Untitled Texas Attorney General Opinion

QBfficeof tfie 2Mmep Qiheral Qtate of Qexae DAN MORALES A*oltNElGENERAL June 23.1993 Honorable IvRkeDriscoll OpinionNo. DM-230 Haniscolmty Attorney 1001 Preston, Suite 634 Re: Whether article 45.54 of the Code of Houston, Texas 77002-1891 Criminal Procedure permits a justice of the peace to dismiss a complaint against a defendant who has thiled to successtblly complete a driving safety course (.RQ-512) Dear Mr. Driscoll: On behalf of a justiceof the peace in Harris County, you ask whether article 45.54 oftheCodeofCriminalProc&re permitsajusticetodismissacomplaintagainsta def&dant who bas failed to suw complete a driving safety course. We conclude that attide 45.54 does not permit a justice to do so. Artide 45.54 provides in pert&m part: (1) On a plea of guilty or nolo contendere by a &bmiant or on a finding of guilt in a misdemeanor case punishable by tine only and payment of all court costs, the justice may defer further proceedings without atezing an adjudication of guilt and place tbe defendant on probation for a period not to exceed 180 days. . . . . (2) During the deferral period, the justice shall require the defbndant to successtblly complete a. . . driving safety course, if the offi alleged is an offense involving the operation of a motor vehicle . . . . (3) During said deferral period, the justice muy require the defendant to: . . . . (4) At the conclusion of the deferral period, if the defendant presents satisfactory evidence that he has complied with the requirements imposed, the justice shah dismiss the complaint, and it shah be clearly noted in the docket that the complaint is dismissed and that there is not a final conviction. Otherwise, the justice may proceed with an adjudication of guilt. At& an adjudication of guilt, the justice may reduce the tine assessed or may then impose the fine Honorable MikeDriswll - Page 2 (DM-230) assesA,lessanyportionoftheassemedtinethatltasbewpatd. If thewmplaintisdismissed,,aspecialeqwsenottoeXwdthe amount of the tine amessed may be imposed. (5) If at the wnclusion of the deferral period the dekndant does not present satisktory evidence that the defendant wmplied with the requirements impostd, the justice may impose the fine d or impose a lesser tine. The imposition of the tine or lesser Sne constitutes a tkal wnviction of the defendant. . . . . Code Crim. Proc. art. 45.54 (emphasis added). We conclude that article 45.54 does not permit a justice of the peace to dismiss a wmplaint against a defendant who fails to suwesslitlly complete a rewired driving safety course for the following reasons. Section (2) states that a justice “shulf rewire the dehdmt to suwessfdly complete a. . . driving safety course.” Although the wnnotation of the term “shall”is not always mandatory,t we believe the 1~ intended it to be mandatoq in this wntext. The use of the term “shaY in section (2) is in direct contrast to the use of the term “may” in section (3), which provides that “the justice mq rewire the dektdant to” comply with certain other wnditions, such as posting a bond or submit@ to pro&&onal wmselhg. In enachg section (2). the @slatme dearly intended to mandate justices to rewire defembts to sutxes&lly complete driving safety courses. Furthermore, we note that section (2) was added to article 45.54 by the 1~ in 1991. and the&ore p&dates the artide’s other provisions. See Acts 1991,72d Leg., ch. 835.5 4. at 2889. Therefore, to the extent section (2) wntlicts with other sections of artide 45.Y section (2) must prevail. Gov’t Code 5 3 11.025(a) (Code Construction Act) (ii statutes are irrewwilabl~ the statute latest in date of ewcbwnt prevails); see ok0 Attorney General Opiion I’M-1237(1990) at 6. In addition, sections (4) and (5) set forth a justice’s options when a defendant has tailed to comply with the requiwments, but do not expressly address whether or not a justice must requim a defendant to successfully wmplete a driving safety wurse. Section (2). on the other ha& specifically addresses this issue. Therefore, in the event that sections (4) and (5) wntlict with section (2), the more specitic provision, section (2), must prevail. Gov? Code 3 3 11.026(b) (ii a wntlict between a general provision and a special provision is irrewncilable, the special provision prevails as an exception to the general provision, unless the general provision is the later IAs this0Bicenotodin AttomeyGcaerslOpinionWW410 (1959),the lcgislalumik4pmUy ascs”may-md”shau”ia~ ly. AaorncyGenual opinion WW-610 at 3 (quo&g Hess % ,SSkhner En& Co. Y. Tmty, 203 S.W. 593, 594 (lkx. 1918)). Whicbcva word tie lcgislalurehas sbaPmistokamstNal in BCEOrdaOCC with the le&lstivc intoat. Id. (qwtiq Hess & SkinnerEn& Ca. 203S.W. at 594). HonorableMikeDtiscoU - Page 3 GM-230) enactment and the manifest intent is that the general provision prevail); see aku Attorney General Opinion JM-1237 at 6. TheCrstsentenceofsection(4)requiresajusticetodismissawmplaintagainsta defendant who has complied with the requirements imposed, but the remain@ sentences are less specific about a justiw’s duties with respect to a defendant who has failed to do so. Youpointoutthatthe mmaining three sentences of section (4) and section (5) are somewhat ambiguous. You state that these provisions can be wnstrued to permit a justice to dismiss a wmplaint against a defendsnt who has failed to succes&Uy complete a driving safety wurse. In particular, you base your contention on the &al sentence of section (4). That sentence, which follows two sentences regarding a justice’s options when a defendant fails to comply with the requirements imposed, states, “If the wmplaint is dismissed, a special expense not to exceed the amount of the tine may be imposed.” You believe that this sentence can be construed to expressly permit a justice to dismiss a complaint agsinst a defendant who has tailed to succemfuUycomplete a driving safety course. You also rely on the repeated use of the term “may” in the remainder of section (4) and in section (5). which you believe suggests that a justice has the discretion to decide whether or not to proceed with an adjudication of guilt or to impose a tine in such circumstMces You suggest that the last three sentences of section (4) and section (5) wntlict with sAtion (2). We disngree. The last three sentences of section (4) and section (5) predate section (2). and do not distinguish behveen situations in which a defendant has failed to succemgdly complete a driving safety course, a requbement which a justice is msndated to impose under section (2). and those in which a defendant has failed to comply with requirements under section (3), mquirements which ajustice may impose at his or her discretion. These provisions do not expressly permit a justice to dismiss a wmplaint against a de&ndant who fails to sue complete a driving safety course, and need not be read to do so. Rather, the last three sentences of section (4) and section (5) can be harmonized with section (2) if they are wnstrued to permit justices to dismiss complaints against defbndants who Gil to successMy complete requirements imposed pursuant to justices’discretion under section (3), but not to permit justices to dismiss complaints against defendants who fail to sudy complete a driving safety course. Accordingly, we conclude section (2) mandates a justice to require a defendant to successfuUycomplete a driving safety course, and that sections (4) and (5) do not permit a justice to dismiss a complaint against a defendant who has failed to successg~Uycomplete a driving safety course. p. 1194 HonorableMikcDriswU - Page 4 W-230) SUMMARY Artide 45.54 of the Code of CriminalProcedure does not pekt ajusticeofthepcacctodismissawmplaintagainstadefmdaatwho has failed to sucwsdblly complete a driving safety course. DAN MORALES Attorney Oeneral ofTexas WILL PRYOR Fti As&ant Attorney General MARYKELLER Deputy Attorney Gmeral for Litigation RENEAHlcKs State Sokitor MADELEINE B. JOHNSON Chair, OphionCommittee p. 1195