                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                               October 8,2003



Ms. K&ten Klein                                    Opinion No. GA-O 114
Guadalupe County Auditor
307 West Court, Suite 205                          Re: Whether a community supervision and corrections
Seguin, Texas 78155                                department may assess a participant in a pretrial
                                                   intervention program fees under both article 102 .O12 of
                                                   the Code of Criminal Procedure and section 76.015(c)
                                                   of the Government Code (RQ-0058-GA)
Dear Ms. Klein:

       You ask whether the Guadalupe County Community            Supervision  and Corrections
Department may assess a participant in a pretrial intervention program fees under both article
102.012 of the Code of Criminal Procedure and section 76.015(c) of the Government Code.’

         Chapter 76 of the Government Code requires the district judges trying criminal cases in each
judicial district to establish a community supervision and corrections department, see TEX. GOV’T
CODE ANN. 5 76.002(a)(l) (V emon 1998), which must employ personnel “as necessary to conduct
presentence investigations, supervise and rehabilitate defendants placed on community supervision,
enforce the conditions of community supervision, and staff community corrections facilities,” id. ?J
76.002(a)(2). For purposes of chapter 76, community supervision is

                 the placement of a defendant by a court under a continuum of
                 programs and sanctions, with conditions imposed by the court for a
                 specified period during which:

                          (A) criminal proceedings are deferred without an adjudication
                 of guilt; or

                         @) a sentence of imprisonment or confinement, imprisonment
                 and fine, or confinement and fine, is probated and the imposition of
                 sentence is suspended in whole or in part.

TEX. CODE CFUM.PROC.ANN. art. 42.12,§ 2 (Vernon Supp. 2003) (emphasis added); TEX. GOV’T
CODE ANN. 8 76.001(2) (V emon 1998) (“In this chapter . . . ‘[c] ommunity supervision’ has the



         ‘Letter from Kristen Klein, CPA, Guadalupe County Auditor, to Opinion Committee,    Office of the Attorney
General, at 2 (May 11,2003) (on file with Opinion Committee) [hereinafter Request Letter].
Ms. Kristen Klein - Page 2                                (GA-01 14)




meaning assigned by Section 2, Article 42.12, Code of Criminal Procedure.“); see also TEX. CODE
CRIM.PROC.ANN. art. 42.12,s 11 (Vernon Supp. 2003) (authorizing court to determine community
supervision conditions and outlining basic conditions).

         Section 76.011 of the Government Code also permits a department to “operate programs for
the supervision and rehabilitation of persons in pretrial intervention programs. . . . A person in a
pretrial intervention program may be supervised for a period not to exceed one year.” TEX. GOV’T
CODE ANN. 5 76.01 l(a) (Vernon 1998). Chapter 76 does not define the term “pretrial intervention
program.” Although several other Texas statutes refer to pretrial intervention or pretrial diversion,*
none defines the concept. However, pretrial intervention does not involve “the placement of a
defendant by a court under a continuum of programs and sanctions, with conditions imposed by the
court,” as community supervision is defined. See TEX. CODE CRIM. PROC. ANN. art. 42.12, 4 2
(Vernon Supp. 2003) (defining “community supervision”). Rather, pretrial intervention involves a
written agreement entered before trial between the defendant and the prosecutor, pursuant to which
the defendant agrees to perform conditions imposed by the prosecutor:

                   The State agrees to dismiss the case if the defendant performs certain
                   conditions within a specified period of time. Both the State and the
                   defendant request that the trial court continue the present trial setting
                   to a certain date in the future to give the defendant time to comply
                   with the agreed conditions. The agreement is then presented to the
                   trial court for its approval. If the trial court does not approve the
                   agreement, the case proceeds to trial as scheduled on the docket. If
                   the trial court approves the agreement, it grants the joint request for
                   continuance and resets the trial to a certain date in the future. On that
                   date, the defendant must appear before the trial court.            If the
                   defendant has complied with the conditions of the agreement, the trial
                   court grants the State’s motion to dismiss the pending criminal
                   charges. If the defendant has not complied with the conditions of the
                   agreement, the case proceeds to trial as scheduled.

Fisher v. State; 832 S.W.2d 641,643-44 (Tex. App.-Corpus Christi 1992, no pet.). Thus, although
a department is authorized to provide both community supervision and pretrial intervention services,
community supervision and pretrial intervention involve different classes of people.




           *See, e.g., TEX. GOV’T CODEANN. $0 54.745 (Vernon 1998) (establishing a court filing fee for motion required
to participate in a pretrial diversion program or the functional equivalent that may be operated in El Paso County by the
West Texas Regional Adult Probation Department or a county or district attorney of El Paso County), 76.01 l(a)
(community supervision and corrections “department may operate programs for the supervision and rehabilitation of
persons inpretrial interventionprograms”)      (emphasis added);TEx. CODECRIM.PROC.ANN. arts. 60.051(c)(3) (Vernon
2003) (“Information in the computerized criminal history system relating to a prosecution must include . . . for a rejected
case, the date of rejection, offense code, and incident number, and whether the rejection is a result of a successfulpretrial
diversion program.“) (emphasis added), 102.012 (pretrial intervention program fee).
Ms. Kristen Klein - Page 3                             (GA-01 14)




         Article 102.012 of the Code of Criminal Procedure provides that “[a] person in a pretrial
intervention program established under Section 76.011, Govemrnent Code, may be assessed a fee
that equals the actual cost to a community supervision and corrections department, not to exceed
$500, for supervision of the defendant by the department or programs provided to the defendant by
the department as part of the pretrial intervention program.” TEX. CODE CRIM. PROC. ANN. art.
102.012 (Vernon 2003). Article 103.004(d) of the Code of Criminal Procedure provides that “[tlhe
custodian of the county treasury shall deposit money received from fees imposed under Article
102.012 in the special fund of the county treasury for the community supervision and corrections
department serving the county.” Id. art. 103.004(d).3

        In addition, chapter 76 generally authorizes a department to collect money and fees. Section
76.0 15 provides that

                           (a) A department may collect money from an individual as
                  ordered by a court served by the department regardless of whether the
                  individual is under the department’s supervision.

                           (b) A department that collects money under this section shall
                  promptly transfer the money collected to the appropriate county or
                  state officer.

                           (c) A department may assess a reasonable administrative fee
                  of not less than $25 and not more than $40 per month on an
                  individual who participates in a department program or receives
                  department services and who is not paying a monthly fee under
                  Section 19, Article 42.12, Code of Criminal Procedure.

TEX. GOV’T CODE ANN. 5 76.015 (Vernon                1998).

        You ask whether the Guadalupe County Community Supervision                 and Corrections
Department may assess a pretrial intervention program participant both a fee for “the actual cost [of
providing services] not to exceed $500” under article 102.012 of the Code of Criminal Procedure
and “a reasonable administrative fee of not less than $25 and not more than $40 per month” under
section 76.015(c) of the Government Code. See Request Letter, supra note 1, at 2. The Guadalupe




          3The department may use the money in the fund “only for the same purposes for which state aid may be used
under” chapter 76. See TEX. GOV’T CODEANN. 5 76.011 (b) (Vernon 1998) (“The department may use money deposited
in the special fund of the county treasury for the department under Article 103.004(b), Code of Criminal Procedure.“).
Ms. Kristen Klein - Page 4                           (GA-01 14)




County Attorney has advised you that the Department may not charge the latter fee,4 but you disagree
with this advice?

         We conclude that a department may assess a participant in a pretrial intervention program
only the article 102.012 fee. No statute authorizes a court to impose a fee on a pretrial intervention
program participant. Instead, article 102.012 permits a department to charge such a fee. See TEX.
CODE CRIM. PROC.ANN. art. 102.012 (Vernon 2003) (department may assess a fee “that equals the
actual cost to a community supervision and corrections department, not to exceed $500, for
supervision of the defendant by the department or programs provided to the defendant by the
department as part of the pretrial intervention program”). Given that the fee must be based on the
actual cost to a department “for supervision of the defendant . . . or programs provided to the
defendant,” id., the legislature clearly designed the fee to allow a department to recoup the cost of
providing pretrial intervention services, not to generate revenue. Moreover, in limiting the fee to
$500, the legislature has clearly provided that a person who participates in a pretrial intervention
program may not be assessed more than $500. See id.

          Section 76.015(c) of the Government Code authorizes a department to assess a reasonable
monthly administrative fee on an individual “who participates in a department program or receives
department services and who is not paying a monthly fee” under section 19 of article 42.12 of the
Code of Criminal Procedure. See TEX. GOV’T CODE ANN. 9 76.015(c) (Vernon 1998). Although
a participant in a pretrial intervention program may receive “department services,” we conclude that
section 76.015(c) does not apply to such a person.

         First, section 76.015(c) refers to section 19 of article 42.12, which authorizes a judge granting
community supervision to fix a monthly fee from $25 to $60 to be paid to the court by the defendant
during the community supervision period, deposited in the county treasury, and used under chapter
76. See TEX. CODE CRIM. PROC. ANN. art. 42.12,s 19(a)-(b) (V emon Supp. 2003). This reference
indicates that the legislature intended section 76.015(c) to apply to defendants who have been
ordered to receive department services by a court. A participant in a pretrial intervention program
has not been ordered to receive services by a court but rather receives services under an agreement
with a prosecutor.

         Moreover, article 102.012 of the Code of Criminal Procedure authorizes a department to
assess a fee equal to its actual costs for supervising or providing programs to a defendant. See id.
art. 102.012 (Vernon 2003). Actual costs include the department’s administrative costs. Section
76.015(c), in authorizing a “reasonable administrative fee,” TEX. GOV’T CODE ANN. fj 76.015(c)
(Vernon 1998), appears to permit a department to assess a fee for its administrative costs. A
participant in a pretrial intervention program is liable for administrative costs under article 102.012,
and it is not reasonable to construe section 76.015(c) to require such a person to pay those costs



         4See Letter from Robert E. Etlinger, Assistant County Attorney, Guadalupe   County, to Kristen Klein, CPA,
Guadalupe County Auditor (Feb. 26,2003) (on tile with Opinion Committee).

         ‘See Letter from Kristen Klein, CPA, Guadalupe County Auditor, to Nancy S. Fuller,         Chair, Opinion
Committee, Office of the Attorney General (May 22, 2003) (on file with Opinion Committee).
Ms. Kristen Klein - Page 5                               (GA-01 14)




twice. See id. 99 311.021(3) (“In enacting a statute, it is presumed that . . . a just and reasonable
result is intended.“), 3 11.023(l), (5) (in construing a statute, a court may consider the “object sought
to be obtained” and the “consequences of a particular construction”).

         Finally, to the extent section 76.015(c) is ambiguous with respect to whether it per-r-nits a
department to assess pretrial intervention program participants, its legislative history also supports
the conclusion that it does not. See id. 9 3 11.023(2)-(3) (in construing a statute, a court may consider
“circumstances under which the statute was enacted” and “legislative history”). The legislature first
enacted a capped pretrial intervention program fee in 1983.6 It did not enact section 76.015(c) of the
Government Code until 1997.7 Prior to section 76.015(c)‘s enactment, courts could impose fees for
community supervision but departments lacked authority to collect fees from program participants
other than those receiving pretrial intervention services. The legislature appears to have intended
section 76.015(c) to fill that gap by permitting departments to collect fees from participants receiving
other services who have not already been ordered to pay a fee by a court. There is no indication in
the legislative history that the legislature intended this new provision to apply to participants in
pretrial intervention programs, who were already subject to the special capped fee.’ Had the
legislature intended the new fee to increase the fees paid by pretrial intervention program
participants, it would have amended article 102.012 to eliminate the cap.

         In sum, section 76.015(c) does not apply to a person who participates in a pretrial
intervention program and does not permit a department to assess such a person a monthly fee. A
department may assess a person who participates in a pretrial intervention program only the article
102.012 fee.


            % 1983, the legislature enacted article 42.12 1, section 10(a) of the Code of Criminal Procedure, which
provided that “[tlhe district judge or judges may authorize district personnel to operate programs for the supervision and
rehabilitation of persons in pretrial diversion programs. Persons in pretrial diversion programs may be supervised for
a period not to exceed 12 months and may be assessed a supervisory fee or a program fee, or both, provided the
maximum fees do not exceed a total of $200.00.” Act of May 26, 1983,68th Leg., R.S., ch. 762, $ 1, 1983 Tex. Gen.
Laws 4572,4572.       In 1989, the legislature repealed article 42.12 1 and enacted article 42.13 1. See Act of May 28, 1989,
71stLeg., R.S., ch. 785, $5 3.02,3.10,1989Tex.        Gen. Laws 3471,3483-86,349l.       Section 11 ofarticle42.131 provided
that “[pIersons in pretrial intervention programs . . . may be assessed a supervisory fee, a program fee, or both fees,
provided that the total amount of the fees does not exceed $500.” Id. at 3486. In 1990, the legislature transferred the
fee from article 42.13 1 to article 102.012 and amended the statutory language to authorize “a fee that equals the, actual
cost to a community supervision and corrections department, not to exceed $500, for supervision of the defendant. . .
as part of the pretrial intervention program.” Act of June 7,1990,71 st Leg., 6th C.S., ch. 25, § 20, 1990 Tex. Gen. Laws
108, 126. The legislature transferred the remainder of article 42.13 1 to chapter 76 of the Government Code in 1995.
See Act of April 25, 1995, 74th Leg., R.S., ch. 76, $0 7.11-7.12, 1995 Tex. Gen. Laws 458, 580-584.

          ‘In 1995, the legislature added section 15 to article 42.13 1 of the Code of Criminal Procedure, to authorize a
department in a county with a population of 2.8 million or more to “assess a reasonable administrative         fee on an
individual who participates in a department program or received department services and who is not paying a monthly
feeunder Section 19, Article42.12.”    See Act ofMay 12, 1995,74thLeg., R.S., ch. 217,§ 1,1995 Tex. Gen. Laws 1959,
1959. In 1997, the legislature repealed that provision and adopted section 76.015 of the Government Code, which
limited the fee to an amount between $25 and $40 and authorized all departments to assess the fee. See Act of May 26,
1997,75th Leg., R.S., ch. 983, 9 1, 1997 Tex. Gen. Laws 3054, 3054.

       *See HOUSECOMM.ON COUNTYAFFAIRS,BILL ANALYSIS, Tex. H.B. 2265,74th                       Leg., R.S. (1995); SENATE
COMM. ON CRIMINALJUSTICE, BILL ANALYSIS, Tex. H.B. 2634,75th Leg., R.S. (1997).
Ms. Kristen Klein   - Page 6                  (GA-01 14)




                                       SUMMARY

                       A community supervision and corrections department may
               assess a participant in a pretrial intervention program a fee for “the
               actual cost” of providing services not to exceed $500 under article
                102.012 of the Code of Criminal Procedure. A department may not
               assess such a participant “a reasonable administrative fee of not less
               than $25 and not more than $40 per month” under section 76.015(c)
               of the Government Code.

                                              Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee
