                                   The Attorney              General        of Texas
                                                       July 22,     1986
JIM MAlTOX
Attorney General



Supreme Cowl BulldIn              Hr. S. Kent Gibson                    opinion    no. a-526
P. 0. Box 12545
Aurtln. TX. ?0711- 2549
                                  Wood County Auditor
51214752591                       Courthouea                            Kc:     Suspension of fines and deferrals
T4I.x 9101874-1357                Quitman, Texas    75783               of   final    disposition  under  article
T&copler    5121475.0295                                                45.54 of the Code of Criminal Procedure

714 Jackson. Sull. 700            Dear Mr. Gibson:
oallas. TX. 752024505
214l742.9944                             You hava inquired   about the construction             and application   of
                                  article   45.54 of the Code of Criminal Procedure.            Article 45.54 of the
                                  Code of Criminal Procedure provides:
4824 AIberIa Ave.. Suite 199
El Paw. TX. 799052793
QlY533.3464                                      (1)   Upon conviction     of the defendant     of   a
                                             misdemeanor punishable by fine only, other than a
r                                            misdemeanor described     by Section 143A, Uniform Act
     Tex4s. Suite 700                        regulating   Traffic  oo Eighways, as amended (Article
Houston, TX. 77002.3111
713/223-5855
                                             6701d, V@:rnon’s Texas Civil Statutes),     the justice
                                             may suspt:rrd the imposition     of the fine and defer
                                             final di~lpositioo   of the case for a period not to
800 Broadway. Suits 312                      exceed l@O days.
Lubbock. TX. 79401.3479
5ow747.5235
                                                (2)  Euring said deferral            period,    the    justice
                                             may require the defendant to:
4309 N. Tenth, Suite B
McAllen. TX. 78501-1555                          (a)  gost a bond in the amount of                    the   fine
512m82.4547
                                             assessed to secure paymeat of the fine;

    200 MaIn Plea, Suite 4w                      (b)   pay    restitution     to     the victim   of          the
    San Antonio. TX. 79205.2797              offense    in    an mount       not    to exceed   the         fine
    51212254191                              assessed;

    An Equal Opporlunlty/
                                                 (c)   submit to professional         counseling;     and
    AffirmalIve Acilon Employel
                                                 (d)   comply with aoy other reasonable condition,
                                             other than payment of all or part of the fine
                                             assessed.

                                                (3)   At the conclusion   of the deferral    period,
                                             if  the Defendant presents     satisfactory    evidence
                                             that he k,a,s complied vith the requirements imposed,
                                             the justke    may dismiss the complaint.     Otherwise,




                                                              p. 2416
                                                                                    .

                                                                                        I

Mr. S. Kent Gibson - Page 2      (Jn-US)




           the justice   may reduce the fine assessed or may
           then impose the f:inc assessed.  If the complaint is
           dismissed,  a special expense not to exceed $50 may
           be imposed.

              (4)  Records relating    to a complaint dismissed
           as provided by this article     may oot be expunged
           under Article  55.31 of this code. (Emphasis added).

The legislature     enacted this statute     to enable a “justice”    to make a
form of probation available      to defendants convicted of offenses with a
maximum punishment of a fine not to exceed $200, i.e.             Class C mis-
demeanors.     See Acts 1981, 67th Leg., ch. 318, II, crt94          eff.   Sept.
1, 1981.    Penal Code 612.23.     This office   has previously   characterized
article   45.54 as a form of “probation”       although the statute does not
use the term.      See Attorwy     General Opinion JM-307 (1985);       sea also
Baker 6 Bubany, xobation        :Eor Class C Misdemeanors:      To Fine or Not
to Fine is Now the Question, ” 22 So. Tcx. L.J. 249 (1981).             Prior to
that time, there was oo legislative         authorization   to allov probation
lo non-traffic    misdemeanor offenses    puoishable by fine only.       See Code
Grim. Proc.     art.   42.13;  see also Attorney       General Opinion-%1128
(1978).

       It is well-settled     :Lav in this   state   that the relationship
between the probationer     and the state is contractual    in nature.    See
Vanderburg v. State, 681 !i.W.2d 713, 719 (Tex. App. - Houston (14th
Dist.]                    see also Bradley v. State, 564 S.W.2d 727 (Tex.
         1984, oo writ); --
Grim. App. 1978) (en baoc) . Therefore,       it is reasonable to conclude
that the form of “probation”      authorized  by article  45.54 may only be
applicable    when the defendant has agreed to the conditions          of the
deferral   period.

      In regard to section  1 of article       45.54 of    the Code of Criminal
Procedure you have asked t’w following        questions:

               1. Can a county judge or          a municipal    judge
            take action under this article?

                2.   Can a county court or justice      court suspend
            fines    and defer   final   disposition      of  traffic
            offeoses    (such ~1 speeding)    described    in article
            6701d. V.T.C.S.,    under article    45.54 of the Code
            of Criminal Procedure?

               3.   Can a county or justice    court suspend fines
            and defer final disposition     of offenses  described
            in article  66871’. V.T.C.S.,  under article  45.54 of
            the Code of Criad,nal Procedure?




                                    p. 2417
Hr. S. Kent Gibson - Psge 3        (Jx-526)




               4.    If    of feoscre under 6687b or        6601d are
           allowed      fine    suspension  sod deferral     of final
           disposition       uoder article    45.54,  is the $12.50
           Compensation to Vietime of Crime Fund cost to be
           collected      st the time the complaint      is dismissed
           aod the special          expeose fee of $50.00 imposed?
           Also,     is    the $:I.00 arrest      fee  alloved   under
           article     53.01 to be collectsd?

In answer to the first     question , we conclude that section 1 of article
45.54 of the Code of Criminal Procedure applies          to a municipal judge
as well as a justice    of the peace.    This provisioo    was enacted as part
of Senate Bill No. 914 by tire Sixty-seventh        Legislature.     Acts 1981,
67th Leg.,    ch. 318, at 891,. Ths Bill Analysis         prepared for Senate
Bill   No. 914 stated      that :the Code of Criminal Procedure         did not
provide   for deferred    prosecution  of Class C misdemeanors lo justice
and corporation    courts,   ani. the proposed legislation     was intended to
give this power to these courts.        Senate Comm. on Jurisprudence,      Bill
Analysis   for S.B. No. 914, 67th Leg. (1981).        Moreover, the title      to
Senate Bill No. 914 states :Ln part:

               An Act . . . urthorising         the   court to impose
            conditions  and t,a’ dismiss       the    complaint. . . .
            (Emphasis added).

Act6 1981, 67th Leg.,      ch. :3ia. at 894.      The bill   aoalysis   and the
title     to the bill    indicat:e   the legislature’s     understanding   that
“justice”    refers to a justice   of the peace and a municipal judge.

       The question       of whether a county judge may take action under
article    45.54 should be discussed            in light   of the Texas Court of
Criminal Appeal’s         en bane decision      in Kutner v. Russell,    658 S.W.2d
585 (Tex. Grim. App. 1983).              IO Kutner, supra, the court held that
when a person stands charged with a misdemeoor traffic                   offense   in
which he may invoke section           143A of article    6701d of V.T.C.S.,    and he
has a choice between going to trial                or taking driving    courses.   he
caonot invoke the statute (1’11.       appeal in county court to take defensive
driving     courses     after   chsx)siog    to go to trial       and having been
convicted.       Id. at 586.       The court reasoned that since the county
court is oot me          court” that the defendant was charged lo, the county
court had no statutory         poww to grant defensive driving under section
143A(a)(2)      of article      67Cld of V.T.C.S.        The court ignored Judge
Onion’s argument that article            V, section 16 of the Texas Constitution
and article      44.17 of the Code of Crimioal Procedure requires that the
appellate     jurisdiction     of the county court requires       that these cases
should     be “the      same as     if    the prosecution     has been originally
commenced in that court.”            -Id. at 589-91; see also Code Grim. Proc.
art. 44.17.




                                    p. 2418
Mr. S. Kent Gibson       - Page 4     (JX-526)




      Likevise,  ve believe     that the Texas Court of Criminal Appeals
vi11 take a similar     positioo    in the construction    of srticla   45.54.
Kutner, supports the conclrwion that the county court has no statutory
pover to invoke article      45.54 vheo a defendant has been originally
charged sod coovicted     lo TVmunicipal or justics      court because,    like
aectioo   143A of article      6701d, the legislature     did oot expressly
provide for this purpose or coostructioo.          Accordingly.   ve conclude
that only a municipal judge! and a justice     of the peats may take actioo
under article   45.54 of the Code of Criminal Procedurs.

        Your secood question addresses the application                    of article     45.54
of    the Code of Crtiloal             Procedure      to traffic      of feoses     (such as
speeding) described        in artzlcle 6701d. V.T.C.S.            Article    45.54 does not
apply to these offenses.              .Article 45.54 expressly          excludes     from its
provisions      misdemeanor traffic         offenses     described by section          143A of
 article    6701d. V.T.C.S.,       Uniform     Act   Replating      Traffic    on  Bighvays.
-See Code Grim. Proc. art. 45.54, Il.                  Section 143A of article          6701d,
V.T.C.S..      applies    to all miisdemeaoor traffic            offenses     defined under
 article    6701d. except the ,offense of reckless                driving under section
 51, vhich is punishable           8.8 a Class B misdemeanor vithio               the juris-
 diction    of the county court.           V.T.C.S.     art. 6701d. S143A; Code Grim.
 Proc.    art.   4.07    (jurisdic,tion       of county court over Class B mia-
 demeanors).      Article     45.5Gi does not apply to Class B misdemeanors.
 The offense      of speeding       la defined       lo article      6701d. V.T.C.S.        See   ?
 V.T.C.S. art. 6701d. 5166. Accordingly,                 a justice,    or municipal co=
 may not suspend fines and defer final               dispoaitioo     of speeding offenses
 described     in article    6701d. V.T.C.S..         uoder article      45.54 of the Code
 of Criminal Procedure.           Ci. Kutner ;. Russell,            658 S.W.2d 585 (Tex.
 Grim. App. 1983); Attorney;general              Opinion IN-428 (1982).

        Your third question ,ralates to the application       of article   45.54
 to offenses     defined   under article     6687b. V.T.C.S.    These off eases
 relate    to driver’s   licencle requirements within the state of Texas.
 Since article    45.54 appli~w to all Class C misdemeanors except those
 specifically    excluded.    ve conclude that a conviction     of any Class C
 misdemeanor offense        defined   by article    6687b, V.T.C.S.,     may be
 deferred under article      45.54.    See V.T.C.S. art. 6687b. 513 (guilty of
 first   offense of failure     to display driver’s  liceose is a Class C mis-
 demeanor).

       Because we have concluded that article        45.54 applies   to Class C
 misdemeanor offenses      under article      6687b. V.T.C.S.,     ve vi11 now
 address your fourth questloo.       The first    part of this question asks
 vhether a $12.50 fee may ‘DIGcollected       for the Compensation to Victims
 of Crime Fund at the time the complaint is dismissed and the special
 expense fee is collected.    In 1985, the Sixty-ninth Legislature       amended
 section 14(b) of article    113;09-1, V.T.C.S.,   to change the amount of the
 fee collected  in Class C misdemeanor cases from $12.50 to $3.00.           See
 Acts 1985, 69th Leg., ch. 589, Il. at 4507, eff. Sept. 1, 1985.             The                  I




                                          p. 2419
Mr.   S.   Kent     Cibron - Page !i       (JX-526)




                                 t,lrtlclo
Cr imeVic timsCo mp c nsa tioArc .         8309-l et seq., creates  the
Compensation to Victims of Crime Fund to be used by the Industrial
Accident Board for the payment of compensation to claimants under the
act and other expanses in administering    the a c t.See V.T.C.S.  art.
8309-l.  J14(a).  Section 10(b) of the act provides byrt:

                       (b)  A person shall         pay . . . $3 as a court
                  cost, on conviction       of a misdemeanor punishable by
                  a fine of not more than $200, other than a mis-
                  demeanor     that     regulates      pedestrians      and      the
                  parking of motor vehicles.           The court shall assess
                  and make a reasonable         effort    to collect    the cost
                  due under this section          vhether or not any other
                  court cost is aiwessed or collected.               . . .     If a
                  parson    is    grant,sd deferred        adjudication       under
                  Article    . . . 41;. 54, Code of Criminal Procedure,
                   1965, as amended. at the time the court grants
                  deferred    adjudic,a.tion.    the person shall pay as a
                  court cost the mount that the person vould have
                  otherwise     been iequired       to pay under this           sub-
                   section had the adjudication          not been deferred and
                  had the person-been            finally     convicted     of    the
                   offense.    (Emphasis added).

 V.T.C.S.    art.   8309-1,     114(b).  A person     must be convicted   before
 article    45.54 of the Code of Criminal Procedure is applicable           in a
 particular     case and the :.rmguage used by the legislature        in section
 14(b) requires      us to conN::Lude that a defendant is to pay the $3.00
 court cost at the time WE conviction             rather than at the time the
 complaint is dismissed under section         3 of article    45.54.  Of course,
 when the complaint is dismissed,         a special   expense fee not to exceed
 $50 may be imposed.        -See Code Grim. Proc. art. 45.54, 9(3).
        Pour final  question in regard to the collection      of  fees is
 whether the $3.00 arrest fee allowed under article     53.01 of the Code
 of Criminal Procedure is to be collected    at the time the complaint is
 dismissed.     We are of c:he opinion    that the $3.00 fee should be
 collected   upon conviction rather than at the time the complaint     is
 dismissed.

         Article   53.01 of the Code of Criminal Procedure allows a $3.00
  fee to be taxed by a pea-e officer          against the defendant “on convic-
  tion” for his services        for executing each warrant of arrest  or capias,
  or making an arrest without a varrant.             See Code Grim. Proc.    art.
  53.01,    91; see also Attorney        General Opinion MW-561 (1982).    Since
  article    53.01 specificall:?    provides that the $3.00 fee should be taxed
  “on conviction”      of the dEfendant, ve believe      that the fee should be
  collected     at the time the defendant is convicted of the offense rather




                                              p. 2420
Xr.   S. Kent Gibson    - Page 6    (311426)




than at the time the complaint iJ dismissed           under section     3 of article
45.54 of the Coda of Crimloal Procedure.

      You also   ask the fo:.lowlng three questions   in regard to the
deferral  period   under sact,lon 2 of article   45.54 of the Coda of
Criminal Procedure:

                 1. Can the pxovisiona of the bond mentioned in
             section  2(a) of article  45.34 include the condi-
             tlons of the deferral period?

                 2.    Can the ccurt   require   a cash bond?

                3. What is the liability     of         the county,    if
             someone is workinS as a condition          of the deferral
             and is injured vhi.18 working?

       As quoted above, secl:ion 2(a) of article             45.54 of the Code of
Criminal    Procedure      authorizes    a judicial     officer     to require     the
defendant to poet bond in the amount of the fine assessed                   to secure
payment of the fine.          Sea Coda Crba. Proc. art.         45.54,   52(a).    The
judicial    officer     may only require      the defendant      to post this bond
during    the    “deferred     period.”     Id.   In response        to your first
question,    the    court  may  nclt requircha     defendant     to  comply  with any
other condition       of the defc!rral,   as a condition    of the bond.      The bond
is only one of the three conditions          under section 2. -Id.

        We also believe    that tlhe legislature     did not intend In section 2
 of article    45.54 to autho:::lze the court to require a cash bond.                 As
 indicated    above, section     :! authorizes    a judicial    officer    to require
 the defendant to post bond “in the amount of the fine assessed . . .
 to secure payment of the Cine.”              See Code Grim. Proc. art.          45.54,
 12(a).     (Emphasis added).        It is z       opinion   that the legislature
 would have specif led “cash” bond if it intended that the defendant
 could post cash only to secure payment of the fine.                 The courts have
 construed provisions       authorizing    the posting of bonds to allow surety
 bonds as well as cash boneis.          See Ex Parte Rodriguez,        583 S.W.2d 792
  (Tax. Grim. App. 1979); tea also             Attorney    General Opinion m-363
  (1985).     Moreover,    section    2(d)   which specifically        prohibits     the
 defendant from paying all or part of the fine assessed,                lends support
 to the construction      that the legislature      did not intend the posting or
 paying of money to insure that the fine                  is paid or that other
 conditions    of deferral    are met.

       Article    45.54 also a,uthorizes a judicial   officer to require a
 convicted     defendant   to obtain   employment as a condition      of the
 deferral     so long as tha! condition      of employment is reasonable.
 See Code Grim. Proc. art. 45.54,       12(d).   Thus, if the defendant is
 Eured      on the job while vorking       under these circumstances,    the




                                       p. 2421
Mr. S. Kant Gibson - Page 7        (JU-526)




employer, not the county, may be liable          for the injury.
Zurich     Gsnaral Accident     41 Liabilit      Insurance     Co. v.?+AFi%E
Laundry Cf.. 63 S.W.Zd 263 i”rax. Civ.‘App.          - Fort Worth 1933, no writ)
(smployaa a liability     la founded on some legal duty).              But, if the
county la the employer, the county may be liable             for personal injuries
of the defendant under the same conditions             it would be liable     to any
other employee.     Compare V.T.C.S.        art. 6252-19,      93 (repealed   1985),
with Coda Grim. Proc. art. 42.12, fad(f)           (condition    imposed on govam-
mental units to limit       liability    for felony      probationers’    employment
injuries).

      Finally,   you ask the following     three questions:

                 1. If     the    dsefendant   serves    the  deferral
            period,    the    cm)laint     is dismissed.     a special
            expense fee is iuposed, and the defendant fails           to
            pay the special        tcxpensc fee, how may the court
            collect   the special expense fee?

                2.  Upon convLt:tion after   a trial    in justice
            court,  does the court have discretion        to place
            someone on defel,ral    under article    45.54 of the
            Coda of    Criminal   Procedure?     Can deferral     be
            appealed by the defendant to county court?       If so.
            under what circumstances?

                3.   If a municipal court case is appealed to
            county court,    &a  defendant is found guilty    and
            placed on deferra:l,   and a special  expanse fee is
            assessed,   who is eatitlad   to the special  expense
            fee, the county or the city?

      As to the first    question,   the Jp8CiJl    expense fee is not a
condition  of deferral but :Ls an added expanse vhich may be imposed by
the court after the complaint is dismissed.       Compare Attorney General
Opinion JM-165 (1984).    If ,the defendant fails   to pay this additional
costs the court may issue A writ of execution to enforce payment. -Sea
Code Grim. Proc. art. 43.07.

       In regard to the f1rc.t part of your second question,         we believe
that based on our previous        discussion   that the court must have the
consent of the defendant        before 3      probation    may be imposed, the
court has the discretion       to place    someone on deferral    under article
45.54 of the Code of Crim:tnal Procedure.          Section 1 of article      45.54
specifically    provides that the justice     vx    . . . defer the final dis-
position     of  the case. . ,, .”      Code Grim. Proc.       art.   45.54,     51
(Emphasis added).       The te:na “may” generally      creates  a discretionary
and not a mandatory function.          See Matter of Estate of Minnick. 653
S.W.2d 503 (Tex.       Civ. App. - Amarillo        1983, no writ);     see also




                                      p. 2422
                                                                                                    .   .

Ur. S. Kent Gibson        - Page 8      (Jkf-526)




Attorney     General Opinion 5’11-319 (1985) ; Texas Legislative      Council
Drafting Manual, Taxaa Legislative      Council,  Austin,    Texas, 1985, at
7-37.   (“‘may” used to denote a privilege    or discretionary    povar) . Of
course,    this discretion   may not be exercised  if the defendant elects
to pay the fine     imposed.

      The second part of the second queatioa relates to the right of a
defendant to appeal a defsrral                 condition     imposed by a justice           to a
county court.       It    la   clear     that   a   defendant    has  the    right   of  appeal
for a reviw      of his trial          a,nd conviction      at the time he is placed on
probation.      See Pitzpatric!r         v. State,     458   S.W.2d 924 (Tex. Grim. App.
1970);    sea -also      Coda C&l.          Proc.     art.   42.12,     98(b);    art.   44.17.
Rowever, the legislature            d:td not address,       in article     45.54, the matter
of appeal from, or right I:O review, a finding by the trial                            court of
noncompliance,      a refusal        to dismiss the complaint,            and a decision       to
impose the deferred          fine.      We are of the opinion that the legislature
did not intend to provide the right to appeal.                       In every circumstance
where there was a right to appeal, there has been an explicit                              right
provided by statute.            Sea C,ode Grim. Proc. art. 42.12, 18(b).                 On the
other hand, where the lcgis:latura                did not intend a right to appeal in
a psrticular       circumstance:,          there has not been a statutory                  right
provided.      See Jacolos         v. Hoss, 682 S.W.2d 364 (Tex. App. - Dallas
 1984, no wrm;        sea also EzIntyra v. State, 581 S.W.2d 413, 417 (Tex.
Grim. App. 1979).          Accordingly,       YJ    conclude that a defendant does not
have the right         to appeal a deferral              condition     imposed pursuant to
article    45.54 of the Code XC Criminal Procedure.

       Finally,   you ask if a municipal case is appealed to county court,
and the defendant         is found guilty        and placed on deferral,     which
governmental      entity,     the city or the county,        is entitled   to the
special expense fee assessed by the county court.              The fee may only be
imposed if the complaint           1s dismissed.    Code Grim. Proc. art. 45.54,
13.     Since we have concluded above that a county judge cannot invoke
article     45.54, &,         dismiss the complaint,     the city is entitled   to
the fee.      Cf. Code Grim. Proc. art. 45.11 (fees should be deposited         in
the munici~        treasury).

                                         SUMMARY

                       The   legislature,      in    using     the  term
              “jukifa”     in section     1 of article     45.54 of the
              Code of Criminc~l Procedure         intended to include
              justices   of the peace and municipal judges.

                 2.   Article  45.54  of  the Code of Criminal
              Procedure does n,ot apply to traffic  offenses  (such
              as speeding) defined under article   6701d. V.T.C.S.




                                            p. 2423
     Xr. S. Kant Gibson - Page 9    W-526)




                   3. Article   4!,.54 of  the Coda of Criminal
               procedure does apply to conviction    of a Clasa C
               misdemeanor defineid under article 6687b. V.T.C.S.

                   4.   A $3.00 coqeneation     to victim   fee may be
               collected    from a ilafandant convicted of an offense
               defined under article     6687b. V.T.C.S.   The fee may
               be collected     at the time of conviction.

                   5. The $3.00 wrest     fee which is alloved to be
               collected    under article    53.01 of the Coda of
               Criminal Procedure! is to be collected    at the time
               of conviction     rather than at the time the com-
               plaint    is dismiswd    under article  45.54 of the
               Coda of Criminal lkocedura.

                   6. A court may not require a defendant,     as a
               condition    of a bond under section   2 of article
               45.54,    to comply vlth any other condition of the
               deferral.      The bond is only one of the three
               conditions    under rwction 2.

P                  7. A court wunot require a cash bond under
               section 2 of artic:le 45.54 of the Coda of Criminal
               Procedure.

                   8.  If a convicted    defendant   Is    required    to
               obtain employment ,vith the county, as       a condition
               of his deferral  ualer article   45.54 of    the Code of
               Criminal Procedure.   the county may be      held liable
               for personal injuries   if the defendant      is injured
               on the job.

                   9.  Since the wpecial expense fee authorized by
               section 3 of artic!le 45.54 of the Code of Criminal
               Procedure is an added expense which may be imposed
               by the court after the complaint is dismissed,   the
               court may issue B vrit of execution under article
               43.07 of the Code of Criminal Procedure to enforce
               payment of the fee.

                   10. A court    has   discretion      to    place a
               defendant on defwral   under article      45.54 of the
               Code of Criminal Procedure.

                    11. The   legislature     did    not  provide     a
                defendant the statutory   right to appeal a deferral
,-              condition imposei; by a trial     court under article




                                      p. 2424
Ilr. S. Kent Gibson - Page 10    UH-526)




          45.54 of    the Coda of Criminal Procedura.             The
          defendant   does not have this right.

             12. The      judicial    official    dismissing   a
          complaint under section    3 of article   45.34 of the
          Coda of Criminal procedure is the only official
          who Eay ,.,JpOSJ a J?ecial  axpansa fJJ.




                                                        MATTOX
                                             Attorney   General   of Texas

JACK HIGRTOWRR
First Assistant Attorney   General

MARYRELLRR
Executive Assistant   Attorney   General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tony Guillory
Assistant Attorney General




                                   p. 2425
