                                            August 23, 1999



The Honorable Tim Curry                             Opinion No. JC-0098
Tarrant County Criminal District Attorney
Justice Center                                      Re: Whether county commissioners court may
401 West Belknap                                    authorize the collection of fees and costs pursuant
Fort Worth, Texas 76196-0201                        to section 51.702(b) of the Government Code
                                                    (RQ-0034)


Dear Mr. Curry:

         Courts ofthis state have held that penalties imposed in cases involving state criminal statutes
must be uniform statewide or else they are unconstitutional as a denial of due process and equal
protection.    Relying on the decisions of these courts, this office concluded in Attorney General
Opinion DM-123 that a portion of section 51.702 of the Government                   Code, allowing a
commissioners court to authorize the collection of additional fees and costs in certain statutory
county courts, violates the constitutional principles of due process and equal protection. A state
district court, however, has ruled that section 5 1.702 is constitutional. Faced with these conflicting
decisions, you ask us to determine whether a county commissioners court constitutionally            may
authorize fees and costs pursuant to section 51.702. We conclude that a county may authorize
collection of the fees and costs in accordance with the decision of the district court, but we caution
that the practice may be declared unconstitutional by a different district court or by an appellate
court.

        Section 5 1.702 of the Government Code authorizes a statutory county court to collect fees
and costs in certain court cases. TEX. GOV’T CODE ANN. 5 51.702 (Vernon 1998). Subsection (a)
allows a $40 tiling fee in each civil case, and subsection (b) allows a $15 court cost on conviction
of any criminal offense:

                     (a) Except as provided by Subsection(g), in addition to all other
                 fees authorized or required by other law, the clerk of a statutory
                county court shall collect a $40 tiling fee in each civil case tiled in
                the court to be used for court-related purposes for the support of the
                judiciary.

                      (b) In addition to other court costs, a person shall pay $15 as a
                  court cost on conviction of any criminal offense in a statutory county
                  court, including cases in which probation or deferred adjudication is
                  granted.
The Honorable Tim Curry - Page 2                         (X-0098)




Id. 5 5 1.702(a)-(b). The fees and costs may be collected only in a county whose commissioners
court has adopted a resolution authorizing them. Id. 5 5 1.702(f).

        Section 5 1.702 was first adopted in 1991 as part of a bill extensively amending the law
governing statutory county courts. See Act ofMay 27,1991,72d Leg., R.S., ch. 746,199l Tex. Gen.
Laws 2620; see also Ector County v. Hohann, 901 S.W.2d 687,689 (Tex. App.-El Paso 1995, no
writ) (explaining background and purpose of section 5 1.702 and related statutes). The bill included
a scheme for raising the salaries of county-court-at-law judges through the collection of the fees and
costs setout insection51.702.    S~~TEX.GOV”~CODEA~~.        $5 25.0015-.0016   (VemonSupp.     1999).
The fees are sent to the state Comptroller for disbursement to counties for raising judges’ salaries.
Id. Only those counties whose commissioners courts resolve to adopt the fees may participate in the
salary financing  scheme.   Id.

         Attorney General Opinion DM- 123 addressed the constitutionality ofthe court costs imposed
in criminal cases by section 5 1.702; subsection (b). The opinion reviewed an earlier version of
section 5 1.702, but for purposes of your question, the changes in the statute since DM-123 was
issued are inconsequential.     As the opinion explained, the costs are not authorized under section
5 1.702 in a county that has no statutory county court.’ Nor may the costs be imposed in a county
that chooses not to authorize them. “Thus, if any county elects to participate in the scheme under
that section, such county will        necessarily impose, for every conviction, a punishment which is
greater, by $10.00 [now $lS.OO], than a conviction for the same offense in a county which either
is ineligible to participate in the statutory scheme or elects not to do so.” Tex. Att’y Gen. Op. No.
DM-123 (1992) at 2. Citing prior attorney general opinions and decisions of the Texas Court of
Criminal Appeals and lower courts of appeals, the Attorney General concluded that subsection (b)
of section 5 1.702 violated the constitutional principles of equal protection and due process because
it allowed different costs to be assessed in different counties for the same state penal offense. Id. at
 3-4.

        Attorney General Opinion DM-123 also concluded that a county could not avoid the
unconstitutionality  of subsection (b) by only adopting fees under subsection (a). “The statute
requires adoption of the costs and fees as apackage, and there is no provision for adopting the fees
of subsection (a) in the absence of a simultaneous adoption of the costs of subsection (b).” Id. at 5.
Thus, the opinion concluded, if a county commissioners court resolves to participate in the salary
financing scheme, it must collect both civil fees under subsection (a) and criminal costs under
subsection (b). Id.




          ‘This year, the Seventy-sixth Legislature added section 5 1.703 to the Government Code,          allowing the same
fees and cysts to be collected in ceaain county courts, and section 5 1.704, allowing the fees and costs   in certain statutory
probate courts. See Act of May 30, 1999,76th Leg., R.S., 55 7.10 (H.B. 1123) (to be codified at            TEX. GOV’T CODE
ANN. $5 5 1.703.,704); Act of May 30, 1999,76th Leg., RX, g 1 .l 1 (H.B. 3211) (to be codified at          TEX. GOV’T CODE
ANN. $ 51.703).
The Honorable Tim Curry - Page 3               (JC-0098)




         Courts have invalidated suchcosts. See, e.g., Exparte Carson, 159 S.W.2d 126 (Tex. Grim.
App. 1942); Exparfe Ferguson, 132 S.W.2d 408 (Tex. Crim. App. 1939); Ex parte Sizemore, 8
S.W.2d 134 (Tex. Grim. App. 1928); ExparteMann, 46 S.W. 828 (Tex. Grim. App. 1898);Memet
v. State, 642 S.W.2d 518 (Tex. App.-Houston [ 14th Dist.] 1982, pet ref d). For example, inExparte
Carson, the Texas Court of Criminal Appeals held invalid a statute that provided for payment of
$1 .OOas costs in criminal cases in those counties having eight or more district courts and three or
more county courts. Exparte Carson, 159 S.W.2d at 129. And in Memet v. State, a court of appeals
found invalid a statute that provided that the offense of operating without a permit a sexually
oriented commercial enterprise was a Class C misdemeanor in any city with a comprehensive zoning
ordinance, but a Class B misdemeanor in any city without such an ordinance. Memet v. State, 642
S.W.2d at 525-26.

       In Attorney General Opinion DM-123, we found these cases controlling            of section 51.702:

               Under the test announced in Carson, Memet, and the other cited
               cases, section 5 1.702(b) is clearly invalid. It automatically imposes,
               in those counties which have adopted the statutory scheme of section
               5 1.702, a punishment, for conviction of the same offense, which is
               greater than that imposed in those counties which have not adopted
               the statutory scheme, whether by choice or because the scheme is
               inapplicable to them. Consequently, section 51.702(b) must be
               deemed to be constitutionally infirm on both due process and equal
               protection grounds.

Tex. Att’y Gen. Op. No. DM-123 (1992) at 4; accord, Tex. Att’y Gen. Op. No. DM-427 (1996) at
7; see also Tex. Att’y Gen. Op. Nos. JM-1120 (1989) at 2; JM-880 (1988) at 3.

         Attorney General Opinion DM-123 correctly stated and applied the law established by the
Texas Court of Criminal Appeals and lower courts of appeals on the constitutionality of criminal
penalty statutes. However, approximately two months after Attorney General Opinion DM- 123 was
issued, a declaratory judgment was issued in In re Dorsey Trapp, No. 139,568-B (78th Dist. Ct.,
Wichita County, Tex. Aug. 24, 1992). The court’s judgment declared section 5 1.702 constitutional
in its entirety and subsections (a) and (b) separately enforceable:

                         It is the judgment of the Court that Section 51.702 of the
                Government       Code, V.T.C.A. is, in its entirety, a valid and
                constitutional enactment of the Legislature of the State of Texas.

                        It is further the judgment of the Court that subsection   (a) of
                Section 51.702 is constitutional as written and as applied.

                        It is further the judgment of the Court that the subsections    of
                Section 5 1.702 are duly severable.
The Honorable Tim Curry - Page 4                (JC-0098)




                       It is further the judgment of the Court that subsection   (b) of
               Section 51.702 is cons&u~onal as written and as applied.

                       It is further the judgment of the Court that subsection    (f) of
               Section 5 1.702 is constitutional as written and applied.

                        The Court finds pursuant to the application of the Code
               Construction Act, Section 311.032, that as above indicated, that
               subsection (a) of Section 5 1,702 is severable from the remainder of
               such section and that said subsection is enforceable sua sponte.

Id. at l-2. The declaratory judgment   was not appealed to a higher court

         This office and at least one appellate court have addressed issues relating to the collection
of the fees and costs under section 51.702, see Ecfor County Y. Hollman, 901 S.W.2d 687 (Tex.
App.-El Paso 1995, no writ), Tex. Att’y Gen. LO-94-048, but no other opinion and no other court
that we know of has addressed the statute’s constitutionality.       Following the Wichita County
declaratory judgment, the Office of the Comptroller indicated in an internal memorandum that it
would resume collecting and disbursing funds generated by the costs. See Memorandum               from
Robert Daniels to Richard Craig, Office of the Comptroller (Aug. 25, 1992) (on file with Opinion
Committee). We assume that counties are indeed collecting costs and fees under section 5 1.702.

         The opinion of this office in Attorney General Opinion DM-123 is constrained by the
contrary decision of the Wichita County district court. However, we note that the Wichita County
court did not expressly overrule DM-123 or otherwise cite authority for its conclusions.
Accordingly, the scope of the issues actually litigated and resolved in the declaratory action is
unclear. Further, without such clarity, it is impossible to evaluate the trial court’s determination in
light of the existing judicial precedent from our state’s appellate courts. As we have noted, in our
opinion, the decisions in Carson, Memet, and others suggest that collecting fees as “extras” so that
some criminal defendants in the state pay more than others for the same convictions is
unconstitutional.   Consequently, although a trial court has authorized the collection of fees and costs
under section 5 1.702, a county opting to collect such fees and costs runs a substantial risk that such
practice will be declared unconstitutional by a different district court or by an appellate court.
The Honorable   Tim Curry - Page 5              (X-0098)




                                         SUMMARY

                         A county commissioners court may authorize the collection
                of fees and costs by statutory county courts under section 5 1.702 of
                the Government Code in accordance with the decision of a state
                district court. However, collection of the fees may be declared
                unconstitutional by a different district court or by an appellate court.




                                                Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Barbara Griffin
Assistant Attorney General - Opinion Committee
