                                Q?Xficeof tip RIttornep @eheral
                                            State of fLexas
DAN MORALES
 ATTORNEY
       GENERAL                              December 22,1997


   The Honorable Rodney Ellis                         Opinion No. DM-464
   Chair, Jurisprudence Committee
   Texas State Senate                                 Re: Constitutionality of Senate Bill 1417, Acts
   P.O. Box 12068                                     1997, 75th Leg., R.S., ch. 1327, and related
   Austin, Texas 7871 l-2068                          questions (RQ-987)

   Dear Senator Ellis:

          You have requested our opinion on a number of questions relating to the legislature’s recent
   enactment of a “time payment fee.” See Act of May 27,1997,75th Leg., R.S., ch. 1327,1997 Tex.
   Sess. Law Serv. 5024,5024. That provision, to be codified as section St .921, Govetnment Code,
   provides, in relevant part:

                  (a) Jn addition to other fees authorized or required by law, the clerk of
              each district court, statutory county court, county court at law, justice court,
              and municipal court shall~collect a fee of $25 from a person who:

                         (1) has been convicted of a felony or misdemeanor;

                      (2) has been ordered to pay a fine, wurt costs, or restitution by the
                  court; and

                      (3) seeks to pay the fine, court costs, or restitution over a period of
                  time rat&r than immediately.

                  (b) Court fees under this section shall be collected in the same manner as
              other fees, tines, or costs in the case. The officer wlleoting the fees shall
              keep separate records of the money collected under this section and shall
              deposit the money in the county or municipal treasmy, as appropriate.

          Under statutes in effect prior to the enactment of section 5 1.921, when a defendant is ordered
   to pay a fine and costs as part of a sentence in a criminal adjudication, the court may direct the
   payment of the fine and costs in one of three ways:

                  (1) to pay the entire fine and costs when sentence is pronounced, or

                  (2) to pay the entire fine and costs at some later date; or
The Honorable Rodney Ellis - Page 2                  (DM-464)




                (3) to pay a specified portion of the fine and costs at designated intervals.

Code Grim. hoc. art. 42.15.’ In addition, the court may order a defendant to make full or partial
restitution to his victim, and may require that the defendant do so “immediately” or ‘within a
specified period or in specified installments.” Id.art. 42.037(g). Newly-enacted section 51.921
addresses the situation in which a defendant seeks to pay a fine, court costs, or restitution “over a
period of time.” Section 51.921 thus imposes a charge for a service provided to a convicted
defendant-paying “over a period of time”-that was free prior to the effective date of the statute,
September 1,1997. You first ask whether, in light of Attorney General Opinion DM-123 (1992),
the time payment fee established by section 51.921 is violative of the due process or equal protection
clauses of the Texas Constitution.

        That opinion concluded that section 51.702(h), Government Code, which authorized a
wmmissioners court to adopt a resolution requiring the payment of an additional $10.00 in wurt costs
for each miminal conviction in a statutory county court, was unwnstitutional on both due process and
equal protection grounds, because some wunties might not adopt the additional fee, and more
importantly, because many counties have no statutory county court. Thus, the statute “allow[ed]
different costs to be assessed in different wunties for the same penal offense.” Attorney General
Opinion DM-123 (1992) at 3 (quoting from Attorney General Opinion JM-880 (1988)). For the
reasons explained below, we construe the fee created by section 5 1.921 to apply uniformly throughout
the state at the criminal trial level. Consequently, it is not violative of either due process or equal
protection for the reasons cited in Attorney General Opiion DM-123.2

        Section 51.921 states that it applies to each “statutory wunty wurt” and to each “wunty court
at law.” Since a statutory county wurt is identical to a wunty wurt at law, you suggest that the
phrase “statutory county court” should be read as “wnstitutional county court.” We agree.

        If section 51.921 is not applicable to wnstitutional wunty wurts, it is subject to the objection
raised in Attorney General Opinion DM-123, supru, in that it assesses a charge upon a category of
defendants-those who “seek to pay” their fine, court costs, or restitution “over a period of time”-in
certain wunties but not in others. Although it is not the proper fbnction of the judiciary, or this office,
to correct legislative errors, mistakes, or omissions, Seuy v. Hull, 677 S.W.2d 19 (Tex. 1984), it is the
case that courts have sometimes substituted one word or phrase for another, in order to csrry out the
intent of the legislature, Duvis v. State, 88 Tex. Grim. 183,225 S.W. 532 (1920); Mnuzy v. Legislative
RedistictingBd., 471 S.W.2d 570 (Tex. 1971). Nothing in the legislative history of Senate Bill 1417
indicates an intent to exclude wnstitutional county courts from the ambit of section 51.921, and the
inclusion of the identical terms “statutory county court” and “county court at law” demonstrates, in


        'Article uses
             45.48         identical language for justice and municipal courts.

        Vou do not ask, and we do not address, whether the fee otherwise co-      with state or federal due process
and equal protection guarantees.



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The Honorable Rodney Ellis - Page 3                     (DM-464)




our view, that the legislahue inadvertently used the phrase “statutory county court” when it meant to
say “wnstitutional county wurt.” Furthermore, the legislature was presumably aware of the existence
of Attorney General Opiion DM-123 and the authority on which it relied when it enacted Senate Bill
1417. Since we are required to construe an ambiguous statute in such a way as to render it
wnstitutional, if at all possible, State v. Shoppers World, 380 S.W.2d 107 (Tex. 1964), we conclude
that section 5 1.921 includes wnstitutional wunty courts among that group of wurts to which the time
payment fee is applicable. To hold otherwise would lead to absurdity-a result surely not intended by
the legislature.

         Your next question is whether the time payment fee is applicable only to those offenses
wnnnitted after the effective date of Senate Bill 1417, i.e., September 1, 1997. You suggest that, if
the statute were applied to a person charged with an offense that occurred before September 1,1997,
but whose conviction occurs after September 1, 1997, it might constitute a “retroactive law,” in
contravention of article I, section 16 of the Texas Constitution.’ A law is impermissibly retroactive
if it “substantially alters the consequences attached to a crime already completed, and therefore
changes ‘the quantum of punishment.“’ Weaver v. Gruhmn, 450 U.S. 24 (1981), citing Dobbert v.
Floriak, 432 U.S. 282,293-94 (1977). In Turbeville v. Gowdy, 272 S.W. 559 (Tex. Civ. App.--Fort
Worth 1925, no writ), the court declared: “A statute is retroactive which takes away or impairs vested
rights acquired under existing laws, or creates a new obligation, imposes a new duty, or adopts a new
disability in respect to trmsactions or wnsiderations already passed.” Turbeville, 272 S.W. at 561.

        As we noted in our answer to your fnst question, article 42.15 of the Code of Criminal
Procedure has long given the court the option of permitting a defendant to pay his fine “at designated
intervals.*’ Section 51.921 of the Government Code provides that, in such circumstances, the
defendant must pay an additional fee of $25.00. As we noted previously, what was once free now
costs $25.00. Although the time payment fee is not a “punislnnent,” it does create a “new obligation”
and imposes a “new duty” on persons who wish to pay their fines, court costs, or restitution “over a
period of time.” As a result, it cannot, in our view, be imposed for offenses committed before the
effective date of the statute.

        You then question whether the time payment fee applies to an individual who has been
granted deferred adjudication. Section 51.921 is applicable to any person who, inter aliu, “has been
wnvicted of a felony or misdemeanor.” Deferred adjudication under section 5 of article 42.12, Code
of Criminal Procedure, means that the court, after receiving a plea of guilty or nolo contendere, has
found that it is in the “best interest of society and the defendant” to ‘defer anther proceedings
without entering an adjudication of guilt, and place the defendant on wmmunity supervision.” Code
Crim. Proc. art. 42.12, $ 5(a). When a defendant is discharged after successmlly completing
wmmunity supervision under deferred adjudication, such “dismissal and discharge . . . may not be



         3Article I, section 16, provides:“Nobill of attainder, w. post facto law, retroactive law, or any law impairing
the obligation of contracts, shall be made.”



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The Honorable Rodney Ellis - Page 4                     (DM-464)




deemed a conviction for the purposes of disqualifications or disabilities imposed by law for
conviction of an offense,” except for certain circumstances not relevant here. Id. $5(c).

         In Rodriguez v. State, 680 S.W.2d 585 (Tex. App.--Corpus Clnisti 1984, no writ), the court
stated that “[a] defendant whose adjudication of guilt is deferred does not have a final conviction ad
may not appeal unless he proceeds to a final adjudication.” Rodriguez, 680 S.W.2d at 587.
Likewise, in Ttiplettv. State, 686 S.W.2d 342,345 (Tex. App.--Houston [lst Disk] 1985, writ ref d),
the court said that “[dlefened adjudication means that a defendant has been indicted of a offense,
rather than convicted.” Probation under deferred adjudication is different from probation that is
granted after a sentence by suspending the sentence assessed. Reed v. State, 702 S.W.2d 738,740
(Tex. App.--San Antonio 1985, no writ). See generally McNew v. State, 608 S.W.2d 166 (Tex.
Crim. App. [Panel Op.] 1978); Attorney General Opinion DM-349 (1995). We conclude that the
time payment fee does not apply to an individual who has been granted deferred adjudication.

         You also inquire about the meaning of the term “immediately,” as used in section 5 1.921.
The time payment fee is applicable to a defendant who “seeks to pay the fine, court costs, or
restitution over a period of time rather than immediately.” You suggest that “immediately” means
the time the sentence is pronounced by the court.4

        Terms in the Government Code must be wnstrued in wntext and according to their common
usage. Gov’t Code 4 3 11.Ol l(a). “Immediately” has been held to mean ‘kvithout interval of time,”
C. & R Transport, Zn.c.v. Campbell, 406 S.W.2d 191, 195 (Tex. 1966), and “forthwith,” Emmons
v. Zngebretson, 279 F. Supp. 558, 568 (M.D. Iowa 1968). It does not mean “instantaneous,”
Pickering v. American Employers Ins. Co., 282 A.2d 584, 592 (RI. 1971), but only “within a
reasonable time considering all the circumstances,” Nuti&~~lSurety Corp. v. Wells, 287 F.2d 102,
106 (5th Cii. 1961). A satisfactory definition for purposes of the statute under consideration might
be “without unnecessary or unreasonable delay.” People v. Carter, 365 N.Y.S.2d. 964,968 (N.Y.
Co. Ct. 1975). In our opinion, read in the context of section 51.921, in juxtaposition to “over a
period of time, ” “immediately” should be taken to mean “in a lump sum and within a reasonable
time as directed by the wurt.”

         You next question whether, in the event the court wnsolidates several charges against one
defendant, section 5 1.921 “pennit[s] the imposition of a fee for each charge consolidated or for each
case.” The time payment fee is applicable to every individual fine, group of court costs, or
restitution ordered by the court. It thus applies to every court order to pay “a fine, court costs, or
restitution” If the wurt consolidates several charges, and imposes a single charge in a single order,



          ‘You have not raised an additional problem posed by the enactment of Goveromeo tcode,section51.921:Tbat
statute distiqdes     only between “immediatelly” and “over a period of time,” wherea.s article 42.15, code of Crikoal
Pm&we, distinguishes beIween “when sentence is pronounced,” “at some later date,” and “at designated intewaLs.”
For purposes of oar analysis here, we are equating “over a period of time” uoder section 51.921 only with “at designated
i&n&”       under aaicle 42.15. We do not evolve whether the section 5 1.921 fee also applies to a defendant who pays
a fine in one hmp sum “‘atsome later date.”


                                                       p.   2609
The Honorable Rodney Ellis - Page 5                       (DM-464)




it seems clear that only one time payment fee may be assessed. If, on the other hand the court issues
more than one order imposing a fine, wurt costs, or restitution, a time payment fee may be charged
for each order.

        Finally, you ask whether the time payment fee is a “wst of court” for purposes of collection.
You explain that you are wncerned about the priority of payment for the various amounts assessed
to a defendant by the court. Section 5 1.921 imposes the time payment fee on one who “has been
ordered to pay a line, court costs, or restitution by the wurt,” and who seeks to make such payments
“over a period of time.” The language of the statute would seem to provide contradictory answers
to your question. On the one hand, in section 5 1.921(a)(2) the $25.00 fee is imposed as something
other than “ a fine, court costs, or restitution.” See Act of May 27, 1997,75th Leg., R.S., ch. 1327,
1997 Tex. Sess. Law Serv. 5024, 5024. On the other hand, subsection (b) states that “court fees
under this section shall be collected in the same manner m otherfees, fines, or costs in the case.”
Id.

         The time payment fee joins myriad other fees that the legislature has in recent years imposed
upon convicted persons. See, e.g., Code Grim. Proc. arts. 102.005 (fees to clerks), .OOS(fees for
services of prosecutors), .Oll (fees for services of peace officers), .013 (other court costs); .015
(misdemeanor costs), .017 (felony costs), .051 (costs for the benefit of the criminal justice planning
fund), .081 (tra& conviction costs). The only difference between these costs and the time payment
fee is that the defendant may avoid the latter by paying his line, court costs, or restitution in a lump
sum. Lie these other fees, proceeds from the time payment fee are shared among various organs
of government.5 We do not believe that the time payment fee is sufficiently distinguishable from
these other fees to permit us to conclude that it is not a “wst of court.” It is thus our opinion that
the time payment fee wnstitutes a “wst of court” for purposes of wllection.



        %~e latter portion of section 5 1.921 provides:

                (c) The custodian of the county or municipal treasury, as appropriate, shall keep a
            record of the amount of money on deposit ccGcted under this section and shall send 50
            percent of the fees collected under this section to the comptmller at least as frequently as
            mont3ly. The ecmptroller shall deposit the fees received to the.credit of the general revenue
            fund.

                 (d) The custodian of the county or municipal lxaswy, as appropriate, shall deposit 10
            percent of the fees collected under this section in the general fund of the county or
            municipality for the purpose of improving the efficiency of the administration of justice in
            the county or municipality. The county or municipality shall prioritize the needs of the
            judicial offmx who collected the fees when making expenditures under this subsection.

                (e) The co&dim of the county or muoicipal treasury, as appropriate, shall deposit 40
            percent of the fees collected under this section in the general revenue account of the county
            01 municipality.

Act of May 27.1997.75tb    Leg., R.S., ch. 1327,1997 Tex. Sess. Law Serv. 5024.5024.



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The Honorable Rodney Ellis - Page 6             (DM-464)




                                       SUMMARY

                Section 5 1.921 of the Government Code, which imposes a “time payment
           fee” on every convicted defendant who chooses to pay his tine, court costs,
           or restitution “over a period of time” rather than “immediately,” is not
           violative of due process or equal protection under the Texas Constitution for
           the reasons expressed in Attorney General Opinion DM-123 (1992). The
           time payment fee is applicable only for offenses committed on or after
           September 1, 1997. It applies to all trial courts in the state, including
           constitutional county courts, but not to an individual who has been granted
           deferred adjudication. “Immediately” means ‘kithin a reasonable time as
           directed by the court.” If the court consolidates several charges, and imposes
           a fine, court costs, or restitution in a single order, only one time payment fee
           may be assessed. The time payment fee is a “cost of court” for purposes of
           priority of payment.




                                               DAN MORALES
                                               Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opiion Committee

Prepared by Rick Gilpin
Deputy Chair, Opiion Committee




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