Can Texas add a $10 court cost in only some counties for the same crime?

Plain-English summary

The Comptroller asked whether a new court-cost scheme passed by the Legislature was constitutional. As part of a 1991 judiciary package (House Bill 66), section 51.702 of the Government Code let a county's commissioners court opt in, by resolution, to two charges: a $20 filing fee on each civil case in a statutory county court, and a $10 court cost on each criminal conviction in a statutory county court. The money went to a "judicial fund" that, in turn, helped pay a $25,000-per-year state contribution toward each statutory county court judge's salary. A county had to adopt the resolution by June 1 to start collecting on July 1.

The Attorney General concluded the $10 criminal court cost in subsection (b) was unconstitutional. The reason is a settled Texas rule: criminal court costs are treated as part of the punishment. Because section 51.702 applies only in counties that have a statutory county court and that choose to opt in, a person convicted of the same offense in an opt-in county would pay $10 more than a person convicted of the identical offense in a county that is ineligible or chooses not to participate. Making the penalty for a state-defined crime vary from county to county violates both due process and equal protection. The opinion lined the scheme up against a string of older Texas cases that struck down county-by-county differences in criminal penalties and costs, and against a more recent decision invalidating a statute that graded the same conduct differently in different cities.

The opinion stopped short on two related points. It declined to decide whether section 25.0015, the provision authorizing the state's $25,000 payment per judge, could survive on its own once the $10 cost (a large part of the judicial fund) was struck. The opinion noted the fund would likely fall short without that revenue and that it could not confidently say the Legislature would have kept the payments knowing part of the funding was invalid, but because some other funding source might be substituted, it would not yet rule on severability. As for the $20 civil filing fee in subsection (a), the opinion did not have to reach its constitutionality, because section 51.702(f) lets a commissioners court adopt only one resolution authorizing "the fees and costs under this section" as a package. With no way to adopt the civil fee without simultaneously adopting the invalid criminal cost, a commissioners court could not approve subsection (a) as the statute then stood.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Government Code provisions on statutory county courts and court costs have been substantially rewritten since 1992, and the V.T.C.S. articles referenced here have been recodified, so confirm the current statutes before relying on anything stated here.

Background and statutory framework

Section 51.702 was enacted as part of House Bill 66 of the 72d Legislature, a comprehensive judiciary package that set a uniform minimum jurisdiction and a minimum salary scale for statutory county court judges. Acts 1991, 72d Leg., ch. 746, § 67; see Gov't Code § 25.0015(a). The salary increase was funded mainly by the new fees and costs, which the county clerk collected and sent to the comptroller for deposit in the judicial fund. Subsection (b) required collection of $10 as a court cost "on conviction of any criminal offense in a statutory county court," including probation and deferred adjudication, and reaching convictions under the driver's-license and traffic statutes (Article 6687b and Article 6701d, V.T.C.S.) but not pedestrian or parking offenses.

The opinion's analysis turned on the rule that criminal court costs are part of the punishment, so they must be uniform statewide. The office had said as much in Attorney General Opinion JM-880 (1988): a law allowing different costs to be assessed in different counties for the same penal offense would let the penalty for state-defined crimes vary county to county and would violate both due process and equal protection. See also Attorney General Opinion JM-1120 (1989). That conclusion rested on a line of cases holding that a law fixing a greater punishment in one county than in others for violating a state law cannot stand. Ex parte Carson, 159 S.W.2d 126, 129 (Tex. Crim. App. 1942) (invalidating a statute that set $1.00 costs in criminal cases only in counties with eight or more district courts and three or more county courts); Ex parte Sizemore, 8 S.W.2d 134 (Tex. Crim. App. 1928) (invalidating a single-county road law allowing only fifty cents per day toward fines and costs where a general law allowed three dollars); see also Ex parte Ferguson, 132 S.W.2d 408 (Tex. Crim. App. 1939); Ex parte Mann, 46 S.W. 828 (Tex. Crim. App. 1898). More recently, Memet v. State, 642 S.W.2d 518, 525-26 (Tex. App.—Houston [14th Dist.] 1982, pet. ref'd), struck down section 5(c) of article 2372w, V.T.C.S., which made operating a sexually oriented business without a permit a class C misdemeanor in cities with a comprehensive zoning ordinance but a class B misdemeanor in cities without one, as a denial of due process and equal protection for prescribing different penalties for the same conduct in different cities.

Measured against those cases, the opinion found section 51.702(b) clearly invalid: it automatically imposed a greater punishment for the same offense in opt-in counties than in counties that had not adopted the scheme, whether by choice or because the scheme did not apply to them. So the subsection was constitutionally infirm on both due process and equal protection grounds.

On the remaining funding question, the opinion applied the severability standard recited in JM-880: an unconstitutional part of a statute need not bring down the rest unless the provisions are so connected, interdependent, or bound together that the Legislature would not have passed the law without the invalid part. See County School Trustees v. District Trustees of Prairie View Common School Dist. No. 8, 153 S.W.2d 434 (Tex. 1941). The opinion observed the struck $10 cost was a significant part of the judicial fund on which the state's $25,000-per-judge payments depended, and that the fund would likely fall short without it. But because an alternative funding mechanism might exist or become available, the opinion declined to decide whether section 25.0015 is severable from section 51.702. It also declined to reach the constitutionality of the $20 civil filing fee in subsection (a), since section 51.702(f)(1) lets a commissioners court adopt a single resolution authorizing "the fees and costs under this section," requiring the fees and costs to be adopted as a package; with no provision to adopt the civil fee without the criminal cost, a commissioners court was not empowered to approve subsection (a) as the statute stood.

Common questions

What did the opinion actually strike down?
The $10 criminal court cost in section 51.702(b). The opinion held it was ineffective on due process and equal protection grounds.

Why was a $10 court cost a constitutional problem?
Because in Texas criminal court costs count as part of the punishment, and the statute applied only in counties that opted in. That made the penalty for the same offense larger in some counties than others, which the courts treat as unequal punishment for a state crime.

Did the opinion kill the $20 civil filing fee too?
It did not rule on the civil fee's constitutionality. But because the statute required adopting both charges as a package, the opinion concluded a commissioners court could not adopt the $20 civil fee on its own while the criminal cost was invalid.

What happened to the state's $25,000 payment for each county-court judge?
The opinion did not decide. It noted the judicial fund would likely fall short without the struck cost, but because other funding might be substituted, it declined to rule on whether section 25.0015 was severable.

Citations

• Tex. Gov't Code § 51.702(a)-(f); § 25.0015; §§ 51.320, 51.321
• Acts 1991, 72d Leg., ch. 746, § 67 (House Bill 66)
• Article 6687b, V.T.C.S.; Article 6701d, V.T.C.S. (Uniform Act Regulating Traffic on Highways); Article 2372w, V.T.C.S.
• Ex parte Carson, 159 S.W.2d 126 (Tex. Crim. App. 1942)
• Ex parte Sizemore, 8 S.W.2d 134 (Tex. Crim. App. 1928)
• Ex parte Ferguson, 132 S.W.2d 408 (Tex. Crim. App. 1939)
• Ex parte Mann, 46 S.W. 828 (Tex. Crim. App. 1898)
• Memet v. State, 642 S.W.2d 518 (Tex. App.—Houston [14th Dist.] 1982, pet. ref'd)
• County School Trustees v. District Trustees of Prairie View Common School Dist. No. 8, 153 S.W.2d 434 (Tex. 1941)
• Tex. Att'y Gen. Ops. JM-880 (1988), JM-1120 (1989)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0123
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0123.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

June 9, 1992

Honorable John Sharp
Comptroller of Public Accounts
LBJ State Office Building
Austin, Texas 78774

Opinion No. DM-123

Re: Whether section 51.702 of the Government Code, which authorizes the commissioners court in each county to adopt a resolution requiring the payment of an additional $10.00 as court costs on conviction of a criminal offense, violates the Texas or United States Constitutions (RQ-332)

Dear Mr. Sharp:

You have requested our opinion regarding the constitutionality of that portion of section 51.702 of the Government Code, which relates to the payment of additional fees and costs in certain statutory county courts. That provision states:

(a) In addition to all other fees authorized or required by other law, the clerk of a statutory county court shall collect a $20 filing fee in each civil case filed in the court to be used for court-related purposes for the support of the judiciary.

(b) In addition to other court costs, a person shall pay $10 as a court cost on conviction of any criminal offense in a statutory county court, including cases in which probation or deferred adjudication is granted. A conviction that arises under Chapter 173, Acts of the 47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's Texas Civil Statutes), or a conviction under the Uniform Act Regulating Traffic on Highways (Article 6701d, Vernon's Texas Civil Statutes) is included, except that a conviction arising under any law that regulates pedestrians or the parking of motor vehicles is not included.

(c) Court costs and fees due under this section shall be collected in the same manner as other fees, fines, or costs are collected in the case.

(d) The clerk shall send the fees and costs collected under this section to the comptroller at least as frequently as monthly. The comptroller shall deposit the fees in the judicial fund.

(e) Sections 51.320 and 51.321 apply to a fee or cost collected under this section.

(f) This section applies only to fees and costs for a 12-month period beginning July 1 in a county in which the commissioners court:

   (1) adopts a resolution authorizing the fees and costs under this section for the 12-month period, and

   (2) files the resolution with the comptroller not later than June 1 immediately preceding the 12-month period during which the fees and costs are to be collected.

Section 51.702 was enacted by the last regular session of the legislature as part of House Bill 66, a comprehensive package relating to the judiciary. See Acts 1991, 72d Leg., ch. 746, § 67, at 2637, et seq. The bill establishes a uniform minimum jurisdiction and a minimum salary scale for statutory county court judges. See Gov't Code § 25.0015(a). The increase is funded primarily through the imposition of the additional fees and costs at issue here, which are collected by the county clerk and then transmitted to the comptroller for deposit in a "judicial fund." Participation in the scheme requires action by the commissioners court by June 1, 1992, and a county which adopts the plan is to begin collecting the fees on July 1, 1992. You ask about the constitutionality of the "court cost" imposed by subsection (b) of section 51.702.

Section 51.702(b) requires the collection of $10.00 as court costs "on conviction of any criminal offense in a statutory county court" in any county which has adopted the requisite resolution under section 51.702(f). Section 51.702, by its very nature, does not apply to any county which has no statutory county court. Thus, if any county selects to participate in the scheme under that section, such county will, after July 1, necessarily impose, for every conviction, a punishment which is greater, by $10.00, than a conviction for the same offense in a county which either is ineligible to participate in the statutory scheme, or elects not to do so.

In Attorney General Opinion JM-880 (1988), this office, in holding that costs imposed in misdemeanor cases involving state criminal statutes must be uniform statewide, declared:

In Texas, costs in misdemeanor criminal cases are assessed as part of the punishment. . . . A law allowing different costs to be assessed in different counties for the same penal offense would have the effect of allowing the penalty for state-defined crimes to vary from county to county and would violate both "due process" and "equal protection" constitutional rights.

Attorney General Opinion JM-880 at 3; see also Attorney General Opinion JM-1120 (1989). The opinion based this statement on a series of cases which had held that

a law that fixes a greater punishment in one county than in other counties for the violation of a state law cannot be upheld and is in contravention of constitutional inhibitions, both State and Federal.

Ex parte Carson, 159 S.W.2d 126, 129 (Tex. Crim. App. 1942).

In Carson, for example, the court held invalid a statute which provided for payment of $1.00 as costs in criminal cases in those counties having eight or more district courts and three or more county courts. In Ex parte Sizemore, 8 S.W.2d 134 (Tex. Crim. App. 1928), the court invalidated a road law applicable to one particular county, which allowed only the sum of fifty cents per day to be applied for the payment of fines and costs imposed in misdemeanor cases, while a general state law granted an allowance of three dollars per day in similar situations. See also Ex parte Ferguson, 132 S.W.2d 408 (Tex. Crim. App. 1939); Ex parte Mann, 46 S.W. 828 (Tex. Crim. App. 1898).

More recently, in Memet v. State, 642 S.W.2d 518 (Tex. App.--Houston [14th Dist.] 1982, pet. ref'd), the court struck down section 5(c) of article 2372w, V.T.C.S., a statute which provided that the offense of operating without a permit a sexually oriented commercial enterprise was a class C misdemeanor in any city with a comprehensive zoning ordinance, but a class B misdemeanor in any city without such an ordinance. The court declared that the statute was

unconstitutional as a denial of due process and equal protection for prescribing different penalties for the same conduct in different cities of the state.

642 S.W.2d at 525-26.

Under the test announced in Carson, Memet, and the other cited cases, section 51.702(b) is clearly invalid. It automatically imposes, in those counties which have adopted the statutory scheme of section 51.702, a punishment, for conviction of the same offense, which is greater than that imposed in those counties which have not adopted the statutory scheme, whether by choice or because the scheme is inapplicable to them. Consequently, section 51.702(b) must be deemed to be constitutionally infirm on both due process and equal protection grounds.

In Attorney General Opinion JM-880, this office said that

a statute found to be unconstitutional in part need not fall in its entirety if its provisions are not so connected in subject matter, so interdependent, or otherwise so bound together that it can be presumed the legislature would have passed the law devoid of its unconstitutional aspect, see County School Trustees v. District Trustees of Prairie View Common School Dist. No. 8, 153 S.W.2d 434 (Tex. 1941).

Attorney General Opinion JM-880 at 5.

We understand that the $10.00 "costs" which we have declared to be unconstitutional represent a significant portion of the "judicial fund" which the statute requires the comptroller to maintain. In turn, payment by the state of the $25,000 per year for each statutory county court judge is dependent upon the judicial fund. Since that fund will lack a substantial portion of its anticipated revenues, it is unlikely that there will be sufficient money therein to finance the state's monthly payments. We cannot confidently assert that the legislature would have directed the monthly payments in the specified amounts if it had known that a portion of the funding mechanism would be declared invalid. However, we have not been advised as to whether an alternative funding mechanism might exist or become available. Since other funding might, therefore, be substituted for that provided by section 51.702, we decline to speculate at this time as to whether section 25.0015 might be severable from section 51.702.

You also ask about the constitutionality of section 51.702(a), which requires the collection of a $20.00 filing fee for each civil case filed in a statutory county court. It is not necessary to address this question, since section 51.702(f)(1) contemplates a commissioners court's adoption of one resolution "authorizing the fees and costs under this section." (Emphasis added.) The statute requires adoption of the costs and fees as a package, and there is no provision for adopting the fees of subsection (a) in the absence of a simultaneous adoption of the costs of subsection (b). Thus, without regard to the constitutionality of section 51.702(a), a commissioners court is not empowered, as the statute presently stands, to approve that provision.

                             SUMMARY

      Section 51.702(b) of the Government Code, which authorizes a commissioners court to adopt a resolution requiring the payment of an additional $10.00 in court costs for each criminal conviction in a statutory county court, is ineffective on both due process and equal protection grounds. We do not decide whether section 25.0015, which authorizes payment by the state to each county of $25,000 for each statutory county court judge, is valid.

                                              Very truly yours,

                                              DAN MORALES
                                              Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General