                                   ATTORNEY GENERAL OF TEXAS
                                                 GREG        ABBOTT




                                                  February 9,2006



The Honorable Eddie Arredondo                                Opinion No. GA-0396
Burnet County Attorney
Burnet County Courthouse                                     Re: Whether the state may continue to collect
220 South Pierce                                             fines and court costs where no motion to
Burnet, Texas 78611                                          adjudicate has been filed and the term of deferred
                                                             adjudication has expired (RQ-0376-GA)

Dear Mr. Arredondo:

        You seek our opinion regarding whether the “state [can] properly pursue a defendant with
a CapiasproJine’ if the term of deferred adjudication has expired and no motion to adjudicate has
been filed.“2 You inform us that Burnet County uses a collections office to collect fines and court
costs and that the collections office has “discovered expired deferred adjudications with outstanding
court costs and fines.” Request Letter, supra note 2, at 1. Pointing to section 42.12 of the Code of
Criminal Procedure, which provides that “[o]n expiration of a community supervision period
imposed under Subsection (a) of this section, if the judge has not proceeded to adjudication of guilt,
the judge shall dismiss the proceedings against the defendant and discharge him,” you ask us to
consider whether the words “dismiss” and “discharge” mean an absolute bar or a partial bar to
further pursuit of the defendant.3 Id. (citing TEX.CODE GRIM.PROC.ANN. art. 42.12,s 5(c) (Vernon
supp. 2005)).




          “‘A ‘capias’ is a writ issued by the court or clerk, and directed ‘To any peace officer in the State of Texas,’
commanding him to arrest a person accused of an offense and bring him before the court immediately, or on a day or at
a term stated in the writ.” TEX. CODEGRIM.PROC.ANN. art. 23.01 (Vernon 1989). A cupiusprofine            is a “writ for the
arrest of a person who had not paid an imposed fine.” Tex. Att’y Gen. Op.No. GA-0332 (2005) at 2, fn.3 (citing
BLACK’SLAW DICTIONARY200 (7th ed. 1999)).

           *Request Letter from Honorable Eddie Arredondo, Burnet County Attorney, to Honorable Greg Abbott,
Attorney General of Texas (received Aug. 15,200s) (on file with Opinion Committee, also available at http:llwww.
oag.state.tx.us) [hereinafter Request Letter].

           ‘For purposes of this opinion, we assume that a judge has dismissed the proceedings and discharged the
defendant. You do not ask and we do not opine about any continuing jurisdiction of the court where the community
supervision period has expired but the judge has not affirmatively dismissed the proceedings and discharged the
defendant.
The Honorable Eddie Arredondo              - Page 2             (GA-0396)




          Article 42.12, Code of Criminal Procedure, is the state’s community supervision, or
probation, statute.4 See TEX. CODE CRIM. PROC. ANN. art. 42.12 (Vernon 1979 & Supp. 2005).
Among other types of community supervision, article 42.12 provides for “regular” community
supervision, either judge-ordered or jury-recommended,       see id. art. 42.12, $ $3,4, and for “deferred
adjudication” community supervision ordered by the judge. See id. art. 42.12, 5 5. In regular
community supervision, the defendant is found guilty and punishment is assessed but the imposition
of the sentence is suspended while the defendant is under community supervision. See id. art. 42.12,
00 3(a), 4(a). BY contrast, in deferred adjudication community supervision the defendant is placed
under community supervision without an adjudication of guilt. See id. art. 42.12, $ 5(a).
Community supervision of all types involves a community supervision period, see id. art. 42.12,
$5 3(b)-(d), 4(b)-(c), 5(a), during which the defendant is subject to conditions on behavior and
activities.’ See id. art. 42.12, 8 11. In the event a defendant violates a term of deferred adjudication
community supervision, the defendant may be arrested and brought before the court for a hearing to
determine whether to proceed with an adjudication of guilt on the original charge. See id. art. 42.12,
$ 5(b), (h). However, on the expiration of the community supervision period “if the judge has not
proceeded to adjudication of guilt, the judge shall dismiss the proceedings against the defendant and
discharge him.” Id. art. 42.12, 6 5(c). It is this last provision you ask us to construe.

          We understand you to ask whether the language “dismiss the proceedings against the
defendant and discharge him” deprives the court of continuing jurisdiction over the defendant, See
Request Letter, supra note 2, at 1. This office, like Texas courts, is obliged to give effect to
legislative intent, See City ofSan Antonio v. City ofBoerne, 111 S.W.3d 22,25 (Tex. 2003). To
ascertain such intent, we first look to the plain and common meaning of the statute’s words. See id.
“If a statute’s meaning is unambiguous, we generally interpret the statute according to its plain
meaning.” Id. “When the purpose of a legislative enactment is obvious from the language of the
law itself, there is nothing left” to construe. Fitzgerald v. AdvancedSpine Fixation Sys., 996 S.W.2d
864,866 (Tex. 1999).

        The terms “dismiss” and “discharge” are not directly defined in a statute or by a court. In the
context of legal proceedings in which article 42.12 is to be considered, the term “dismissal” is
defined as the “termination of an action or claim without further hearing.”            BLACK'S LAW
DICTIONARY 482 (7th ed. 1999). The term “discharge” means the “dismissal of a case.” Id. at 475.
We find nothing in article 42.12 to suggest that these terms mean anything other than the termination
of the deferred proceedings against the defendant. Thus, we construe “dismiss the proceedings
against the defendant and discharge him” to mean the dismissal of the charging instrument6 and the



          4”The terms ‘community supervision’ and ‘probation’ share the same meaning and are generally                used
interchangeably.”  Prevato v. State, 77 S.W.3d 3 17, 317 n.1 (Tex. App.-Houston [14th Dist.] 2002, no pet.).

        ‘Because you inquire about outstanding tines and court costs, we assume in this opinion that in each case the
payment of the fines and court costs was properly made a condition of the community supervision. See TEX.CODECFLIM.
PROC.ANN. art. 42.12, 9 19 (Vernon Supp. 2005).

       ‘j“The primary pleading in a criminal action on the part of the state is the indictment or information.”   TEX.CODE
GRIM.PROC.ANN. art. 27.01 (Vernon 1989).
The Honorable Eddie Arredondo             - Page 3            (GA-0396)




termination of the underlying criminal action for which community supervision was granted. See
Tex. Dept. of Pub. Safety v. Tune, 977 S.W.2d 650,652 (Tex. App.-Fort Worth 1998) (stating with
regard to regular probation the “dismissal of the indictment and the resultant set aside of the
conviction are functions a court must carry out upon the decision to release someone from
community supervision”), afjd, 23 S.W.3d 358 (2000).

          A court does not have personal jurisdiction over a defendant once it has dismissed the
proceedings and discharged the defendant under article 42.12, section 5(c). A court is vested with
personal jurisdiction over a criminal defendant only upon the presentment of a charging instrument
- either an indictment or an information. See TEX. CONST. art. V, 0 12 (“The presentment of an
indictment or information to a court invests the court with jurisdiction of the cause.“); see also Nam
Hoai Le v. State, 963 S.W.2d 838,843 (Tex. App.-Corpus Christi 1998, pet. ref’d); Miller v. State,
909 S.W.2d 586,592 (Tex. App.-Austin 1995, no writ). Dismissal of an indictment or information
is a jurisdictional matter. See Smith v. State, 801 S.W.2d 629,63 1 (Tex. App.-Dallas 1991, no writ)
(reciting well established rule that when a “trial court empowered with jurisdiction over a criminal
case sustains a motion to dismiss an indictment or information, the accused is discharged”); see also
Garcia v. Dial, 596 S.W.2d 524, 527 (Tex. Crim. App. 1980) (“[IIt is well settled that a valid
indictment, or information . . . , is essential to the district court’s jurisdiction in a criminal case.“).
A judge who dismisses the charging instrument pursuant to article 42.12, section 5(c) divests the
court of personal jurisdiction over the defendant. Where there is no jurisdiction, “‘the power of the
court to act is as absent as if it did not exist.“’ Garcia, 596 S.W.2d at 528 (quoting Ex Parte
Caldwell, 383 S. W.2d 587 (1964)). When the judge dismisses the proceedings against the defendant
and discharges him, the court no longer has personal jurisdiction over the defendant and, therefore,
no longer has authority pursuant to article 42.12 to issue a capiasprojine.7        See Smith, 801 S. W.2d
at 63 1 (“When there is no jurisdiction, a court has no power to act, and any action taken in the
absence of jurisdiction is void.“). Thus, we conclude that the phrase “dismiss the proceedings
against the defendant and discharge him” is an absolute bar to the further pursuit under article 42.12
of past due fines and court costs.

         In limited circumstances, a court nonetheless has continuing jurisdiction over a defendant
beyond the community supervision period. “A court retains jurisdiction to hold a hearing . . . and
to proceed with an adjudication of guilt, regardless of whether the period of community supervision
imposed on the defendant has expired, if before the expiration the attorney representing the state files
a motion to proceed with the adjudication and a capias is issued for the arrest of the defendant.”
TEX.CODE CRIM.PROC.ANN. art. 42.12,s 5(h) (Vernon Supp. 2005); see also Peacock v. State, 77
S.W.3d 285, 287 (Tex. Crim. App. 2002) (considering revocation of regular community
supervision); In re A.N.A., 141 S.W.3d 765, 766 (Tex. App.-Texarkana         2004, no pet.); Roberson
v. State, 688 S.W.2d 657,658 (Tex. App.-Eastland 1985, no writ) (considering deferred adjudication
community supervision). This limited grant of continuing jurisdiction is the exclusive authority with


          ‘During the period of community supervision, the court may unilaterally alter the terms and conditions of the
community supervision,     See Flournoy v. State, 589 S.W.2d 705, 707 (Tex. Crim. App. 1979). And in the event the
defendant violates the terms and conditions of community supervision such as by not paying fines and court costs, the
court has jurisdiction to issue a capias pro fine upon the filing of a motion to adjudicate within the community
supervision period. See TEX. CODEGRIM.PROC.ANN. art. 42.12, 3 5(b) (Vernon Supp. 2005).
The Honorable Eddie Arredondo              - Page 4             (GA-03 96)




 which a court is vested over a defendant once the deferred adjudication community supervision
period has expired, and it arises only when both a motion to adjudicate is filed and a capias is issued
before the expiration of the community supervision period. Moreover, this grant of continuing
jurisdiction is for the sole purpose of holding a hearing to determine whether to proceed with an
adjudication of guilt. See TEX. CODE CRIM. PROC. ANN. art. 42.12, $5(h) (Vernon Supp. 2005). By
its plain terms, section 5(h) does not grant jurisdiction for the issuance of a capiasprofine to pursue
past due fines and court costs once the community supervision period has expired. “Texas courts
do not have inherent power to grant probation,” Busby v. State, 984 S.W.2d 627,628 (Tex. Crim.
App. 1998), and a “court has only the power granted to it by the code in dealing with probation.”
Arrieta v. State, 719 S.W.2d 393,395 (Tex. App.-Fort Worth 1986, writ ret? d); see also Busby, 984
S.W.2d at 629 (“Be it authorized by Article III, 8 1 or by Article IV, 6 11A [of the Texas
Constitution], the granting of probation is completely subject to legislative regulation.“). Because
a Texas court has only the power to grant probation that is given it in legislation and because article
42.12, section 5(h) vests continuing jurisdiction in the court only where a motion to adjudicate has
been filed and a capias issued prior to the expiration of the community supervision period, we
conclude that where no motion to adjudicate has been filed prior to the expiration of the period, the
state may not pursue a defendant for past due fines and court costs with a capiasprofine.’




          *This conclusion is consistent with prior opinions from this office. In Opinion JM-165 this office considered
language identical to that in article 42.12, section 5(c) and concluded that a defendant whose adjudication was deferred
under article 42.13 (misdemeanor community supervision) could not be compelled to pay a line after the period of
probation had expired. See Tex. Att’y Gen. Op. No. JM-165 at 2 (1984) (former article 42.13 is now incorporated into
article 42.12, section 7). In 1998, this office concluded that “The failure to timely file the motion and issue the capias
deprives the court ofjurisdiction,   and jurisdictional matters may not be waived.” Tex. Att’y Gen. Op. LO-98-069 at 2.
The Honorable Eddie Arredondo      - Page 5         (GA-0396)




                                        SUMMARY

                       Article 42.12, section 5(h) of the Code of Criminal Procedure
               authorizes a criminal court to exercise continuing jurisdiction over a
               defendant after the expiration of the community supervision period
               only in limited circumstances.     Where no motion to adjudicate has
               been filed prior to the expiration of the community supervision
               period, article 42.12 does not authorize the state to pursue a defendant
               for past due fines and court costs with a capias profine.

                                              Very truly yours,




                                              Attorne ti     era1 of Texas



BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
