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                       The Attorney               General          of Texas
                                           May 28,      1980
MARKWHITE
Attorney General

                   Honorable Jimmy Mankins, Chairmzn           Opinion No. MW-184
                   Committee on Employment Practices
                   Texas House of Representatives              Re: Procedure in sssessing costs
                   P. 0. Box 2910                              in the Crime Victims Cdmpensation
                   Austin, Texas 78769                         Act, article 8309-1, V.T.C.S.

                   Dear Mr. Msnkirr9:
                        You have asked our opinion in construiq article &309-l, V.T.C.S., the
                   Crime Victims Compensation Act. The relevant p&ion of the Act reads:
                              Sec. 14 (a) The Compensation to Victims of Crime
                              Pmd is created in the State Treasury to be used by
                              the board for the payment of compensation to
                              claimants tmder this Act and other expenses in
                              administering this Act. The board shall make no
                              payments which exceed the amount of money in the
                              fmd. No general revenues may be used for payments
                              under this Act.
                                 (b) A. person shall pay $15 A a court cost, in
                              addition to other court costs, on conviction of any
                              felary and shall pay $10 as a court cost, in addition to
                              other court costs, on conviction of a misdemeanor
                              punishable by imprisonment oc by a fine of mo?e than
                              $200.
                                  (c) Court costs mder this section are collected in
                               the same mann& as other fines or costs.
                         Your fist question Is:
                               Should the coats provided         in Article   83094 be
                               assessed on probated cases?
                          It is well established that the ‘granting of probation in a felony case
                    suspends only the sentence, not the conviction, which is final cmce the right
                    of appeal is exhausted. Clapper v. State, 562 S.W.Od250, 252 (Tex. Crim.
                    App. 1978); Savant v. State, 535 S.W.2d 190, 191 (Tex. Crim. App. 1916);




                                                   p.   587
  Honorable Jlmmy Mankim - Page Two             (I4+1841                                   ,’    ‘..



                       S.W.2d 122 (Tex. Crhn. Aw. l973)1 Ses Coot& v. Texas Board of
                       489 S.W.2d 129, 132 (Tex. Civ. AC-        P    1972, writ rerd
                          414 U.S. 1072, (1972), rah. denied, 414 U.S. ll7y(lS74),   (probated
  felony conviction resulted in license nsvocationk A ttorney General Opinions MW-133
  0980X M-1057 ,(1972).

        Ths 1979 amendments to article 42.13, sections 3 and 3a, Code of Criminal
  Procedure, Misdemeanor Adult Probation and SupervIsion Law, track the language of
  the felony probation statute, article 42.12, Code of Criminal Procedure. Article 42.12
  provides in pert:
             Sec. 3. Ths fudges of the courts of the State of Texas hvig
          original jurisdiction of criminal actIons, when It shall appear to the
          satisfaction of the court that the ends of justice and the best
          interests of the public as well as the defendant will be s&served
          thereby, shall have the power, after conviction Q a plea of guilty
          for any crime or offanse, where the maximum punishmant assessed
          against the defendant &es not exceed ten years Imprisonment, to
          suspend the impcaition of the sentence and may place the
          defendant cn probation Q Impose a fine applicable.to the offense
          committed and also place the defalant ai probation as hereinafter
          provided.
             Sec. 3a. Where there is a conviction In any court of this State
           and the punishment assessed by the jury shall not exceed ten yesrs,
           the jury may recommend probation for a period of any term of
           years authorized for the offense fa which the defendant was
           convicted, . . .
     The new srticle 42.13 now speaks in terms of %onviction” and Indicates that, like
fehy     pmbation, misdemeanor probation suspm& only the sentence and not the
conviction. Attorney General Opinion MW-133(NO).
      A dsZerred adjudication of guilt establishes a different procedure fcr probation. The
relevant portion of article 42.l3, section 36 provides
             (a) When in its opinion the best interest of society and the
           defendant .will be served, the court may, after receivirg a plea of
           guilty or plea of mlo contendere, hear@ the evidence, and find@
           that it stistantfates    the defendant% guilt, defer further pro-
           ceedillgs without entering sn adjudication of guilt, and place the
           defendant cn p&&ion QI reasonable terms and amditions as the
           court may require and for a period as the court may prescribe not
           to exceed the maximum period of Imprisonment far the offense for
           which defendant is charged. However, igpan written motion of the
           defendant questifq     final adjudication f&cl within 39 days after
           enter-    such pla and the deferment of adjudication, the court
           shall proceed to fins1 adjudication as in all other cases.




                                              p.   588
Honorable Jimmy Mankinr - Pege m            NW-180




             (b) On violation of a condition of probation im&            rndv
           Subsection (a) of this ssction, the defendant may be arrested and
           detained ag provided in Section 8 of this Article. The defendant is
           entitled to a heariw limited to the determination by the court of
           whether it proceeds with an djudication of guilt on the criginsl
           charge. No appeal may be taken from this determination. After an
           adjudicatfon of guilt, all proceedfrsyq includ@ assessment of
           punishment, pronouncement of sentence, grantiw of probation, and
           defendant’s appeal continue ss if the adjudication of guilt had not
           been deferred.
Ex psrte Laday (No. 63,379, Tex. Crim. App., Peb. 20, 1980) and Crutchfield v. State, 560
S.W.2d 685, 686 (Tex. Crim. App. 1978). both hold that an adjudication made rnder article
42.13, section 3d does not establish a judgment of conviction. A fhtal conviction is
recorded at a hearing held only if defendant has violated a condition of his original
probation. Walker v. State, 557 S.W.Zd 785,786 (Tex. Crim. App. 3977).
       Therefore, since article 8309-1, section 14(b) speaks in terms of %nvictionn and
since in article 42.12, sections 3, 3a and article 42.13, sections 3, 34 adjudication of guilt
results in final conviction, costs should be assessed in those probated cases. In a probation
under article 42.13, section 3d, however, final conviction is deferred until the revocation
of probation, if any. Article 8309-l costs cannot be assessed until the court, in such a
case, grants fins1 conviction after the revocation.
      Your second question is:

            Are the costs provided in Article 8309-l to be assessed as to crimes
            committed before September l, 19799
       A similar question was addressed in Attorney General Opinion M-983 (l97l) which
involved a fee of 9250 denominated as costs of court and payable upon conviction of
certain misdemeanors. The opinion concluded that the fee could r&t be assessed QI
offenses committed prior to the effective date of the statute.          On the basis of that
opinion, it is our opinion that the costs provided for in article 8309-l may Mt be collected
on conviction of a crime committed prior to September 1, 1979. -See Tex. Const. art.
I, S 16.
                                       SUMMARY
            A person granted probation under article 42.12, sections 3, 3a or
            article 42.13, sections 3, 3a of the Code of Criminal Procedure has
            a final conviction end, as such, should be assessed the costs
            provided in article 8309-l. A person granted probation mdcr
            article 42.13, section 3d of the Code of Criminal Procedure &es
            not have a final conviction and cannot be assessed article 8309-l




                                            P.   589
           ?horst.tle Jimmy Msnkim - P-0 POW               W-184)




                   Cats   knpaed   by utiele        8309-1, V.T.C.S.., rn;   not be
           3        a~ amtictlon   of crlmee commltted before Ssptamba            I,
               .




                                           MARK WHiTR
                                           Attorney General of Texas

JOHN W. PAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Dawn Bnmer
Assistant Attorney General
APPROVRD:
OPINION COMMIITEE
C:Robert Heath, Chairman
Dawn Bnmer
Susan Garrison
Ride Gilpin
Jim Simpkins
BNiX! YOW@hOd




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