THE ATTORNEY GENERAL
OF TEXAS
May 18, 1988
Honorable Randall L. Sherrod Opinion No. Jm-905
Criminal District Attorney
Randall County Re: Whether a Justice of the
501 16th Street Peace must collect a $75 fee
Canyon, Texas 79015 at the time a defendant's
fine is deferred under arti-
cle 45.54 of the Texas Code
of Criminal Procedure, and
related questions (RQ-1387)
Dear Mr. Sherrod:
You ask:
- (1) Must a justice court collect a fee of
$75 pursuant to art. 6701h, Section lC(b)
V.A.T.S., at the time payment of a Criminal
defendant's fine is deferred under article
45.54 of the Texas Code of Criminal Proce-
dure?
(2) May a justice court use monies
collected by it under article 6701h, Section
lC(e) V.A.T.S., in the same manner that a
prosecutor's office uses funds collected by
it under article 53.08 V.A.C.C.P.?
Section lC(b) of article 6701h, V.T.C.S., provides
In addition to the fine levied under
Subsection (a) of this section, a person
convicted of a violation of that subsection
shall pay a sum of Seventy-five Dollars ($75)
as costs of court to be collected in addition
to other taxable court costs at the same time
_- and in the same manner as fines and other
court costs.
p. 4469
Honorable Randall L. Sherrod - Page 2 (JM-905)
Article 45.54 of the Code of Criminal Procedure
provides in pertinent part:
(1) Upon conviction of the defendant of a
misdemeanor punishable by fine only, other
than a misdemeanor disposed of by Section
143A, Uniform Act Regulating Traffic
Highways (Article 6701d, V.T.C.S.), t::
justice may suspend the imposition of the
fine and defer final disposition of the case
for a period not to exceed 180 days.
. . .
(3) At the conclusion of the deferral
period, if the defendant presents satis-
factory evidence that he has complied with
the requirements imposed, the justice may
dismiss the complaint. Otherwise, the
justice may reduce the fine assessed or may
then impose the fine assessed. If the
complaint is dismissed, a special expense not
to exceed the amount of the fine assessed may
be imposed.
In Attorney General Opinion JR-526 (1986), it was
concluded that in an article 45.54 proceeding the court i
costs are payable at the time of conviction rather than at
the end of the deferral period when the complaint is
dismissed. The opinion noted that an exception to that rule
was the qlspecial expense" cost that section 3 authorizes "if
the complaint by express terms of the statute is dismissed."
A person must be convicted before article 45.54 is
applicable. A violation under 6701h is a finable violation
subject to the deferral of fine provisions of article 45.54.
Article 6701h provides for the collection of a fee of $75.00
at the time a person is convicted. There is no provision
for deferral of costs under article 45.54. Hence, costs are
collectable upon conviction.
In your second question you ask whether a justice court
may use fees collected under subsection (e), section 1C of
article 6701h in the same manner that a prosecutor‘s office
is authorized to use funds collected under former article
p. 4470
Honorable Randall L. Sherrod - Page 3 (JK-905)
53.08 of the Code of Criminal Procedure.1 Former article
653.08 of the Code of Criminal Procedure was repealed by
Acts 1987, 70th Leg., ch. 167, 54.01(b). The former
statute's provisions are now located at article 102.007 of
the Code of Criminal Procedure.
Subsection (e) of section 1C of article 6701h author-
izes the assessment of a fee at the time of dismissal of
proceedings. Subsection (e) states:
The court shall require payment of a Ten
Dollar ($10) fee before dismissing proceed-
ings under Subsection (a) of this section.
The fee collected by a municipal court under
this subsection shall be deposited in the
municipal treasury. The fee collected by
another court under this subsection shall be
deposited in the county treasury of the
county in which the court collecting the fee
is located. Money deposited under this
subsection mav be used bv the court that
collected the monev to defray exoenses
incurred in administerina this section.
(Emphasis added.)
Article 102.007 (former article 53.08) authorizes a
county attorney, district attorney, or criminal district :
attorney to collect a fee if his office processes a hot
check under certain circumstances. The statute further
provides that
(e) Fees collected under this article
shall be deposited in the county treasury in
a special fund to be administered by the
county attorney, district attorney, or
criminal district attorney. Expenditures
from this fund shall be at the sole
1. The 66th Legislature in 1979 enacted two different
statutes which were both codified as article 53.08 of the
Code of Criminal Procedure. Acts 1979, 66th Leg., ch. 604,
52 at 1335; Acts 1979, 66th Leg., ch. 734, 51 at 1802.
These two statutes have since been repealed and their texts
reenacted as sections 102.006 and 102.007 of the Code of
Criminal Procedure. Your question concerns the statute
which is now section 102.007 of the Code of Criminal
Procedure.
p. 4471
Honorable Randall L. Sherrod - Page 4 o-M-905)
discretion of the attorney, and may be used
only to defray the salaries and expenses of
the prosecutor's office. . . .
In Attorney General Opinion JR-738 (1987) the matter of
the expenditure of fees collected under this article was
discussed. In Attorney General Opinion JM-738 it was
stated:
This statute creates a special fund which
is in the county treasury, but which is
segregated from other county funds and ear-
marked for a specific purpose. More impor-
tantly, the statute states that the fund
is to be administered by county attorneys,
district attorneys, and criminal district
attorneys, and that, within the limits set
out therein. exoenditures from the fund
are to be made at their sole discretion.
(Emphasis added.)
Fees collected under article 102.007 (former article
53.08) may be expended at the discretion of the designated
prosecutors to defray the salaries and expenses of that --.
office. Attorney General Opinion JM-738. Expenditure of
fees collected by the justice court under subsection (e) of
section 1C of article 6701h are limited by the express terms
of the statute to defraying "expenses incurred in
administering this section."
SUMMARY
Article 45.54 of the Code of Criminal
Procedure makes no provision for deferral of
court costs and the $75.00 costs of court
authorized by section lC(b) of article 6701h,
V.T.C.S. are to be collected upon conviction.
Expenditure of fees collected under
subsection (e) of section 1C of article 6701h
may be expended by the court that collected
the money solely to "defray expenses incurred
in administering this section [failure to
maintain financial responsibility]."
JIM MATTOX
Attorney General of Texas ?
p. 4472
Honorable Randall L. Sherrod - Page 5 (JM-905)
MARY KELLER
First Assistant Attorney General
-
MU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STRAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 4473