Honorable Oscar B. McInnis        Opinion No. M-983
Criminal,District Attorney
County Courthouse                 Re:   Whether provisions of
Edinburg, Texas 78539                   Senate Bill No. 841, Acts
                                        62nd Legislature, R.S.,
                                        1971 (Art. 1083, V.A.C.C.P.)
                                        require collection of court
                                        costs for the benefit of
                                        the Criminal Justice Plan-
                                        ning Fund fin connection
                                        with convictions for of-
                                        fenses which occurred prior
                                        to August 30, 1971, the
                                        effective date of legis-
Dear Mr. McInnis:                       lation.

     You have requested the opinion of this office as to the
following question:

        "Does this new statute [S.B. 8411 require the
     collection of the additional court cost for the
     benefit of the Criminal Justice Planning Fund on
     those cases in which the offenses were committed
     prior to August 30, 1971, the effective date of
     this Act?"

Your question must be answered in the negative.

     Senate Bill 841 provides, in part:

        "Sec. 3. (a) The Sum of $2.50 shall be taxed
     as costs ,of court, in addition to other taxable
     court costs, upon conviction in each misde-
     meanor case in which original jurisdiction
     lies in courts whose jurisdiction is limited
     to a maximum fine of $200.00 only.



        "Sec. 4.    The sum of $5.00 shall be taxed


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Honorable Oscar B. McInnis, page 2     (M-983)



     as costs of court, in addition to other taxable
     court costs, upon conviction in each misdemeanor
     case and the sum of $10.00 shall be taxed as
     costs of court, in addition to other taxable
     court costs, upon conviction in each felony
     case in all cases in which original jurisdic-
     tion lies in courts whose jurisdiction is li-
     mited to fines and/or confinement in a jail or
     the department of corrections.

        "Sec. 5. The costs due the State under
     this Act shall be collected along with and
     in the same manner as other fines or costs
     are collected in the case."

      It is a well settled principle of law that statutes are
presumed to operate prospectively unless there is a clear ex-
pression to the contrary.     53 Tex.Jur.2d 51, Statutes Sec.
28. Moreover, penal statutes imposing a penalty must be
strictly construed and the person seeking to recover the
penalty must bring himself clearly within the terms of the
statute.   53 Tex.Jur.2d 306, Statutes, Sec. 198. To hold
otherwise would be in violation of,Article I, Section.16, of
the Texas Constitution.    See Ex.Parte~Carson, 159 S.W.2d 126
 ',X .ChGA-n,.
            1&4V; *;%x PsttL~ Wian., 4FL5E X . CL% ',T%x.pZ,i.!.
                                                             . lA%%',;
 Caldwell v. State, 55 Ala. 133 (1876).

     In view of the foregoing authorities, it is our opinion
that the additional items of court cost provided by Senate
Bill 841 cannot be assessed on offenses committed prior to
August 30, 1971.

                           SUMMARY

      Additional court costs under Senate Bill 841
      cannot be assessed on conviction for offenses
      coanaitted prior to Auguat 30, 1971, the effec-
      tive date of the Act since a statute will not
      be applied retroactively with     a clear ex-
      pression to that effect.     ;




                                          ey General of Texas


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    Honorable Oscar B. McInnis, page 3    (M-983)



    Prepared by Max P. Flusche
    Assistant Attorney General

    APPROVED:
    OPINION COMMITTEE

    Kerns Taylor, Chairman
    W. E. Allen, Co-Chairman

    Lonny Zwiener
    Malcom Smith
    Austin Bray
    Camm Lary

    SAM MCDANIEL
    Staff Legal Assistant

    ALFRED WALKER
    Executive Assistant

    NOLA WHITE
    First Assistant




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