Case Information
*1 @ffice of tlje SZlttornep @enera1
Sbtate of QCexae January IO. 1996 AI-TORN’EY GENERAL
The Honorable David Brabhsm Opinion No. DM-372 Gregg County Criminal District Attorney
101 Bast h&hvin street, suite 333 Rez Whetheramunicipalcouttofrewtd Longvkw, Texas 75601 must impose wurt costs upon a juvenile
offender who participates in a “teen wurt” program (RQ-7’51) Dear Mr. Brabhanu
You ask whether a municipal wurt of record must impose, upon a juvenile offender who participates in a “teen court” program pursuam to Code of Criminsl Procedure (‘todew) article 45.55, any court costs other than the ten-dollar adnGstmtive fee that the wurt may impose under subsection (e) of that article. We believe that nothing in article 45.55 negates a court’s obligation or discretion to impose court costs that are chargeable by other law, except that for offenses committed on or a&r Sqtember 1.1995, the court is not rewired to charge any other wurt wsts, but it may do so.
You contend that the provision in subsection (e) for a maximum ten-dollar fee that a justice or municipal court may rewire of a person who requests a teen court progrsm operates to exclude the imposition of any other wurt costs. The first sentence of subsection (e) reads as follows: “The justice or municipal wurt may require a person who requests a teen court program to pay a fee-not to exceed SJO that is set by the court to cover the wsts of administeting this article.” The legishture thus expressed its intent that the ten-dollar fee is to cover the administmtive costs of a teen court program under article 45.55, not to cover other wurt costs. Article 45.55 is silent as to the imposition of other wlut costs.
You ibrther contend that this silence indicates legislative intent to disallow the imposition of any other wsts of wurt on 8 person who requests a teen court program under article 45.55 because code article 45.54(l) exprdy providw for the defendant’s “ppent of ail court costs” as a condition to the wmt’s authority to defbr prwwdings and grant probation under that article.’ Your tea.wning is that “[i]fthe Legislature had intended to assess wurt costs under Art. 45.55, it surely could have stated that rquirement clearly, as it did in Art. 45.54(l).”
We do not believe this reasoning is correct. Costs in criminal cases generally are not wkcted until after they are assessed as pert of the punishment, see Expcate Carson, 159 S.W.Zd 126, 129 (Tex. Crbn. App. 1942); see generu& Code Grim. Proc. ch. 102 (wntaining various provisions for costs payable by convicted defendant), so the purpose of the addition of the aforementioned language to article 45.54 is to speci@ that costs under that article must be paid bcfbre or ut the same time (LF the wurt grants def” and probation. &e Attomey General Opinion Jh4-526 (1986) et 5. Thus, the presence of an express provision for payment of costs in cuticle 45.54 has an independent signiticancc that makes it unnecusary to make (L stmined infkrenw that the legislature intended that costs not be chargeable in other articles where such a provision is absent.
A recent amendment to cuticle 45.55 makes clear that the legislature did not intend to disallow the imposition of other costs of court on a person who requests 8 teen court program under article 45.55. The Seventy-fourth Legislature added a new subsection (g) to article 45.55, see Act ofMay 27, 1995. 74th Leg., RS., ch. 598, 0 1, 1995 Tex. Sess. Law Serv. 3436, 3436, which applies only to offenses wmmitted on or after September 1. 1995. id. 8 2, at 3436, the eiTective date of the statute, id. 8 3. This subsection (gy provides as follows: “A justice or municipal court may exempt 8 defendant for whom proceed@ are defared under this article Tom the requirement to pay a court cost or fee that is imposed by another statute.” Id. 8 1. at 3436. This provision would be meaningless if other costs were not chargeable. Therefore, for offbnses wmmitted on or a&r September 1,1995, the court is nof required to charge any other court costs, but it mcry do so.
Fiily, you question whether the imposition of any court costs under article 45.55 would be wnstitutional in light of Attorney General Opiion JM-1124. In that opinion we held that another statutory provision, section 2 of the Seventy-6rst Legislature’s Senate Bii 1085, Act of May 28, 1989, 71st Leg.. RS., ch. 347, 1989 Tar. Gen. Laws 1316.
p. 2024 *3 TheHonorab1eDavidBnbha.m - Page 3
1317, was unconstitutional es applied to V.T.C.S. article 6701d, section 143A(s)(l), which grants discretion to rx court to defer criminal proceedings without the necessity of a plea, a judgment, or an application for deferral by the defwdant. Attorney General Opiion M-1124 (1989) at 6-7. In that opinion we explained the wnstitutional problem with Senate Bii 1085 as follows:
Under Senate Bii 1085 a person may be considered convicted [Act of where the “court defers tinal disposition of the case.” May 28, 1989,flst Leg., RS.. ch. 347. Q 2, 1989 Tex. Gen. Laws. 1316, 1317.1 If applied to subsection (a)(l) ofsection 143A of lrticle 6701d. the result would be that a judgment reflecting guilt of the defwdant would be entered without the defendant having received any semblance of a trial. Instead, under subsection (a)(l) the court merely defers procwdiigs to allow the defendant time to complete a driving s&y 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 cbumutwces is to deprive the defendant of propaty without due process of law. Such a procedure allows a wtiction to be entered against a defbndant without having afforded the defendant his wnstitutioneJ right to a trial.
Id.
Article 45.55 is easily distinguished from the staMe held unwnstitutional in Attorney General Opiion M-1 124. Subsection (a) of the article permits deferral end probation only if the defendant, among other thin&, “pleads nolo wntendere or guilty to the offense in open court with the defendant’s parent, guardii or managing conservator present,” Code Crim. Proc. art. 45.55(a)(2), end “presents to the wurt an oral or written request to attend a teen court program,” id. art. 45.55(a)(3). Thus the defendant may choose to go to trial; the defkndant is not forced to suffer punishment in the form of court costs without a trial, as was the cdse with the statutes analyzed in Attorney General Opiion IM-1124. Micle 45.55 therefore does not deprive the def’endant of property without due process of law.
P. [2025] SUMMARY Nothing in tuticle 45.55 of the Code of Criminal Procedure negates 8 court’s obli@on or discretion to impose court costs that 8re chmgeable by other baw, except that for offenses wmmitted on or 8&r September 1, 1995, the court is not rquired to charge any other court costs, but it may do so.
Attorney General of Texas JORGE VBGA
Fii Assistlnt Attorney Generll
SARAH J. SHIRLEY
Ch8ir, opinion Committee
Prepared by James B. Pinson
Assistant Attorney Geneml
P. 2026