                THE   ATTOKSET         GESERAL
                          OF   TEXAS




                          December 27, 1989


Honorable Bob Bullock              Opinion No.   JM-1124
Comptroller of Public Accounts
L.B.J. State Office Building       Re: Effect of amendments
Austin, Texas   78774              to statutes that allow a
                                   driver to defer disposi-
                                   tion of punishment  pending
                                   successful  completion of a
                                   defensive driving course
                                   (RQ-1815)

Dear   Mr. Bullock:

     You ask about the effect of an amendment to section
143A of article 6701d, V.T.C.S., by Senate Bill 1204 of the
71st Legislature.    Section 143A permits a court to defer
disposition  of punishment    for driving offenses pending
successful completion of a defensive    driving course.   You
also direct our attention to Senate Bill 1085 of the 71st
Legislature because of its provision relating to the payment
of court costs.   You advise us that your concern with Senate
Bill 1085 is limited solely to the effect it may have on
costs in a section 143A proceeding.

      Section 143A of article 6701d, V.T.C.S., as amended by
Senate Bill 1204, Acts 1989, 71st Leg., ch. 1105, 5 2, at
4579, effective    September 1, 1989, provides  in pertinent
part:
             (a) When a person is charged with a mis-
         demeanor offense under this Act, other than
         a violation of Section 51, committed    while
         operating   a motor vehicle,   the defendant
         shall be advised of his right to successfully
         complete a driving safety course and the
         court:

                 (1) in its discretion  may defer pro-
             ceedings and allow the person 90 days to
             present evidence that, subsequent to the
             alleged act, the person has successfully
             completed a driving safety course approved
             by the Texas Department of Public Safety




                                 p. 5905
Honorable Bob Bullock - Page 2,,(JM-1124)




           or other driving safety course approved by
           the court; or

               (2)  shall defer proceedings and allow
           the person 90 days to present a depart-
           ment-approved    certificate    of   course
           completion   as   written  evidence   that,
           subsequent to the alleged act, the person
           has successfully     completed   a  driving
           safety course approved       by the   Texas
           Department of Public Safety or another
           driving   safety course approved by the
           court, if:

                    (A) on or before the answer date
                on the cjtation the person enters a
                plea in person or in writing of No
                Contest or Guilty and presents to the
                court an oral request or a written
                request, in person or by mail post-
                ma
                rk ed on
                on the citation, to-take a course;

                    (B) the
                the nerson's ~1 a f No Contest or
                Guiltv at the tize Othe olea is made
                fl
                for 90 davs;

                   &)- the person has a valid   Texas
                driver's license or permit:

                   m    [@)I  the person's    driving
                record as maintained   by the Texas
                Department of Public Safety does not
                indicate su,ccessful completion of  a
                driving safety course under      this
                subdivision within the two      years
                immediately preceding the date of the
                alleged offense:

                   1E). [fD)] the person   files
                affidavit with the court stating thi:
                the person is not in the process   of
                taking a course under this subdivi-
                sion and has not completed a course
                under this subdivision that is not
                yet reflected on the person's driving
                record: and




                             P. 5906
Honorable Bob Bullock - Page 3 (JM-1124)




                   m   [f3)] the offense charged   is
                for an offense covered by this sec-
                tion other than speeding 25 miles per
                hour or more over the posted speed
                limit at the place where the alleged
                offense occurred.

            (b) When the person complies with the
        provisions of Subsection (a) of this section
        and a certificate     of course    completion
        approved by the department is accepted by the
        court, the court shall rem ve the ludoment
        and dismiss the charge, bug the court may
        only dismiss one charge for completion     of
        each course.

           When a charge   is dismissed under this
        section, the charge may not be part of the
        person's  driving record or used for any
        purpose, but the court shall report the fact
        that a person has successfully completed     a
        driving safety course and the date of comple-
        tion to the Texas Department of Public Safety
        for inclusion in the person's driving record.
        The court shall note in its report whether
        the course was taken under the procedure
        provided by Subdivision (2) of Subsection (a).
        of this section for the purpose of providing
        information  necessary  to determine    eligi-
        bility to take a subsequent course under.
        that subdivision.  An insurer delivering    or
        issuing for delivery a motor vehicle       in-
        surance policy in this state may not cancel
        or increase the premium charged the insured
        under the policy merely because of an offense
        dismissed under this section or because    the
        insured completed  a driving    safety course
        under this section.      (Emphasis   indicates
        changes and additions made by Senate Bill
        1204.)                                                   .

     Senate Bill 1085, Acts 1989, 71st Leg., ch. 347, §§ 2,
6, 9, 10, at 1316, effective October 1, 1989, amends article
102.051 of the Code of Criminal Procedure, section     415.082
of the Government    Code, section 1C of the Texas Motor
Vehicle Safety-Responsibility Act (article 6701h, V.T.C.S.),
and section   14 of the Crime Victims       Compensation   Act
(article 8309-1, V.T.C.S.).   Each of these statutes provides
for payment of court costs upon conviction of the defendant.
The amendments by Senate Bill 1085 provide in all of the




                               p. 5907'
Honorable Bob Bullock - Page 4   (~~-1124)




foregoing statutes that a person is considered to have been
convicted in a case if a sentence is imposed, the defendant
receives probation or deferred adjudication,   or the court
defers final disposition of the case.

     Article 102.051 of the Code of Criminal         Procedure
provides   that a defendant     convicted  of a    misdemeanor
punishable by a fine, not to exceed $200, shall pay as cost
of court $5.      In the event the conviction       is for a
misdemeanor   punishable   by a fine exceeding     $200,   the
defendant shall pay court costs of $10.        Pedestrian   and
parking offenses are excepted    from these costs.   Municipal
and county treasurers    may retain 10 percent of the costs.
Id. art. 102.054.      The comptroller    of public accounts
deposits the funds received by him in a special fund to be
known as the criminal justice planning       fund.   L    art.
102.055.

     In light of the amendments resulting from Senate Bill
1204 and Senate Bill 1085, you ask the following questions:

           1. Whether these amendments    in S.B. No.
        1085 and S.B. No. 1204 can be reconciled with
        Texas Attorney General Opinion No. J'M-917 or
        whether they also are unconstitutional   since
        they purport to punish someone as if they
        were finally convicted without regard to
        whether they are ultimately convicted of an
        offense?

           2. Are court costs due at the time the
        judgment is entered as Article 6701d, Sec.
        143A, as amended by S.B. No. 1204 requires?

           3. Whether the administrative cost auth-
        orized in Article  6701d can be reconciled
        with Texas Attorney   General Opinion   No.
        JM-917?

     Attorney General .Opinion JM-917    (1988) addressed  the
constitutionality   of section    lC(e) of article      6701h,
V.T.C.S.    That statute permitted   courts to charge a ten
dollar fee before dismissing   a criminal charge for failure
to maintain   proof of financial responsibility,     when the
charge was based solely on failure to produce suitable
documentary proof of financial responsibility when requested
by a police    officer and when adequate proof could be
produced at a subsequent hearing.    It was noted that while
proof of financial responsibility must be furnished to an
officer who requests it, failure to furnish the evidence    is




                               .p. 5908
    Honorable Bob Bullock - Page 5   (JM-1124)


,


    not a crime. The operator was in effect paying a fee for
    dismissal of a charge based on a violation     that is non-
    existent, i.e.,  failure to have in his possession proof of
    financial responsibility.  It was concluded that a criminal
    defendant innocent of a charge may not be required to pay a
    fee in order to have a charge dismissed.

         Subsection (a) of section 143A, article 6701d, affords
    the court an option after advising the defendant     of his
    right to complete   a driving safety course.     Under  sub-
    section (a)(l) the court is given the discretion to defer
    proceedings for 90 days without the necessity of a plea
    being entered by the defendant or entry of judgment. Nor is
    there any requirement  that the defendant make application
    for deferral to complete a driving course.

         Under subsection (a) (2), the court defers proceedings
    for 90 days upon the defendant's oral or written request to
    take a driving safety course. The request must be submitted
    at or before the time the defendant enters a plea of guilty
    or no contest, and the court enters judgment on the plea.
    In addition the defendant   must satisfy the requirements of
    subsections (2)(C), (D), (E), and   (F). We assume that the
    judgment reflects a conviction for the offense since a plea
    of guilty (without the necessity of supporting evidence)   is
    sufficient to support a conviction in a misdemeanor offense.
    Code Crim. Proc. art. 27.14(a). A plea of guilty and waiver
    of jury in a misdemeanor case for which the maximum punish-
    ment is by fine only may be made by mail to the court
    and will support a conviction.    LB, 27.14(b); see Attorney
    General Opinion JM-876 (1988).

         Unlike the procedure   denounced  in Attorney    General
    Opinion JW-971, we presume the charged violation in your
    scenario has the underpinning of an existing offense.

         The procedure   followed under V.T.C.S. article   6701d,
    section 143A(a)(2), appears to be a form of probation.    The
    defendant enters a plea of guilty or no contest and judgment
    is entered thereon.1    Imposition  of judgment  is deferred
    only upon application of the defendant.   Removal of judgment




         1. In deferred    adjudication  proceedings the court
    defers further proceedings following the plea and does not
    enter an adjudication     of guilt.   See Attorney  General
    Opinion JM-377 (1985).




                                     p. 5909
Honorable Bob Bullock - Page 6 (JM-1124)




and dismissal  of the charge results upon proof of the
defendant's successful completion of the driving course.

     In E,
        m                  709 S.W.2d  744 (Tex. App. - San
Antonio   1986,    pet. ;ef'd)    the court    rejected   the
defendant's claimed violatio;s    of due process   and equal
protection of the law resulting from a statutory requirement
(article 42.12B, section 6b(c) of the code of Criminal
Procedure) that he serve 120 days in prison as a condition
of probation on a conviction for involuntary manslaughter by
reason of intoxication.   Probation in &one2 had been granted
under article 42.12 of     the Code of Criminal    Procedure.
Section 3d(c) of article 42.12 provides that upon successful
completion of the terms of probation,    the court dismisses
the charge      and discharges   the defendant.     Following
dismissal of the charge the defendant is not deemed to have
been convicted of an offense.

     Attorney General Opinion JM-898    (1988) addressed   the
matter of a justice of the peace requiring community service
under article   45.54 of the Code of Criminal      Procedure..
Article 45.54 provides that upon conviction of a defendant
of a misdemeanor (other than a violation under 67016) pun-
ishable by fine only, the justice may suspend the imposition
of the fine and defer final disposition of the case for a
period not to exceed 180 days. In Attorney General Opinion
JM-898, it was concluded that the defendant may be required
to perform reasonable  community service as a condition     of
deferral under section (2)(d) of article 45.54, authorizing
the justice to defer disposition of the defendant's case on
compliance with reasonable conditions other than payment    of
the fine. At the conclusion    of the deferral period,     the
justice has authority under the provisions of article    45.54
to dismiss the complaint.

     The fact that a defendant under subsection (a)(2) of
section 143A of article 6701d may be required to success-
fully complete a driving course (pursuant to his applica-
tion) and pay court costs upon entry of judgment following
his plea does not in our opinion render these statutory
requirements  unconstitutional  because the judgment   may
ultimately be removed and the cause dismissed.

      The more   difficult question arises under subsection
 (a)(l) where the court is given the discretion of deferring
proceedings    for 90 days without    the necessity   of the
.defendant entering a plea, a judgment being entered, or the
defendant making application for deferral in order to take a
driving course. A statutory prerequisite to the assessment
of costs in question is the conviction     of the defendant.




                               p. 5910
Honorable Bob Bullock - Page 7    (JM-1124)




Under Senate Bill 1085 the defendant is considered to have
been convicted in a case if "(1) a sentence is imposed;  (2)
the defendant receives probation or deferred adjudication:
or (3) the court defers final disnosition of      he cas
Acts 1989, 71st Leg., ch. 347, 5 2, at 1317t (empha%i
added).

     Under Senate Bill 1085 a person may be considered
convicted where the "court defers final disposition of the
case." Id, If applied to subsection (a)(l) of section 143A
of article 6701d, the result would be that a judgment
reflecting guilt of the defendant would be entered without
the defendant  having received any semblance of a trial.
Instead, under subsection (a).(l) the .court merely    defers
proceedings to allow the defendant     time to complete     a
driving safety course. No plea is required nor is there any
adjudication of guilt or entry of judgment. We believe that
to allow court costs to be assessed upon the basis of a
statutory assumption  of guilt of a defendant under these
circumstances  is to deprive the defendant      of property
without due process of law.     Such a procedure    allows a
conviction to be entered against a defendant without   having
afforded the defendant his constitutional right to a trial.

     In your second question you ask if court costs are due
at the time judgment is entered in a section 143A, article
6701d, proceeding.    Our treatment   of your first question
reflects that imposition of court costs predicated         on a
conviction without a plea or judgment is unconstitutional
under subsection (a)(l). In Attorney General Opinion JM-526
(1986), it was concluded that court costs are due at the
time the judgment of conviction     is entered in an article
45.54 proceeding   rather than at the end of the deferral
period when the complaint may be dismissed. &        at 5; see
Attorney General Opinion JM-905 (1988).      We  conclude   that
under a subsection (a)(2) proceeding court costs are due at
the time "the court enters judgment on the person's         plea
of No Contest or Guilty . . . .'I       V.T.C.S.   art.   6701d,
5 143A(s)(l)(B) (as amended by Senate Bill 1204, Acts 1989,
71st Leg., ch. 1105, 5 2, at.4579).

     In your final question you ask whether the administra-
tive costs authorized in article 6701d may be reconciled
with Attorney General Opinion JN-917 (1988). Subsection (c)
of section 143A of article  6701d provides "[t]he court may
require the person requesting a driving safety course to pay
a fee set by the court at an amount that does not exceed
$10 including any special fees authorized by statute or
municipal ordinance to cover the cost of administering  this
section."  Funds collected  are deposited  in the municipal




                                 p. 5911
Honorable Bob Bullock - Page 8    (JM-1124)




treasury if the trial is in municipal     court and in      the
county treasury if trial is in the justice court. L

     Attorney General Opinion JM-441 (1986) concluded 'that
section 143A, article 6701d, did not allow the assessment of
an administrative fee against the defendant or against the
providers of  driving courses without statutory    authoriaa-
tion, The opinion stated "[i]t is well-established that a
fee may not be charged unless the fee is provided for by
law." Id. at 1. The legislature appears to have responded
to Attorney General Opinion JW-441 by amending the statute
in Senate Bill 515, Acts 1987, 70th Leg., ch. 1059, B 1, at
3591, effective September 1, 1987, by providing for the fee
set forth in subsection (c) for the costs of administering
this section. The guesti-Jn of the constitutionality of the
administrative fee was neither raised nor addressed         in
Attorney General Opinion JW-441.

     The distinction between  a subsection (a)(2) procedure
and the one denounced in Attorney General Opinion JW-917 has
been discussed in your first question. We conclude that the
statutorily imposed fee for administering a section     143A
procedure is an appropriate cost under the form of probation
granted pursuant to subsection (a)(z).2

      As heretofore noted no plea is made by the defendant
nor is there any adjudication     of guilt under subsection
(a) (1).  Whether  the  amount  assessed  is denominated   as
"court cc&z" or "administrative fee," it is a governmentally
imposed cost incident to the filing of a charged violation
of the law. In Attorney    General Opinion JM-880 (1988), at
3, it was stated:

          In Texas, costs in misdemeanor         criminal
       cases are assessed as part of the punishment.
       B oarte Carson,     159 S.W.2d 126 (Tex. Crim.
       App. 1942); uarte       IQ&I& 46 S.W. 828    (Tex.
       Crim. App. 1898).     See also Attorney    General
       Opinion JM-443 (1986).     &    United States v
       Palmer,  809  .F.2d    1504   (11th  Cir.    1987;




      2. Without knowing what other "special fees authorized
by statute or municipal   ordinance" may be authorized    to
cover costs of this section, we are unable to pass judgment
on the constitutionality of this provision    in subsection
(Cl *




                                 p. 5912
    Honorable Bob Bullock T Page 9 (JM-1124)


i


           (holding imposition of costs as punishment      to
           be constitutional).

         Since the defendant in a subsection (a)(l) proceeding
    has never been adjudicated to be guilty of any offense, we
    conclude that the imposition of administrative costs against
    the defendant in such a procedure   possesses the same con-
    stitutional infirmities. found in Attorney  General Opinion
    JM-917.

                           SUMMARY
               Senate Bill 1204 and Senate Bill 1085 of
            the 71st Legislature are not violative of any
            constitutional provision in permitting    costs
            to be assessed    against a defendant     in a
            sp;zctfi    =(t)(2),  section 143A,     article
                     . . .    proceeding that permits the
            court'to defer'imposition of judgment pending
            successful completion of a defensive    driving
            course. The assessment'of     court costs in a
            ;E;ctio;    T(;)sl),  section. 143A,    article
                       . . . .,   proceeding    where   the
            defendant is adjudged to be guilty without
            having entered a plea to the charge or the
            court having made an adjudication of guilt
            deprives a defendant   of due process of law
            and his constitutional     right to a trial.
            Court costs are due at the time of entry of
            judgment following the defendant's plea and
            entry of judgment    in a subsection
            proceeding.    A   fee not     to exceed(a)::!)
            authorized by subsection (c) of section 143A,
            article 6701d, V.T.C.S., is not violative    of
            any constitutional provision in a subsection
            (a)(2) proceeding.    The imposition of such
            fee in a subsection      (a)(l) proceeding   is
            unconstitutional.




                                       J b
                                       Very truly yo r ,

                                           AA
                                       JIM     MATTOX
                                       Attorney General of Texas

    MARY KELLER
    First Assistant Attorney General

    LOU MCCREARY
    Executive Assistant Attorney General



                                     p. 5913
Honorable Bob.Bullock - Page 10   (JM-1124)




JUDGE ZOLLIE STEAKLJZY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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