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DAN MORALES
 AI-TORN’
       GENERAL
         EY                               January IO. 1996


     The Honorable David Brabhsm                    OpinionNo. DM-372
     Gregg County CriminalDistrict Attorney
     101 Bast h&hvin street, suite 333              Rez Whetheramunicipalcouttofrewtd
     Longvkw, Texas 75601                           must impose wurt costs upon a juvenile
                                                    offender who participates in a “teen wurt”
                                                    program (RQ-7’51)

     Dear Mr. Brabhanu

            You ask whether a municipal wurt of record must impose, upon a juvenile
     offender who participates in a “teen court” program pursuam to Code of Criminsl
     Procedure (‘todew) article 45.55, any court costs other than the ten-dollar adnGstmtive
     fee that the wurt may impose under subsection (e) of that article. We believe that nothing
     in article 45.55 negates a court’s obligation or discretion to impose court costs that are
     chargeable by other law, except that for offenses committed on or a&r
     Sqtember 1.1995, the court is not rewired to charge any other wurt wsts, but it may do
     so.

             You contend that the provision in subsection (e) for a maximumten-dollar fee that
     a justice or municipal court may rewire of a person who requests a teen court progrsm
     operates to exclude the imposition of any other wurt costs. The first sentence of
     subsection (e) reads as follows: “The justice or municipalwurt may require a person who
     requests a teen court program to pay a fee-not to exceed SJO that is set by the court to
     cover the wsts of administeting this article.” The legishture thus expressed its intent that
     the ten-dollar fee is to cover the administmtivecosts of a teen court program under article
     45.55, not to cover other wurt costs. Article 45.55 is silent as to the imposition of other
     wlut costs.

            You ibrther contend that this silence indicates legislative intent to disallow the
     imposition of any other wsts of wurt on 8 person who requests a teen court program
     under article 45.55 because code article 45.54(l) exprdy providw for the defendant’s
     “ppent of ail court costs” as a condition to the wmt’s authority to defbr prwwdings
     and grant probation under that article.’ Your tea.wning is that “[i]fthe Legislature had
The Honorable David Brabham - Page 2               (DM-372)




intended to assess wurt costs under Art. 45.55, it surely could have stated that
rquirement clearly, as it did in Art. 45.54(l).”

       We do not believe this reasoning is correct. Costs in criminal cases generally are
not wkcted until after they are assessed as pert of the punishment,see Expcate Carson,
159 S.W.Zd 126, 129 (Tex. Crbn. App. 1942); see generu& Code Grim. Proc. ch. 102
(wntaining various provisions for costs payable by convicted defendant), so the purpose
of the addition of the aforementioned language to article 45.54 is to speci@ that costs
under that article must be paid bcfbre or ut the same time (LFthe wurt grants def” and
probation. &e Attomey General Opinion Jh4-526 (1986) et 5. Thus, the presence of an
express provision for payment of costs in cuticle45.54 has an independent signiticanccthat
makes it unnecusary to make (Lstmined infkrenw that the legislature intended that costs
not be chargeable in other articles where such a provision is absent.

        A recent amendment to cuticle45.55 makes clear that the legislature did not intend
to disallow the imposition of other costs of court on a person who requests 8 teen court
program under article 45.55. The Seventy-fourth Legislature added a new subsection (g)
to article 45.55, see Act ofMay 27, 1995. 74th Leg., RS., ch. 598, 0 1, 1995 Tex. Sess.
Law Serv. 3436, 3436, which applies only to offenses wmmitted on or after
September 1. 1995. id. 8 2, at 3436, the eiTectivedate of the statute, id. 8 3. at 3436.
This subsection (gy provides as follows: “A justice or municipal court may exempt 8
defendant for whom proceed@ are defared under this article Tom the requirement to
pay a court cost or fee that is imposed by another statute.” Id. 8 1. at 3436. This
provision would be meaningless if other costs were not chargeable. Therefore, for
offbnses wmmitted on or a&r September 1,1995, the court is nof requiredto chargeany
other court costs, but it mcrydo so.

       Fiily, you question whether the imposition of any court costs under article 45.55
would be wnstitutional in light of Attorney General Opiion JM-1124. In that opinion we
held that another statutory provision, section 2 of the Seventy-6rst Legislature’s Senate
Bii 1085, Act of May 28, 1989, 71st Leg.. RS., ch. 347, 1989 Tar. Gen. Laws 1316.




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TheHonorab1eDavidBnbha.m - Page 3              (DM-372)




1317, was unconstitutional es applied to V.T.C.S. article 6701d, section 143A(s)(l),
which grants discretion to rxcourt to defer criminalproceedings without the necessity of a
plea, a judgment, or an application for deferral by the defwdant. Attorney General
Opiion M-1124 (1989) at 6-7. In that opinion we explainedthe wnstitutional problem
with Senate Bii 1085 as follows:

                  Under Senate Bii 1085 a person may be considered convicted
            where the “court defers tinal disposition of the case.” [Act of
            May 28, 1989,flst Leg., RS.. ch. 347. Q2, 1989 Tex. Gen. Laws.
             1316, 1317.1 If applied to subsection (a)(l) ofsection 143A of
            lrticle 6701d. the result would be that a judgment reflecting guilt of
            the defwdant would be entered without the defendant having
            received any semblance of a trial. Instead, under subsection (a)(l)
            the court merely defers procwdiigs to allow the defendant time to
            complete a driving s&y 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 cbumutwces is to deprive the
            defendant of propaty without due process of law. Such a procedure
            allows a wtiction to be entered against a defbndant without having
            afforded the defendant his wnstitutioneJ right to a trial.

Id. at 7.

        Article 45.55 is easily distinguished from the staMe held unwnstitutional in
Attorney General Opiion M-1 124. Subsection (a) of the article permits deferral end
probation only if the defendant, among other thin&, “pleads nolo wntendere or guilty to
the offense in open court with the defendant’s parent, guardii or managing conservator
present,” Code Crim. Proc. art. 45.55(a)(2), end “presents to the wurt an oral or written
request to attend a teen court program,” id. art. 45.55(a)(3). Thus the defendant may
choose to go to trial; the defkndant is not forced to suffer punishmentin the form of court
costs without a trial, as was the cdse with the statutes analyzed in Attorney General
Opiion IM-1124. Micle 45.55 therefore does not deprive the def’endantof property
without due process of law.




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The Honorable David Brabham - Page 4       (DM-372)




                                 SUMMARY
              Nothing in tuticle 45.55 of the Code of Criminal Procedure
         negates 8 court’s obli@on or discretion to impose court costs that
         8re chmgeableby other baw,except that for offenses wmmitted on or
         8&r September 1, 1995, the court is not rquired to charge any
         other court costs, but it may do so.




                                                 DAN MORALES
                                                 Attorney General of Texas
JORGE VBGA
Fii Assistlnt Attorney Generll

SARAH J. SHIRLEY
Ch8ir, opinion Committee

Prepared by James B. Pinson
Assistant Attorney Geneml




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