THE ATTOKSET GESERAL
OF TEXAS
December 27, 1989
Honorable Bob Bullock Opinion No. JM-1124
Comptroller of Public Accounts
L.B.J. State Office Building Re: Effect of amendments
Austin, Texas 78774 to statutes that allow a
driver to defer disposi-
tion of punishment pending
successful completion of a
defensive driving course
(RQ-1815)
Dear Mr. Bullock:
You ask about the effect of an amendment to section
143A of article 6701d, V.T.C.S., by Senate Bill 1204 of the
71st Legislature. Section 143A permits a court to defer
disposition of punishment for driving offenses pending
successful completion of a defensive driving course. You
also direct our attention to Senate Bill 1085 of the 71st
Legislature because of its provision relating to the payment
of court costs. You advise us that your concern with Senate
Bill 1085 is limited solely to the effect it may have on
costs in a section 143A proceeding.
Section 143A of article 6701d, V.T.C.S., as amended by
Senate Bill 1204, Acts 1989, 71st Leg., ch. 1105, 5 2, at
4579, effective September 1, 1989, provides in pertinent
part:
(a) When a person is charged with a mis-
demeanor offense under this Act, other than
a violation of Section 51, committed while
operating a motor vehicle, the defendant
shall be advised of his right to successfully
complete a driving safety course and the
court:
(1) in its discretion may defer pro-
ceedings and allow the person 90 days to
present evidence that, subsequent to the
alleged act, the person has successfully
completed a driving safety course approved
by the Texas Department of Public Safety
p. 5905
Honorable Bob Bullock - Page 2,,(JM-1124)
or other driving safety course approved by
the court; or
(2) shall defer proceedings and allow
the person 90 days to present a depart-
ment-approved certificate of course
completion as written evidence that,
subsequent to the alleged act, the person
has successfully completed a driving
safety course approved by the Texas
Department of Public Safety or another
driving safety course approved by the
court, if:
(A) on or before the answer date
on the cjtation the person enters a
plea in person or in writing of No
Contest or Guilty and presents to the
court an oral request or a written
request, in person or by mail post-
ma
rk ed on
on the citation, to-take a course;
(B) the
the nerson's ~1 a f No Contest or
Guiltv at the tize Othe olea is made
fl
for 90 davs;
&)- the person has a valid Texas
driver's license or permit:
m [@)I the person's driving
record as maintained by the Texas
Department of Public Safety does not
indicate su,ccessful completion of a
driving safety course under this
subdivision within the two years
immediately preceding the date of the
alleged offense:
1E). [fD)] the person files
affidavit with the court stating thi:
the person is not in the process of
taking a course under this subdivi-
sion and has not completed a course
under this subdivision that is not
yet reflected on the person's driving
record: and
P. 5906
Honorable Bob Bullock - Page 3 (JM-1124)
m [f3)] the offense charged is
for an offense covered by this sec-
tion other than speeding 25 miles per
hour or more over the posted speed
limit at the place where the alleged
offense occurred.
(b) When the person complies with the
provisions of Subsection (a) of this section
and a certificate of course completion
approved by the department is accepted by the
court, the court shall rem ve the ludoment
and dismiss the charge, bug the court may
only dismiss one charge for completion of
each course.
When a charge is dismissed under this
section, the charge may not be part of the
person's driving record or used for any
purpose, but the court shall report the fact
that a person has successfully completed a
driving safety course and the date of comple-
tion to the Texas Department of Public Safety
for inclusion in the person's driving record.
The court shall note in its report whether
the course was taken under the procedure
provided by Subdivision (2) of Subsection (a).
of this section for the purpose of providing
information necessary to determine eligi-
bility to take a subsequent course under.
that subdivision. An insurer delivering or
issuing for delivery a motor vehicle in-
surance policy in this state may not cancel
or increase the premium charged the insured
under the policy merely because of an offense
dismissed under this section or because the
insured completed a driving safety course
under this section. (Emphasis indicates
changes and additions made by Senate Bill
1204.) .
Senate Bill 1085, Acts 1989, 71st Leg., ch. 347, §§ 2,
6, 9, 10, at 1316, effective October 1, 1989, amends article
102.051 of the Code of Criminal Procedure, section 415.082
of the Government Code, section 1C of the Texas Motor
Vehicle Safety-Responsibility Act (article 6701h, V.T.C.S.),
and section 14 of the Crime Victims Compensation Act
(article 8309-1, V.T.C.S.). Each of these statutes provides
for payment of court costs upon conviction of the defendant.
The amendments by Senate Bill 1085 provide in all of the
p. 5907'
Honorable Bob Bullock - Page 4 (~~-1124)
foregoing statutes that a person is considered to have been
convicted in a case if a sentence is imposed, the defendant
receives probation or deferred adjudication, or the court
defers final disposition of the case.
Article 102.051 of the Code of Criminal Procedure
provides that a defendant convicted of a misdemeanor
punishable by a fine, not to exceed $200, shall pay as cost
of court $5. In the event the conviction is for a
misdemeanor punishable by a fine exceeding $200, the
defendant shall pay court costs of $10. Pedestrian and
parking offenses are excepted from these costs. Municipal
and county treasurers may retain 10 percent of the costs.
Id. art. 102.054. The comptroller of public accounts
deposits the funds received by him in a special fund to be
known as the criminal justice planning fund. L art.
102.055.
In light of the amendments resulting from Senate Bill
1204 and Senate Bill 1085, you ask the following questions:
1. Whether these amendments in S.B. No.
1085 and S.B. No. 1204 can be reconciled with
Texas Attorney General Opinion No. J'M-917 or
whether they also are unconstitutional since
they purport to punish someone as if they
were finally convicted without regard to
whether they are ultimately convicted of an
offense?
2. Are court costs due at the time the
judgment is entered as Article 6701d, Sec.
143A, as amended by S.B. No. 1204 requires?
3. Whether the administrative cost auth-
orized in Article 6701d can be reconciled
with Texas Attorney General Opinion No.
JM-917?
Attorney General .Opinion JM-917 (1988) addressed the
constitutionality of section lC(e) of article 6701h,
V.T.C.S. That statute permitted courts to charge a ten
dollar fee before dismissing a criminal charge for failure
to maintain proof of financial responsibility, when the
charge was based solely on failure to produce suitable
documentary proof of financial responsibility when requested
by a police officer and when adequate proof could be
produced at a subsequent hearing. It was noted that while
proof of financial responsibility must be furnished to an
officer who requests it, failure to furnish the evidence is
.p. 5908
Honorable Bob Bullock - Page 5 (JM-1124)
,
not a crime. The operator was in effect paying a fee for
dismissal of a charge based on a violation that is non-
existent, i.e., failure to have in his possession proof of
financial responsibility. It was concluded that a criminal
defendant innocent of a charge may not be required to pay a
fee in order to have a charge dismissed.
Subsection (a) of section 143A, article 6701d, affords
the court an option after advising the defendant of his
right to complete a driving safety course. Under sub-
section (a)(l) the court is given the discretion to defer
proceedings for 90 days without the necessity of a plea
being entered by the defendant or entry of judgment. Nor is
there any requirement that the defendant make application
for deferral to complete a driving course.
Under subsection (a) (2), the court defers proceedings
for 90 days upon the defendant's oral or written request to
take a driving safety course. The request must be submitted
at or before the time the defendant enters a plea of guilty
or no contest, and the court enters judgment on the plea.
In addition the defendant must satisfy the requirements of
subsections (2)(C), (D), (E), and (F). We assume that the
judgment reflects a conviction for the offense since a plea
of guilty (without the necessity of supporting evidence) is
sufficient to support a conviction in a misdemeanor offense.
Code Crim. Proc. art. 27.14(a). A plea of guilty and waiver
of jury in a misdemeanor case for which the maximum punish-
ment is by fine only may be made by mail to the court
and will support a conviction. LB, 27.14(b); see Attorney
General Opinion JM-876 (1988).
Unlike the procedure denounced in Attorney General
Opinion JW-971, we presume the charged violation in your
scenario has the underpinning of an existing offense.
The procedure followed under V.T.C.S. article 6701d,
section 143A(a)(2), appears to be a form of probation. The
defendant enters a plea of guilty or no contest and judgment
is entered thereon.1 Imposition of judgment is deferred
only upon application of the defendant. Removal of judgment
1. In deferred adjudication proceedings the court
defers further proceedings following the plea and does not
enter an adjudication of guilt. See Attorney General
Opinion JM-377 (1985).
p. 5909
Honorable Bob Bullock - Page 6 (JM-1124)
and dismissal of the charge results upon proof of the
defendant's successful completion of the driving course.
In E,
m 709 S.W.2d 744 (Tex. App. - San
Antonio 1986, pet. ;ef'd) the court rejected the
defendant's claimed violatio;s of due process and equal
protection of the law resulting from a statutory requirement
(article 42.12B, section 6b(c) of the code of Criminal
Procedure) that he serve 120 days in prison as a condition
of probation on a conviction for involuntary manslaughter by
reason of intoxication. Probation in &one2 had been granted
under article 42.12 of the Code of Criminal Procedure.
Section 3d(c) of article 42.12 provides that upon successful
completion of the terms of probation, the court dismisses
the charge and discharges the defendant. Following
dismissal of the charge the defendant is not deemed to have
been convicted of an offense.
Attorney General Opinion JM-898 (1988) addressed the
matter of a justice of the peace requiring community service
under article 45.54 of the Code of Criminal Procedure..
Article 45.54 provides that upon conviction of a defendant
of a misdemeanor (other than a violation under 67016) pun-
ishable by fine only, the justice may suspend the imposition
of the fine and defer final disposition of the case for a
period not to exceed 180 days. In Attorney General Opinion
JM-898, it was concluded that the defendant may be required
to perform reasonable community service as a condition of
deferral under section (2)(d) of article 45.54, authorizing
the justice to defer disposition of the defendant's case on
compliance with reasonable conditions other than payment of
the fine. At the conclusion of the deferral period, the
justice has authority under the provisions of article 45.54
to dismiss the complaint.
The fact that a defendant under subsection (a)(2) of
section 143A of article 6701d may be required to success-
fully complete a driving course (pursuant to his applica-
tion) and pay court costs upon entry of judgment following
his plea does not in our opinion render these statutory
requirements unconstitutional because the judgment may
ultimately be removed and the cause dismissed.
The more difficult question arises under subsection
(a)(l) where the court is given the discretion of deferring
proceedings for 90 days without the necessity of the
.defendant entering a plea, a judgment being entered, or the
defendant making application for deferral in order to take a
driving course. A statutory prerequisite to the assessment
of costs in question is the conviction of the defendant.
p. 5910
Honorable Bob Bullock - Page 7 (JM-1124)
Under Senate Bill 1085 the defendant is considered to have
been convicted in a case if "(1) a sentence is imposed; (2)
the defendant receives probation or deferred adjudication:
or (3) the court defers final disnosition of he cas
Acts 1989, 71st Leg., ch. 347, 5 2, at 1317t (empha%i
added).
Under Senate Bill 1085 a person may be considered
convicted where the "court defers final disposition of the
case." Id, If applied to subsection (a)(l) of section 143A
of article 6701d, the result would be that a judgment
reflecting guilt of the defendant would be entered without
the defendant having received any semblance of a trial.
Instead, under subsection (a).(l) the .court merely defers
proceedings to allow the defendant time to complete a
driving safety course. No plea is required nor is there any
adjudication of guilt or entry of judgment. We believe that
to allow court costs to be assessed upon the basis of a
statutory assumption of guilt of a defendant under these
circumstances is to deprive the defendant of property
without due process of law. Such a procedure allows a
conviction to be entered against a defendant without having
afforded the defendant his constitutional right to a trial.
In your second question you ask if court costs are due
at the time judgment is entered in a section 143A, article
6701d, proceeding. Our treatment of your first question
reflects that imposition of court costs predicated on a
conviction without a plea or judgment is unconstitutional
under subsection (a)(l). In Attorney General Opinion JM-526
(1986), it was concluded that court costs are due at the
time the judgment of conviction is entered in an article
45.54 proceeding rather than at the end of the deferral
period when the complaint may be dismissed. & at 5; see
Attorney General Opinion JM-905 (1988). We conclude that
under a subsection (a)(2) proceeding court costs are due at
the time "the court enters judgment on the person's plea
of No Contest or Guilty . . . .'I V.T.C.S. art. 6701d,
5 143A(s)(l)(B) (as amended by Senate Bill 1204, Acts 1989,
71st Leg., ch. 1105, 5 2, at.4579).
In your final question you ask whether the administra-
tive costs authorized in article 6701d may be reconciled
with Attorney General Opinion JN-917 (1988). Subsection (c)
of section 143A of article 6701d provides "[t]he court may
require the person requesting a driving safety course to pay
a fee set by the court at an amount that does not exceed
$10 including any special fees authorized by statute or
municipal ordinance to cover the cost of administering this
section." Funds collected are deposited in the municipal
p. 5911
Honorable Bob Bullock - Page 8 (JM-1124)
treasury if the trial is in municipal court and in the
county treasury if trial is in the justice court. L
Attorney General Opinion JM-441 (1986) concluded 'that
section 143A, article 6701d, did not allow the assessment of
an administrative fee against the defendant or against the
providers of driving courses without statutory authoriaa-
tion, The opinion stated "[i]t is well-established that a
fee may not be charged unless the fee is provided for by
law." Id. at 1. The legislature appears to have responded
to Attorney General Opinion JW-441 by amending the statute
in Senate Bill 515, Acts 1987, 70th Leg., ch. 1059, B 1, at
3591, effective September 1, 1987, by providing for the fee
set forth in subsection (c) for the costs of administering
this section. The guesti-Jn of the constitutionality of the
administrative fee was neither raised nor addressed in
Attorney General Opinion JW-441.
The distinction between a subsection (a)(2) procedure
and the one denounced in Attorney General Opinion JW-917 has
been discussed in your first question. We conclude that the
statutorily imposed fee for administering a section 143A
procedure is an appropriate cost under the form of probation
granted pursuant to subsection (a)(z).2
As heretofore noted no plea is made by the defendant
nor is there any adjudication of guilt under subsection
(a) (1). Whether the amount assessed is denominated as
"court cc&z" or "administrative fee," it is a governmentally
imposed cost incident to the filing of a charged violation
of the law. In Attorney General Opinion JM-880 (1988), at
3, it was stated:
In Texas, costs in misdemeanor criminal
cases are assessed as part of the punishment.
B oarte Carson, 159 S.W.2d 126 (Tex. Crim.
App. 1942); uarte IQ&I& 46 S.W. 828 (Tex.
Crim. App. 1898). See also Attorney General
Opinion JM-443 (1986). & United States v
Palmer, 809 .F.2d 1504 (11th Cir. 1987;
2. Without knowing what other "special fees authorized
by statute or municipal ordinance" may be authorized to
cover costs of this section, we are unable to pass judgment
on the constitutionality of this provision in subsection
(Cl *
p. 5912
Honorable Bob Bullock T Page 9 (JM-1124)
i
(holding imposition of costs as punishment to
be constitutional).
Since the defendant in a subsection (a)(l) proceeding
has never been adjudicated to be guilty of any offense, we
conclude that the imposition of administrative costs against
the defendant in such a procedure possesses the same con-
stitutional infirmities. found in Attorney General Opinion
JM-917.
SUMMARY
Senate Bill 1204 and Senate Bill 1085 of
the 71st Legislature are not violative of any
constitutional provision in permitting costs
to be assessed against a defendant in a
sp;zctfi =(t)(2), section 143A, article
. . . proceeding that permits the
court'to defer'imposition of judgment pending
successful completion of a defensive driving
course. The assessment'of court costs in a
;E;ctio; T(;)sl), section. 143A, article
. . . ., proceeding where the
defendant is adjudged to be guilty without
having entered a plea to the charge or the
court having made an adjudication of guilt
deprives a defendant of due process of law
and his constitutional right to a trial.
Court costs are due at the time of entry of
judgment following the defendant's plea and
entry of judgment in a subsection
proceeding. A fee not to exceed(a)::!)
authorized by subsection (c) of section 143A,
article 6701d, V.T.C.S., is not violative of
any constitutional provision in a subsection
(a)(2) proceeding. The imposition of such
fee in a subsection (a)(l) proceeding is
unconstitutional.
J b
Very truly yo r ,
AA
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
p. 5913
Honorable Bob.Bullock - Page 10 (JM-1124)
JUDGE ZOLLIE STEAKLJZY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 5914