             TEXEATTOWNEY      GENERAL
                      OF TEXAS
                                                  3-e-




Honorable Bruce L. Miller           Opinion NO.   (c-648)
County Attorney
Deaf Smith County                   Re: Assessment of fine, court
Hereford, Texas                       costs, and costs of proba-
                                      tion under the Misdemeanor
Dear   Mr.   Miller:                  Probation Law of 1966.
        In an opinion request of this office you pose the
following questions:
                       When a person Is placed on probation
                       In accordance with the terms of the
                       Misdemeanor Probation Law of 1966,
                       Article 42.13, Code of Criminal Pro-
                       cedure, 1966, may the court cause
                       the collection of the fine and costs
                       assessed against the defendant prior
                       to the time the probation Is revoked.
                       When a person,is place~dupon pro-
                       bation in accordance with the terms
                       of Article 42.13 may the court collect
                       monthly payments from said person
                       for the costs of probation.
         Your first question is answered in the affirmative
and a court, after placing a defendant on probation, in .
accordance with the terms of Article 42.13, may legally
cause the collection  of such fine and costs as the court may
order prior to the revocation, if any, of said probation. It
is first noted that before any person may be granted a pro-
bation under the terms of this act, he must first apply in
writing to the court for said probation. In other words,
he must ask for it. By so doing, said person certainly
impliedly agrees to accept at least those terms of proba-
tion ordered by the court which are in accord with Section
5 of Article 42.13. One of those terms is a6 follows:
                       " ("1    .The terms fif probation 7
                        must'lnclude, but aYe not limiter
                        to the requirements that a pro-
                        bationer:



        .
                              -3144-
Honorable Bruce L. Miller, page 2      (c- 648)


                  (8) Pay his fine, if the court so
                  order-eand, if c,nebe assessed, in
                  one or several sums, a 1 e"
        It is our opinicn, therefore, that since the defen-
dant who is requesting probation agrees to abide by the
terms of the probation 2s ordered by the COLD% and authorized
by Article 42,13, a cour,tmay legally cause the collection
of any fine prior to revocation of said probation. It is
also our opinion that the court may require the collection
of coats prior to the revocation of said probation. In
Ex Parte Sethers, 209 S.W. 2d 358(Tex. Crim. 1948)  the
Probation and Parole Law which required that the placing
of the defendant on probation shall be considered final
disposition of the case for the purpose of determining when
fees are payable to any officer means that proper court costs
must be paid before a defendant can be released on probation
after conviction. We of course realize that the statutes
are,notidentical, but we believe that the same reasons
apply here as it did in Ex Parte Sethers.
        Your second question is answered in the negative.
We find no provision in the Code of Criminal Procedure o? any
other statute permitting costs of probation to be assessed
e,renot limit,edto those set out in Article Li2.13Section
r
2"   However, since we are unable to find any authority for
a court to assess such costs against defendant.under any
circumstances, it is our opinion .thatsuch costs of proba-
tion may not be assessed against a defendant. This would, in
effect, allow a court to increase the penalty fcr a violation
of the law, to an amount greater than that provided by the
Legislature.
                        S UMS4AR.Y
                        -------
        After placing a defendant on probation in
        accordance with Article 42-13, C.C.P., the
        court may legally cause the collection of
        any fine and costs prior to revocation of
        such probation. Under these same circum-
        stances, a court may not legally collect
        monthly payments from said defendant to
        cover the costs of probation.
                             Yours very truly,
                            WAGGONER CARR
                            Attorney General of Texas

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    Honorable Bruce L. Miller, page   3     (c-648)


                               BY
                                        K 11              0
                                    A%.s&nE'Attorney   General

    SK/lb
    APPROVED
    OPINION COMMITTEE
    W. V. Geppert, Chairman
    Lonny Zwlener
    Robert E. Owen
    w. 0. ShUliz
    Thomas Mack
    APPROVED FOR THE ATTORNEY GENERAL
    BY: T. B. Wright,
