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                        The Attorney                General of Texas
                                            March    14,   1978
JOHN   L. HILL
Attorney General


                   Honorable Bill Stubblefield                    Opinion No. H- 113 5
                   County Attorney
                   Williamson County                              Re: Payment of fees in cases of
                   Georgetown, Texas 78626                        deferred proceedings under art.
                                                                  4476-15, sec. 4.12, the Controlled
                                                                  Substances Act.

                   Dear Mr. Stubblefield:

                          You have requested our opinion concerning the collection of certain
                   fees in cases where a court has deferred proceedings and placed a defendant
                   upon probation pursuant to the Controlled Substances Act, article 4476-15,
                   section 4.12, V.T.C.S., which provides that probation may be granted “without
                   entering a judgment of guilt,” and that discharge and dismissal “shall not be
                   deemed a conviction for burooses of disaualifications  or disabilities imoosed
                   by jaw for conviction of a &me.” -See Ritchie v. State, 542 S.W.2d 422’cTex.
                   Crim. App. 1976).

                           You ask whether a defendant who has been      discharged and against whom
                   proceedings are eventually dismissed pursuant to      section 4.12 may be assessed
                   the following court costs: county attorney’s fee       (Code Crim. Proc. art. 1060,
                    trial fee (Code Crim. Proc. art. 53.061, sheriff’s     fees (Code Crim. Proc. art.
                   53.01), and county clerk’s fees (Code Crim. Proc.     art. 1064).

                          The county attorney’s fee, the trial fee and the sheriff’s fees are
                   expressly authorized in cases where there is a “conviction.” Liability for the
                   clerk’s fee is not expressly made referable to conviction by the language of
                   article 1064, Code Crim. Proc., but the statute is a 1925 codification of an
                   1876 act which also embraced the county attorney’s fee, and the trial fee, as
                   well as the sheriff’s fees, and which provided:

                               In all cases where any person shall be presented or
                               indicted by the grand jury, and shalt be discharged
                               from such presentment      or indictment,   neither the
                               Clerks nor the Sheriffs shall charge Fees for the same,
                               but if the party or parties so presented or indicted
                               shall be convicted, the Clerk or Sheriff shall charge
                               him, her or them, with all the fees accruing thereon.




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Honorable Bill Stubblefield     -   Page 2     (H-1135)


Acts 1676, 15th Leg., ch. 164, § 24, at 284, 294. The 1925 codification merely
reenacted the previous laws on the subject which appeared in the 1911,1895 and 1879
codifications of the 1876 legislation.  We think this provision remains applicable and
that fees are not collectible under article 1064, Code Crim. Proc., if the defendant
is acquitted.  Attorney General Opinion O-6093 (1944) so held. See Adams v. State,
92 Tex. Crim. 26, 241 S.W. 164 (Tex. Crim. App. 1922); 53 Tex. Judd, Statutes S 189
at 288.

       It has been held by both the,Supreme Court of Texas and the Texas Court of
Criminal Appeals that courts may grant probation only “after conviction,” in
accordance      with article 4, section 11A of the Texas Constitution.       State v.
Thurmond, 516 S.W.2d 119 (Tex. 1974); Burson v. State, 511 S.W.2d,948 (Tex. Crim.
‘1974);       Ex arte Giles 502 S.W.2d 774 (Tex. Crim. App. 1973). See also Lee v.
State, 516 S.W.2d
             -.      151 Tex. Cram. App. 1974); Hill v. State, 92 Tex. Crim. 312, 243
S.W. 982 (Tex. Crim. App. 1922). However, the Court of Criminal Appeals very
recently held in George v. State, cause # 56,169 (Tex. Crim. App., filed Nov. 16,
1977), that a person placed on probation after the entry of an order granting a
conditional discharge under section 4.12 of the Controlled Substances Act has been
neither convicted nor found guilty. See State v. Blackwell, 500 S.W.2d 97 (Tex.
Crim. App. 1973); Ex parte Muncy, 725.       Crim. 541, 163 S.W. 29 (Tex. Crim. App.
1914); Baker v. State, 70 Tex. Crim. 618, 158 S.W. 998 (Tex. Crim. App. 1913).

       In light of the George decision, we advise that a defendant placed on
probation after the deferral of proceedings pursuant to section 4.12 of article 4476-
15, V.T.C.S., the Controlled Substances Act, is not “convicted” for the purpose of
the fee statutes, and is not liable for the fees assessed by articles 53.01, 53.06, 1061,
and 1064, Code Crim. Proc.

                                     SUMMARY

            A defendant      placed on probation after the deferral of
            proceedings     pursuant to section 4.12 of article 4476-15,
            V.T.C.S., the    Controlled Substances Act, is not “convicted”
            for purposes    of the fee statutes, and is not liable for the
            fees assessed    by articles 53.01, 53.06, 1061, and 1064, Code
            Crim. Proc.




                                              Attorney General of Texas




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 Honorable Bill Stubblefield   -   Page 3    (H-1135)




C. ROBERT HEATH, Chairman
Opinion Committee

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