                                      The Attorney           General        of Texas
                                                         June 13. 1984
  JIM MATTOX
  Attorney General


  Supreme Court Sulldlng            Honorable Joe Warner Bell                     Opinion lo. JM-165
  P. 0. Box 12543
  Auatln. TX. 78711.2548
                                    Trinity County Attorney
  51214752501                       P. 0. Box 878                                 Re: Whether a defendant whose
  Telex 9101874.13B7                Groveton, Texas    75845                      adjudication was deferred under
  Telecopier 5121475.0266                                                         section 3d of article   42.13 of
                                                                                  the Code of Criminal Procedure
  714 Jackson, Sulto 7W                                                           may be compelled to pay a fine
  Dall#& TX. 75202.4500                                                           after his period of probation
  2141742-0844                                                                    has expired

                                    Dear Hr. Bell:
  4B24 Alberll Ave.. suite 150
  El P~aoo.TX. 78805.2783
  9lC5633.3484                            You have asked:

                                                    If a defendant whose edjudlcaiion   was deferred
c’-  V Texacl. Salts 700                        upon a plea of guilty pursuant to article      42.13.
   .mslon, TX. 77002.3111
                                                section    3d of the Code of Criminal Procedure,
  713/223-5555
                                                fails    to pay his     fine,  once his   period    of
                                                supervision   has expired, may a capias pro fine or
  508 Broadway. Sulle 312                       writ of execution   be issued to enforce payment?
  Lubbock. TX. 78401.3479
  5OBi747.5238
                                    Assuming that no proceedings     to revoke probation  or determine guilt
                                    have been initiated.  we conclude that a defendant whose adjudication
  4309 N. Tenth. Suite B            was deferred under article   42.13, section 3d. V.T.C.S.,  is not subject
  t&Allen, TX. 7850%1885            to an execution for collection    of a fine imposed as a condition of his
  5121882-4547                      probation o&e his probationary period has expired.

  200 Main Plaza, Suite 400               Section 3d of article  42.13 of         the   Code of   Criminal    Procedure
  San Antonlo, TX. 782052707        provides in pertinent part as follows:
  512l22541Sl
                                                    (a)    [Wlhen in its opinion the beet Interest of
      An Equal Oppoftunlly/
                                                society     and the defendant       will   be served,   the
      Alflrmative Action Employer               court may, after receiving         a plea of guilty or a
                                                plea of nolo contendere, hearing the evidence, and
                                                finding     that it     substantiates     the defendant’s
                                                guilt,   defer further proceedings       without entering
                                                an adjudication      of guilt and place the defendant
                                                on probation       for   a period      as the court     may
                                                prescribe,     not to exceed the maximum period of
                                                imprisonment prescribed       for the offense    for which
                                                the defendant ie charged.         The court may impose a
                                                fine applicable       to the offense     and require    any
                                                reasonable      terms end conditions         of probation,



                                                                         p. 726
Ronorable   Joe Warner Bel.1 - Page 2            (JM-165)




            including  any of the conditions      enumerated            in
            Sections 6. 6a, and 6c of this Article   . . . .

                  .   .   .   .

                (c)  On expiration    of a probationary      period
            imposed under Subsection    (a) of this section,      if
            the court has not proceeded       to adjudication     of
            guilt,   the court shall    dismiss  the proceedings
            against     the   defendant    and    discharge      the
            defendant , . . .

      Article     43.03       provides   that

                (a)  If a defendant is sentenced to pay a fine
            or costs or both and he defaults    in payment, the
            court may order     him imprisoned   in jail  until
            discharged as provided by law . . . .

Article    42.02 defines a sentence as “that part of the judgment . . .
that orders       that the punishment be carried             into execution     in the
manner prescribed       by law.”      Article    42.01 defines     a judgment as the
court’s    written declaration       of conviction      or acquittal.    Section 2 of
article     42.13 defines       probation     to include     the suspension     of the
imposition       of   sentence.       Likewise,      section    3d(a)   quoted    above
describes      probation     as being        based    on the postponement        of   an
adjudication      of guilt.     The imposition      of a fine under section 3d(a).
therefore,      Is as a condition           of probation,     not as a part of a
sentence.      See also 16(8) (providing           that payment of a fine may be
made on condition       of probation).         Section 3d(c) unequivocally       states
that a defendant must be discharged and the proceedings                  dismissed if
the court has not “proceeded              to adjudication      of guilt”   before    the
“expiration      of a probationary       period imposed under Subsection         (a) of
this    section . . . .‘I        Black’s     Law Dictionary      39 (5th ed.       1979)
defines adjudication        as “[t]he    formal giving or pronouncing a judgment
or decree in a cause; also the judgment given.”                 Compare Burton, Legal
Thesaurus 11 (1980).

      Hence, by the explicit     terms of section   3d, a defendant whose
probationary   period under article   42.13 has expired without institu-
tion of proceedings   to revoke probation or determine guilt may not be
subjected    to an execution   for collection    of a fine   imposed as a
condition of probation.

                                          SUMMARY

                   A defendant whose adjudication     was postponed
                pursuant to section   3d of article    42.13 of the
                Code of Criminal Procedure after a plea of guilty
                and who fails to pay a fine imposed as a condition
                of probation  may not be subject    to a capias pro



                                                p. 727
   ,    .

Eooorable   Joe Wsrner Bell    - Pege 3 (J?4-165)




            fine or other writ of execution to enforce payment
            of such fine once his period of supervision       has
            expired,  if proceedings   to revoke probation     or
            determine guilt have not slready been instituted.


                                              -Jzh
                                                          MATTOX
                                               Attorney    General of Texas

TOMGREEN
First Assistant   Attorney    General

DAVID R. RICHARDS
Executive Assistant Attorney      General

Prepared by Colin Carl
Assistant Attorney General

APPROVED:
OPINIONCOMMITTEE

Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton




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