                            ATTORNEY GENERAL OF TEXAS
                                       GREG       ABBOTT


                                              June 3, 2014



Mr. David Slayton                                    Opinion No. GA-1063
Administrative Director
Office of Court Administration                       Re: Assessment and distribution of criminal
205 West 14th Street, Suite 600                      court costs (RQ-1171-GA)
Austin, Texas 78711-2066

Dear Mr. Slayton:

        You ask ten questions concerning the assessment and distribution of criminal court costs
in various circumstances. 1 Some of your questions are general in nature, asking about the
imposition of "court costs" and "fees" without reference to any specific statute. At the outset, we
note that the Legislature has enacted statutes imposing court costs and fees throughout various
codes, and the language in each statute is unique, making it impossible in many instances to
make blanket statements about the assessment and distribution of court costs and fees. See, e.g.,
TEX. TRANSP. CODE ANN. § 542.403(a) (West 2011) (imposing a $3 court cost on any person
convicted of certain misdemeanors, regardless of the court of conviction); TEX. CODE CRIM.
PROC. ANN. art. 102.014(c) (West Supp. 2011) (imposing a $25 court cost on a person convicted
of specific offenses if the offenses occur in a school crossing zone, but authorizing assessment of
the cost "only in a municipality"). Thus, we cannot provide definitive answers to all of your
questions asked but will provide guidance to the extent possible.

        Your first three questions address instances when a defendant is convicted in a municipal
court of record and appeals to a county-level court, which affirms the judgment of the municipal
court of record. Request Letter at 2-3; see also TEX. Gov'T CoDE ANN. § 30.00014(a) (West
Supp. 2013) (granting county courts "jurisdiction of appeals from a municipal court of record");
TEX. CODE CRIM. PROC. ANN. art. 45.042(a) (West 2006) ("Appeals from a ... municipal court
... shall be heard by the county court[.]"). You first ask whether the defendant will owe only
the court costs assessed at the municipal court level, or whether the defendant will also incur
"additional costs that are assessed for convictions in county-level courts such as the $40 court
cost assessed for the services of the county clerk under article 102.005 of the Code of Criminal

        1
         See Letter from David Slayton, Admin. Dir., Office of Court Admin., to Honorable Greg Abbott, Tex.
Att'y Gen. at 1-7 (Dec. 5, 2013), http://www.texasattomeygeneral.gov/opin ("Request Letter").
Mr. David Slayton - Page 2                            (GA-1063)



Procedure." Request Letter at 2. The fees imposed under article 102.005 apply to a "defendant
convicted of an offense in a county court." TEX. CODE CRIM. PROC. ANN. art. 102.005(a) (West
2006) (emphasis added). A county-level court that affirms the judgment of a municipal court of
record is not itself "convicting" a defendant but is instead affinning the conviction adjudged by
the municipal court of record. 2 Thus, a defendant seeking appellate review at the county-court
level of a conviction from a municipal court of record would not be subject to the fees imposed
under article 102.005 or any other court costs or fees that are imposed only against a defendant
convicted in a county court. 3

        With regard to this same scenario, you also ask whether "any part of the court costs
collected from the defendant [is] directed to the county," and which entity, the city or county,
would be responsible "for collecting the court costs and directing the court costs intended for the
State to the Comptroller." Request Letter at 3. Your questions do not reference any specific
court cost. Determining to which entity each court cost or fee shall be directed, and which entity
is responsible for collecting those costs intended for the Comptroller, will require analyzing the
specific language of the statute imposing the particular cost or fee. See, e.g., TEx. Loc. Gov'T
CODE ANN. §§ 133.107 (West Supp. 2013) (imposing on most convicted defendants a $2 court
cost, most of which is remitted to the Comptroller, to fund indigent defense representation);
.058(a) (allowing the municipality or county collecting certain fees to retain up to ten percent for
collection services). We cannot provide broad answers that will apply in all circumstances.

        Your next three questions are similar to the first three but involve a municipal court that
is not a court of record. See Request Letter at 3-4. "In all appeals to a county court from ...
municipal courts other than municipal courts of record, the trial shall be de novo in the trial in
the county court, the same as if the prosecution had been originally commenced in that court."
TEX. CODE CRIM. PROC. ANN. art. 44.17 (West 2006). Thus, unlike an appeal from a municipal
court of record, a defendant appealing a conviction from a municipal court that is not a court of
record may be convicted at the county court level following a trial de novo. See Schinzing v.
State, 234 S.W.3d 208, 209 (Tex. App.-Waco 2007, no pet.) (explaining that a defendant
convicted in a municipal court who appealed to a statutory county court "was again convicted
following a trial de novo"). With regard to this scenario, you ask whether a defendant convicted

         2
           Subsection 30.00014(b) of the Government Code provides that a county court "shall determine each
appeal from a municipal court of record conviction ... on the basis ofthe errors that are set forth in the appellant's
motion for new trial and that are presented in the clerk's record and the reporter's record prepared from the
proceedings leading to the conviction or appeal." TEX. Gov'T CODE ANN.§ 30.00014(b) (West Supp. 2013). "An
appeal from the municipal court of record may not be by trial de novo." !d.
         3
          Y ou do not ask, and we do not address, whether and to what extent the defendant may incur separate
appellate costs and fees when seeking review at the county-court level. See TEX. CODE CRIM. PROC. ANN. art.
44.281 (West 2006) ("In misdemeanor cases affirmed on appeal from a municipal court, ... the costs imposed on
appeal shall be collected from defendant .... ").
Mr. David Slayton - Page 3                    (GA-1063)



in a trial de novo at the county court level would be subject to the county court costs. Request
Letter at 3. As an example, you note that the Code of Criminal Procedure provides that a
defendant convicted in a county court shall pay a county court technology fee under article
102.0169. /d.; see TEX. CoDE CRIM. PROC. ANN. art. 102.0169(a) (West Supp. 2013). Similarly,
if the governing body of a municipality decides to do so, it may require a defendant convicted of
a misdemeanor offense in a municipal court to pay a technology fee under article 102.0172.
TEX. CODE CRIM. PROC. ANN. art. 102.0172(a) (West 2006). In the scenario you describe, the
defendant will initially be convicted in a municipal court and will be subject to the municipal
technology fee if the municipality imposes one. Request Letter at 3. Upon review in a trial de
novo at the county-level, the defendant will be convicted and will then be subject to the county
technology fee. !d.

        Continuing with this same scenario, you also ask whether any part of the court costs
collected at the county level are directed to the city, and which entity, the city or county, is
responsible for collecting the court costs intended for the State. /d. at 3--4. As discussed above,
determining to whom each court cost or fee shall be directed and which entity is responsible for
collecting the court costs intended for the State will require analyzing the specific language of
the statute imposing the particular cost or fee. You do not ask about any specific statutes or
court costs with regard to these questions, and we cannot provide an answer that will be
applicable in all circumstances.

        Your seventh question asks whether a defendant who is "convicted of multiple counts of
an offense in a single criminal action" should be assessed court costs on each count or only once
per case. !d. at 5. You do not ask about any specific court costs or fees but instead phrase your
question in general terms. As you note, some court costs or fees are assessed upon conviction of
a single offense, while others are assessed against a defendant or for services in a particular case.
!d.; see also TEX. Loc. Gov'T CODE ANN. § 133.105(a) (West 2008) (imposing a particular tee
for conviction of "any otiense"); TEX. CODE CRIM. PROC. ANN. art. 102.004(a) (West 2006)
(imposing a jury fee on a "defendant convicted by a jury"). In answer to your question, certain
court costs and fees may be assessed only once per case, while others may be assessed for each
convicted offense within a case, and a determination about a specific cost or fee will require a
review of the statute or rule imposing that cost.

        Your eighth question concerns whether a convicted defendant may be given credit toward
outstanding fines and court costs for time spent in jail after the sentence has been imposed.
Request Letter at 6. You explain that if a convicted defendant fails to pay an imposed fine and
court costs, the convicting court may order that the defendant be arrested on a capias pro fine and
be brought before the court, at which time the judge holds a hearing to address the defendant's
nonpayment. !d. at 5-6. If the defendant is not taken immediately before the court, the
defendant will be placed in jail, and you question whether time spent in jail can be credited
against the court costs due. /d. You specifically ask about article 45.041 of the Code of
Criminal Procedure, which states in relevant part:

               (a)   The judgment and sentence, in case of conviction in a
                     criminal action before a justice of the peace or municipal
Mr. David Slayton - Page 4                   (GA-1063)



                     court judge, shall be that the defendant pay the amount of the
                     fine and costs to the state.



               (c)   The justice or judge shall credit the defendant for time served
                     in jail as provided by Article 42.03.

TEX. CODE CRIM. PROC. ANN. art. 45.041 (West Supp. 2013). Article 42.03 states:

               In all criminal cases the judge of the court in which the defendant
               is convicted shall give the defendant credit on the defendant's
               sentence for the time that the defendant has spent:

                     (1)   in jail for the case ... from the time of his arrest and
                           confinement until his sentence by the trial court.

Jd art. 42.03, § 2(a)(l) (emphasis added). You suggest that because these statutes only address
credits for time served from the time of arrest until sentencing, they would not apply to the
situation about which you ask, and we agree. Request Letter at 6. The plain language of articles
45.041 and 42.03 of the Code of Criminal Procedure does not authorize a court to give a
defendant credit for time served after the sentence has been imposed. However, other provisions
within the Code of Criminal Procedure authorize certain courts to use a defendant's time served
to satisfy court fines and costs in specific instances. See, e.g., TEX. CODE CRIM. PROC. ANN. arts.
45.048(a)(2) (West 2006), 43.09(a) (West Supp. 2013). Whether a convicted defendant may be
given credit toward outstanding court costs will require analyzing specific facts against the
relevant statute authorizing the credit.

        Your ninth question concerns the imposition of certain costs when multiple warrants
result in a single arrest. Request Letter at 6-7. Article 102.011 of the Code of Criminal
Procedure states in relevant part:

               (a)   A defendant convicted of a felony or a misdemeanor shall
                     pay the following fees for services performed in the case by a
                     peace officer:



                     (2)   $50 for executing or processing an issued arrest
                           warrant, capias, or capias pro fine, with the fee imposed
                           for the services of:

                           (A) the law enforcement agency that executed the
                               arrest warrant or capias, if the agency requests of
                               the court, not later than the 15th day after the date
Mr. David Slayton - Page 5                      (GA-1063)



                                  of the execution of the arrest warrant or capias,
                                  the imposition of the fee on conviction; or

                            (B)   the law enforcement agency that processed the
                                  arrest warrant or capias, if:

                                  (i)    the arrest warrant or cap1as was not
                                         executed; or

                                  (ii)   the executing law enforcement agency failed
                                         to request the fee within the period by
                                         Paragraph (A) of this subdivision; . . . . ·

TEX. CODE CRIM .. PROC. ANN. art. 102.011 (West Supp. 2013). With regard to this provision,
you ask "whether separate $50 fees should be assessed when multiple warrants have been
processed that result in one arrest." Request Letter at 6. The fee described in subsection (a)(2) is
for "an issued arrest warrant," indicating that the fee applies to each issued warrant. TEX. CODE
CRIM. PROC. ANN. art. 102.011(a)(2) (West Supp. 2013) (emphasis added). Furthermore,
although you raise the concern "that charging two arrest fees when only one arrest was made
[may be] inappropriate," the fee expressly applies even when a warrant is not executed. Request
Letter at 7; TEX. CODE CRIM. PROC. ANN. art. 102.0ll(a)(2)(B)(i) (West Supp. 2013). Thus, if
multiple warrants have been issued, the language of article 102.011 authorizes a court to assess
corresponding fees for each warrant issued.

         Your final question asks about a separate fee imposed under article 102.011(a) of the
Code of Criminal Procedure "for services performed in the case by a peace officer," specifically,
"$5 for commitment or release." TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(6) (West Supp.
2013); Request Letter at 7. You explain that your office understands this language to mean that
the fee should be assessed for placing a defendant in jail or releasing a defendant from jail prior
to trial. Request Letter at 7. Furthermore, your office does not construe the statute to authorize a
fee for release if the defendant is not released from jail prior to trial, nor does your office believe
that a fee should be assessed for committing the defendant to jail after the conclusion of the case.
Id The express language of article 102.011(a) authorizes fees for services "performed in the
case." TEX. CODE CRIM. PROC. ANN. art. 102.0ll(a) (West Supp. 2013) (emphasis added). A
court could therefore conclude that any commitment or release from jail after the conclusion of
the case will not be a service performed "in" the case and that article 102.0ll(a)(6) does not
authorize fees for those services.
Mr. David Slayton - Page 6                 (GA-1063)



                                    SUMMARY

                    The fee imposed under article 102.005 of the Code of
             Criminal Procedure applies to a defendant convicted of an offense
             in a county-level court. A defendant whose conviction from a
             municipal court of record was affirmed at the county-court level
             would not be subject to the fees imposed under article 102.005
             because the conviction occurred at the municipal level. Unlike an
             appeal from a municipal court of record, however, a defendant
             appealing a conviction from a municipal court that is not a court of
             record may be convicted at the county court level following a trial
             de novo.

                     Certain court costs and fees will be assessed for each
             convicted offense of a defendant, while others will be assessed
             once per case, and a determination about a specific cost or fee will
             require a review of the statute or rule imposing that cost.

                     While articles 42.03 and 45.041 of the Code of Criminal
             Procedure authorize a court to give a defendant credit only for time
             served from the time of arrest and confinement until sentencing by
             the trial court, other provisions authorize certain courts to use a
             defendant's time served to satisfy court fines and costs in specific
             instances. Whether a convicted defendant may be given credit
             toward outstanding court costs will require analyzing specific facts
             against the relevant statute authorizing the credit.

                     Article 102.011(a)(2) of the Code of Criminal Procedure
             authorizes a court to assess a separate fee for each arrest warrant
             issued even when multiple warrants result in only one arrest.

                    Article 102.011(a)(6) of the Code of Criminal Procedure
             authorizes a $5 fee for commitment or release services performed
             in the case by a peace officer. A court could conclude that any
             commitment or release from jail after the conclusion of the case
             will not be a service performed in the case and that article
             102.0ll(a)(6) does not authorize fees for those services.
Mr. David Slayton - Page 7                  (GA-1063)




                                 ~,         v_:_ry truly yours,

                             r     ~--a ~«<"ZT
                                            GREG ABBOTT
                                            Attorney General of Texas


DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee
