Untitled Texas Attorney General Opinion

TEXEATTOWNEY GENERAL OF TEXAS 3-e-

Honorable Bruce L. Miller Opinion NO. (c-648) County Attorney Deaf Smith County Re: Assessment of fine, court Hereford, Texas costs, and costs of proba- tion under the Misdemeanor Dear Mr. Miller: Probation Law of 1966. In an opinion request of this office you pose the following questions: When a person Is placed on probation In accordance with the terms of the Misdemeanor Probation Law of 1966, Article 42.13, Code of Criminal Pro- cedure, 1966, may the court cause the collection of the fine and costs assessed against the defendant prior to the time the probation Is revoked. When a person,is place~dupon pro- bation in accordance with the terms of Article 42.13 may the court collect monthly payments from said person for the costs of probation. Your first question is answered in the affirmative and a court, after placing a defendant on probation, in . accordance with the terms of Article 42.13, may legally cause the collection of such fine and costs as the court may order prior to the revocation, if any, of said probation. It is first noted that before any person may be granted a pro- bation under the terms of this act, he must first apply in writing to the court for said probation. In other words, he must ask for it. By so doing, said person certainly impliedly agrees to accept at least those terms of proba- tion ordered by the court which are in accord with Section 5 of Article 42.13. One of those terms is a6 follows: " ("1 .The terms fif probation 7 must'lnclude, but aYe not limiter to the requirements that a pro- bationer:

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Honorable Bruce L. Miller, page 2 (c- 648)

(8) Pay his fine, if the court so order-eand, if c,nebe assessed, in one or several sums, a 1 e" It is our opinicn, therefore, that since the defen- dant who is requesting probation agrees to abide by the terms of the probation 2s ordered by the COLD% and authorized by Article 42,13, a cour,tmay legally cause the collection of any fine prior to revocation of said probation. It is also our opinion that the court may require the collection of coats prior to the revocation of said probation. In Ex Parte Sethers, 209 S.W. 2d 358(Tex. Crim. 1948) the Probation and Parole Law which required that the placing of the defendant on probation shall be considered final disposition of the case for the purpose of determining when fees are payable to any officer means that proper court costs must be paid before a defendant can be released on probation after conviction. We of course realize that the statutes are,notidentical, but we believe that the same reasons apply here as it did in Ex Parte Sethers. Your second question is answered in the negative. We find no provision in the Code of Criminal Procedure o? any other statute permitting costs of probation to be assessed e,renot limit,edto those set out in Article Li2.13Section r 2" However, since we are unable to find any authority for a court to assess such costs against defendant.under any circumstances, it is our opinion .thatsuch costs of proba- tion may not be assessed against a defendant. This would, in effect, allow a court to increase the penalty fcr a violation of the law, to an amount greater than that provided by the Legislature. S UMS4AR.Y ------- After placing a defendant on probation in accordance with Article 42-13, C.C.P., the court may legally cause the collection of any fine and costs prior to revocation of such probation. Under these same circum- stances, a court may not legally collect monthly payments from said defendant to cover the costs of probation. Yours very truly, WAGGONER CARR Attorney General of Texas

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Honorable Bruce L. Miller, page 3 (c-648)

BY K 11 0 A%.s&nE'Attorney General

SK/lb APPROVED OPINION COMMITTEE W. V. Geppert, Chairman Lonny Zwlener Robert E. Owen w. 0. ShUliz Thomas Mack APPROVED FOR THE ATTORNEY GENERAL BY: T. B. Wright,