defendant’s probation, it has
almost unlimited authority as a matter of law to alter or modify any conditions of probation during
the probationary period.” Stevens v. State, 938 S.W.2d 517,520 (Tex. App.-Fort Worth 1997, pet.
ref d). You suggest that while a court clearly may modify the conditions of probation, it is not clear
that the court may change the “essential terms of the underlying judgment.”         County Attorney’s
Brief, supra, at 2. However, the Code of Criminal Procedure characterizes an increase in the
defendant’s tine as one of the conditions of community supervision that a court may modify. See
TEX. CODE GRIM. PROC.ANN. art. 42.12, $22(a)(3) (Vernon Supp. 2000); cf: Christopher v. State,
 1999 WL 997800 at 2, n. 1 (Tex. App.-Houston [ 1st Dist.] 1999, pet. filed) (stating that an extension
of the period of community supervision is a “modification of the conditions of community
 supervision” under article 42.12, section 22(a), ofthe Code of Criminal Procedure). The possibility
of an increase in the tine is a part of the plea bargain, and thus the imposition of an increase as part
 of a probation modification does not render the plea agreement involuntary. See Speth v. State, 1999
 WL 1076342 (Tex. Crim App.1999); Stevens, 938 S.W.2d at 520.
The Honorable David M. Motley      - Page 5      (JC-0173)




                                      SUMMARY

                      Article 42.12, section 22(d) of the Code of Criminal
              Procedure provides that money received from an increase in a
              defendant’s tine pursuant to a modification of the terms of the
              defendant’s community supervision must be deposited in a special
              fund in the county treasury to be used by the county community
              supervision    and corrections department.       An “increase in a
              defendant’s tine” for purposes of article 42.12, section 22(d), of the
              Code of Criminal Procedure means an increase in the total original
              fine, including the probated and unprobated portions of the fine,
              assessed against the defendant when the defendant was sentenced and
              placed on community supervision.




                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Barbara Grifftn
Assistant Attorney General - Opinion Committee
