Texas Comptroller of Public Accounts    STAR System





			THE ATTORNEY GENERAL
			     OF TEXAS


Jim Mattox
Attorney General	   December 27, 1989



Honorable Bob Bullock			Opinion 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, ^U 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





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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 citation 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-
	marked on or before the answer date
	on the citation, to take a course;

		(B) the court enters judgment on
	the person's plea of No Contest or
	Guilty at the time the plea is made
	but defers imposition of the judgment
	for 90 days;

		(C) the person has a valid Texas
	driver's license or permit;

		(D) (xxx) the person's driving
	record as maintained by the Texas
	Department of Public Safety does not
	indicate successful completion of a
	driving safety course under this
	subdivision within the two years
	immediately preceding the date of the
	alleged offense;

		(E) (xxx) the person files an
	affidavit with the court stating that
	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



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Honorable Bob Bullock - Page 3 (JM-1124)


		(F) (xxx) 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 (a0 of this section
	and a certificate of course completion
	approved by the department is accepted by the
	court, the court shall remove the judgment
	and dismiss the charge, but 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, ^U^U 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



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Honorable Bob Bullock- Page 4 (JM-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 form 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.  Id. 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. JM-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 convinced 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 1C(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




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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)(1) 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.  Id. 27.14(b); see Attorney
General Opinion JM-876 (1988).

	Unlike the procedure denounced in Attorney General
Opinion JM-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 143A9a)(2), appears to be a form of probation.  The
defendant enters a plea of guilty or no contest and judgment
is entered there. 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).




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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 Lopez v. State, 709 S.W.2d 744 (Tex. App. - San
Antonio 1986, pet. ref'd), the court rejected the
defendant's claimed violations of due process and equal
protection of the  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 Lopez had been granted
under 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 6701d) 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-
tin) 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)(1) 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.



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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 disposition of the case."
Acts 1989, 71st Leg., ch. 347, ^U 2, at 1317 (emphasis
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) (1) 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)(1) 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)(1).  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.  Id. at 5;  see
Attorney General 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 persons' plea
of No Contest or Guilty...."  V.T.C.S. art. 6701d,
^U 143A(a)(1)(B) (as amended by Senate Bill 1204, Acts 1989,
71st Leg., ch. 1105, ^U 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 JM-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




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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. Id.

	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 authoriza-
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 JM-441 by amending the statute
in Senate ill 515, Acts 1987, 70th Leg., ch. 1059, ^U 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 question of the constitutionality of the
administrative fee was neither raised nor addressed in 
Attorney General Opinion JM-441.

	The distinction between a subsection (a) (2) procedure
and the one denounced in Attorney General Opinion JM-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) (2). 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 cost" 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.
	Ex parte Carson, 159 S.W.2d 126 (Tex. Crim.
	App. 1942) ; Ex parte Mann, 46 S.W. 828 (Tex.
	Crim. App. 1989).  See also Attorney General
	Opinion JM-443 (1986).  Cf. 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
(c).



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Honorable Bob Bullock- Page 9 (JM-1124)



	(holding imposition of costs as punishment to
	be constitutional).

	Since the defendant in a subsection (a) (1) 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.


			S U M M A R Y


		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
	subsection (a)(2), section 143A, article
	6701d, V.T.C.S., 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
	subsection (a)(1), section 143A, article
	6701d, V.T.C.S., 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 (a)(2)
	proceeding.  A fee not to exceed $10
	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)(1) proceeding is
	unconstitutional.


				Very truly yours,


				J I M   M A T T O X
				Attorney General of Texas


MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General



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Honorable Bob Bullock - Page 10  (JM-1124)



JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General







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ACCESSION NUMBER: 8912A0977A05 
SUPERSEDED: N 
DOCUMENT TYPE: A 
DATE: 12/27/1989
TAX TYPE:  SALES