                         QBfficeof tty Zlttornep Qhneral
                                      @ate of fEexae
DAN MORALES                               June 9,199Z
 ATTORNEY
      GENERAL
     Honorable John Sharp                          Opinion No. DM-123
     Comptroller of Public Accounts
     LBJ State Gffice Building                     Re: Whether section 51.702 of the
     Austin,Texas 78774                            Government Code, which authorizes the
                                                   commissioners court in each county to
                                                   adopt a resolution requiring the payment
                                                   of an additional $10.00 as court costs on
                                                   conviction of a criminal offense, violates
                                                   the Texas or United States Constitu-
                                                   tions (RQ-332)
     Dear Mr. Sharp:

            You have requested our opinion regarding the constitutionality of that
     portion of section 51.702 of the Government Code, which relates to the payment of
     additional fees and costs in certain statutory county courts. That provision states:

                   (a) In addition to all other fees authori& or required by
              other law, the clerk of a statutory county court shall collect a $20
              filing fee in each civil case filed in the court to be used for court-
              related purposes for the support of the judiciary.

                   (b) In addition to other court costs, a person shall pay $10
              as a court cost on conviction of any criminal offense in a
              statutory county court, including cases in which probation or
              deferred adjudication is granted. A conviction that arises under
              Chapter 173, Acts of the 47th Legislature, Regular Session, 1941
              (Article 6687b. Vernon’s Texas Civil Statutes), or a conviction
              under the Uniform Act Regulating Traffic on Highways (Article
              67Old, Vernon ‘s Texas Civil Statutes) is included, except that a
              conviction arising under any law that regulates pedestrians or
              the parking of motor vehicles is not included.

                   (c) Court costs and fees due under this section shall be
              collected in the same manner as other fees, fines, or costs are
              collected in the case.


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               (d) The clerk shag send the fees and costs collected under
          this section to the comptroller at least as frequently as monthly.
          The comptroller shall deposit the fees in the judicial fund.

               (e) Sections 51.320 and 51.321 apply to a fee or cost
          collected under this section.

             (f) This section applies only to fees and costs for a l2-
          month period beginning July 1 in a county in which the
          commissioners court:

                  (1) adopts a resolution authorizing the fees and costs
              under this section for the 1Zmonth period, and

                  (2) files the resolution with the comptroller not later
              than June 1 immediately preceding the .12-month period
              during which the fees and costs are to be collected.

        Section 51.702 was enacted by the last regular session of the legislature as
part of House Bill 66, a comprehensive package relating to the judiciary. See Acts
1991,72d Leg., ch. 746,s 67, at 2637, et seq. The bill establishes a uniform mini-
mum jurisdiction and a minimum salary scale for statutory county court judges. See
Gov’t Code 0 25.0015(a). The increase is funded primarily through the imposition
of the additional fees and costs at issue here, which are collected by the county clerk
and then transmitted to the comptroller for deposit in a “judicial fund.” Partici-
pation in the scheme requires action by the commissioners court by June 1.1992,
and a county which adopts the plan is to begin collecting the fees on July 1.1992.
You ask about the amstitutionahty of the “court cost” imposed by subsection (b) of
section 51.702.

        Section 51.702(b) requires the collection of $10.00 as court costs “on
conviction of any crimmal offense in a statutory county court” in any county which
has adopted the requisite resolution under section 51.702(f). Section 51.702, by its
very nature, does not apply to any county which has no statutory county court Thus,
if my county selects to participate in the scheme under that section, such county will,
after July 1, necessarily impose, for every conviction, a punishment which is greater,
by $10.00, than a conviction for the same offense in a county which either is
ineligible to participate in the statutory scheme, or elects not to do so.



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       In Attorney General opinion JM-880 (1988). this office, in holding that costs
imposed in misdemeanor cases involving state aiminal statutes must be uniform
statewide, declaredz

          In Texas, costs in misdemeanor crimM cases are assessed as
          partoftheptmishment....      A law allowing different costs to be
          assessed in different counties for the same penal offense would
          have the effect of allowing the penalty for statedefined crimes
          to vary from aamty to county and would violate both “due
          process” and “equal protection” constitutional rights.

Attorney General opinion JM-880 at 3; see &o Attorney General Opinion JM-1120
(1989). The opinion based this statement on a series of cases which had held that

          a Jaw that fixes a greater punishment in one county than in other
          counties for the violation of a state law cannot be upheld and is
          in contravention of constitutional inhibitions, both State and
          Federal.

Exjnvte czimcm, 159 s.w.2d 126,129 (Tex. Grim. App. 1942).

        In Ckwn, for example, the court held invalid a statute which provided for
payment of Sl.00 as costs in kminal cases in those counties having eight or more
district courts and three or more county courts. In Er partc Skemore, 8 S.W.2d 134
(Rx. Crh. App. 1928), the court invalidated a road law applicable to one particular
county, which allowed only the sum of fifty cents per day to be applied for the
payment of fines and costs imposed in misdemeanor cases, while a general state law
granted an allowance of three dollars per day in similar situations. See tzLro&p&e
Fetguson,  132 S.W.2d 408 (Tex. Grim. App. 1939); Exparlehfann, 46 S.W. 828 (Tex.
Grim. App. 1898).

        More recently, in Memet v. State, 642 S.W.2d 518 (Tex. App.-Houston [14th
Dia.] 1982, pet. ref’d), the court struck down section 5(c) of article 2372w, V.T.C.S.,
a statute which provided that the offense of operating without a permit a sexually
oriented commercial enterprise was a class C misdemeanor in any city with a




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comprehensive zoning ordinance, but a class B misdemeanor in any city without
such an ordinance. The court declared that the statute was

          tmconstitutional as a denial of due process and equal protection
          for prescriiing different penalties for the same conduct in
          different cities of the state.

642 S.W.2d at 525-26.

        Under the test announced in Curson, Memu, and the other cited cases,
section 51.702(b) is clearly invalid. It automatically imposes, in those counties which
have adopted the statutory scheme of section 51.702, a punishment, for conviction of
the same offense, which is greater than that imposed in those aumties which have
not adopted the statutory scheme, whether by choice or because the scheme is
inapplicable to them. Consequently, section 51.702(b) must be deemed to be
constitutionally infirm on both due process and equal protection grouads.

       In Attorney General Opinion JIvf-880,this office said that

          a statute found to be unconstitutional in part need not fall in its
          entirety if its provisions are not so connected in subject matter,
          so interdependent, or otherwise so bound together that it can be.
          presumed the legislature would have passed the law devoid of its
          mlconstitutional aspect, &.e p
             . .
          I)lstnct       153 s.w.2d 434 (Tex. 1941).

Attorney General Opinion JM-880 at 5.

        We understand that the $10.00 “costs” which we have declared to be
unconstitutional represent a significant portion of the “judicial fund” which the
statute requires the comptroller to maintain In turn, payment by the state of the
$25,000 per year for each statutory county court judge is dependent upon the judicial
fund Since that fund will lack a substantial portion of its anticipated revenues, it is
udikely that there will be sufkient money therein to finance the state’s monthly
payments. We cannot confidently assert that the legislature would have directed the
monthIy payments in the specified amounts if it had known that a portion of the
funding mechanism would be declared invalid. However, we have not been advised
as to whether an alternative funding mechanism might exist or become available.


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Since other funding might, therefore, be substituted for that provided by section
51.702, we decline to speculate at this time as to whether section 25.0015 might be
severable from section 51.702.

        You also ask about the constitutionality of section 51.702(a), which requires
 the collection of a $20.00 filing fee for each civil case filed in a statutory county
 court. It is not necessary to address this question. since section 51.702(f)(l)
 contemplates a commissioners court’s adoption of one resolution “authorizing the
fees and costs under this section.” (Emphasis added.) The statute requires adoption
 of the costs and fees as apackage, and there is no provision for adopting the fees of
 subsection (a) in the absence of a simultaneous adoption of the costs of subsection
 (b).    Thus, without regard to the constitutionality of section 51.702(a), a
 commissioners court is not empowered, as the statute presently stands, to approve
 that provision.

                                 SUMMARY
              Section 51.702(b) of the Government Code, which
          authorizes a commissioners court to adopt a resolution requiring
          the payment of an additional $10.00 in court costs for each
          criminal conviction in a statutory county coun, is ineffective on
          both due process and equal protection grounds. We do not
          decide whether section 25.0015, which authorizes payment by
          the state to each county of $25,000 for each statutory county
          court judge. is valid.

                                                  Very truly yours,



                                                  DAN      MORALES
                                                  Attorney General of Texas




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WILL.PRYOR
First As&ant Attomey General

MARY-
Deputy Assistant Attorney General

RENEAHICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Connnittee

Prepared by Rick Gilpin
Assistant Attorney General




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