Could a Texas judge decide how a probationer’s partial payment would be allocated among court costs, fees, and fines?

TX AG Opinion DM-0407: Who allocated a probationer’s court payments?

Plain-English summary

The Comptroller asked how a clerk should allocate a partial payment of court costs, fees, and fines made by a defendant placed on community supervision. The Attorney General concluded that Code of Criminal Procedure article 42.12 supplied a special rule for those defendants and displaced otherwise mandatory cost statutes to the extent of a conflict.

Section 11(a)(8) said that a judge “may include” payment of a fine and all court costs as a condition of community supervision. The opinion treated “may” as permissive: the judge could impose those obligations but did not have to impose court costs that another law ordinarily required upon conviction. Because article 42.12 expressly let the judge select conditions designed to protect or restore the community or victim and to punish, rehabilitate, or reform the defendant, the opinion concluded that Attorney General Opinion M-1076’s general pro-rata rule for incomplete cost payments did not govern this setting.

Section 19 created a distinct mandatory supervision fee. A judge generally had to set it between $25 and $40 per month and deposit it in a special county fund for facilities, equipment, and utilities of a community corrections facility. A judge could direct all collected fees to those section 19 purposes, but not beyond section 19’s maximum. Any excess had to be allocated to another purpose authorized by section 11(a).

The clerk’s role was ministerial when the sentencing judge had entered an allocation order. The clerk had to follow that order rather than substitute the Comptroller’s interpretation. The opinion did not address how a clerk should allocate a payment when no allocation order existed.

The opinion also overruled Attorney General Opinion MW-184 to the extent it conflicted. MW-184 had required immediate assessment of a separate statutory court cost after a probated conviction without considering the discretionary language that became section 11(a)(8).

Currency note

This opinion was issued in 1996. 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.

Who this opinion affected (as of 1996)

Sentencing judges: Article 42.12 allowed them to decide whether to impose most otherwise mandatory court costs as conditions of community supervision and how collected money would be allocated, subject to section 19’s separate requirements.

Court clerks: When an allocation order existed, clerks had to distribute the defendant’s payment according to that order. The opinion did not decide the no-order situation.

Community-supervision departments and county treasurers: Section 19 fees went to a special county-treasury fund for facilities, equipment, and utilities supporting a community corrections facility.

Defendants placed on community supervision: Most costs and fines depended on the conditions imposed by the sentencing court, while the section 19 supervision fee was treated separately.

Common questions

Did every otherwise mandatory court cost automatically apply to a probationer?
No. The opinion read section 11(a)(8)’s “may include” language to let the judge decide whether payment of those costs would be a condition of community supervision.

Did partial payments have to be divided pro rata under Opinion M-1076?
Not in the article 42.12 setting addressed by DM-0407. The opinion found express judicial allocation authority and therefore treated the M-1076 pro-rata rule as inapplicable.

Could all collected fees be directed to community-corrections facilities?
Yes, up to section 19’s maximum. Money above that limit had to be allocated to another section 11(a) purpose identified by the judge.

Could a clerk disregard the judge’s allocation order?
No. The opinion said the clerk had to allocate the payment according to the trial judge’s order.

What did DM-0407 overrule?
It overruled Opinion MW-184 to the extent MW-184 conflicted with the conclusion that section 11(a)(8) made otherwise mandatory court costs discretionary for a defendant placed on community supervision.

Background and statutory framework

Article 42.12 described community supervision as a court-controlled continuum of programs and sanctions. Section 1 placed responsibility for the conditions of community supervision within the state courts. Section 11(a) authorized reasonable conditions designed to protect or restore the community or victim, or to punish, rehabilitate, or reform the defendant; subsection (a)(8) listed payment of fines and court costs.

Section 19 separately required a monthly fee and directed it to a special county fund supporting a “community corrections facility,” a term defined by Government Code section 509.001(1). The opinion distinguished that required fee from costs and fines a court could impose under section 11.

The Comptroller relied on Opinion M-1076, which had said that partial court-cost payments generally should be prorated unless one cost had statutory priority. DM-0407 accepted that general rule but found it outside the special authority conferred by article 42.12.

The opinion relied on the 1965 addition of “all court costs” to article 42.12’s predecessor. Contemporary commentary and Ex parte Morgan and Ex parte Sethers supported the conclusion that costs could be made a condition of probation rather than an automatic immediate obligation. That history also exposed the conflict with MW-184.

Citations

Statutes:

• Tex. Code Crim. Proc. arts. 42.11, 42.12, 56.55, 102.001-.017, 102.051-.056, 102.081, 102.085
• Tex. Gov’t Code §§ 56.001, 76.001, 415.082, 509.001
• Tex. Penal Code § 12.35
• V.T.C.S. arts. 6701c-3, 6701d, 8309-1

Cases:

• Ex parte Morgan, 262 S.W.2d 728 (Tex. Crim. App. 1953)
• Ex parte Sethers, 209 S.W.2d 358 (Tex. Crim. App. 1948)

Related opinions:

• Tex. Att’y Gen. Ops. M-1076 (1972); MW-184 (1980); V-649 (1948); O-1792 (1940); O-755 (1939); O-469 (1939); V-415 (1947)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0407
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0407.pdf

Original opinion text

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

State of Texas

DAN MORALES

ATTORNEY GENERAL

July 29, 1996

The Honorable John Sharp
Comptroller of Public Accounts
LBJ State Office Building
P.O. Box 13528
Austin, Texas 78711-3528

Opinion No. DM-407

Re: Whether a trial judge who, in accordance with Code of Criminal
Procedure article 42.12, places a defendant on community supervision may allocate
money the defendant is to pay as fees, costs, and fines as the judge chooses and
related question (RQ-802)

Dear Mr. Sharp:

You have requested our opinion regarding the allocation of payments of certain
state court costs, fees, and fines. You refer to certain court costs and fees a defendant is
required by statute to pay upon conviction of an offense. For example, section 415.082(a)
of the Government Code requires a convicted defendant to pay “as court costs $1.50 in
addition to other taxable court costs,” which amount is to be deposited into the Bill
Blackwood Law Enforcement Management Institution of Texas fund in the state treasury.
Similarly, section 56.001(b) of the Government Code requires a convicted defendant to
pay $1, in addition to other court costs, which amount is to be deposited into the judicial
and court personnel training fund in the state treasury. See also Gov’t Code § 56.001(a).
A convicted defendant also must pay a security fee as a cost of court, which the recipient
county is to deposit into its courthouse security fund. Code Crim. Proc. art. 102.017.
Numerous other statutes require the payment of similar fees and costs upon the conviction
of a defendant.1

1See, e.g., Code Crim. Proc. arts. 56.55 (requiring defendant to pay, on conviction, court costs of
set amount), 102.001(b) (requiring defendant to pay fee for mileage required of peace officer in
connection with defendant, e.g., conveying convicted defendant to county jail), .002(c) (deeming
convicted defendant liable for fees for witnesses in defendant’s case), .003 (requiring defendant convicted
in county court or county court at law to pay trial fee of $10), .004(a) (requiring defendant convicted by
jury to pay jury fee), .005(a) (requiring defendant convicted in county court, county court at law, or district
court to pay fee of $40 for services of clerk of court), (c) (requiring convicted defendant whose driver’s
license is automatically suspended to pay fee of $10 to clerk of court), (d) (requiring defendant convicted
in county court, county court at law, or district court to pay fee of $10 for records management and
preservation services), .008 (generally requiring defendant convicted of misdemeanor or gambling offense
to pay fee of $25 for services of district or county attorney), .011 (requiring defendant convicted of felony
or misdemeanor to pay fees for certain services performed in case by peace officer), .013(a), (e) (requiring
defendant convicted of offense other than misdemeanor punishable by fine only to pay fee of $2 for benefit
of crime stoppers assistance account), .015(a) (requiring defendant convicted of certain misdemeanors to
pay court cost of $2.50), .016(a), (h) (requiring defendant convicted of certain offenses under Penal Code
chapter 49 to pay court cost of $30 to help defray costs of maintaining certified alcohol breath testing
program), .017(a) (requiring court to impose costs attendant to intoxication convictions), .051(a) - (c),

Additionally, you state that a court may order a convicted defendant to pay other
fees or fines. Unfortunately, you continue, a convicted defendant often does not or cannot
pay all of the court costs and fines that are required by law to be paid or that are assessed
by the court. In cases in which a convicted defendant pays only part of the costs, fees, and
fines, you indicate that courts, clerks of court, and your office are uncertain as to how to
handle the money that is actually received. You therefore ask how the clerk of the
sentencing court should allocate the payment made by the defendant.2 You also ask
whether a trial judge may allocate the payment collected from the defendant entirely for
the purpose set forth in article 42.12, section 19(b). We will consider your questions in
reverse order.

You included with your letter an inquiry, which apparently motivated your request
to this office, that you received from the chair of the Judicial Advisory Council to the
Texas Board of Criminal Justice and the Community Justice Assistance Division of the
Department of Criminal Justice. The writer declares that his interest is limited only to
those convicted defendants whom the trial judge places on community supervision. We
will, accordingly, limit our response to costs, fees, and fines received from a convicted
defendant who is placed on community supervision.

Article 42.12 of the Code of Criminal Procedure pertains to community
supervision. The term “community supervision” denotes

the placement of a defendant by a court under a continuum of
programs and sanctions, with conditions imposed by the court for a
specified period during which:

(A) criminal proceedings are deferred without an adjudication
of guilt; or

(footnote continued)

.055 (requiring certain defendants to pay misdemeanor and felony costs to benefit criminal justice
planning fund), .081(a) - (b), .085 (requiring defendant convicted under V.T.C.S. arts. 6701d, 6701c-3, to
pay specified court costs to benefit comprehensive rehabilitation fund).

2We understand you to ask, by this question, whether the clerk of a sentencing court may disobey
the trial judge’s order allocating the defendant's payment and instead allocate costs consistently with your
interpretation of the statutes. We do not address how a clerk must allocate the defendant’s payment in the
absence of a court order allocating the payment.

3The legislature amended article 42.12 in 1993 to change the terms “probation” and “deferred
adjudication” to “community supervision.” See Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 4.01,
1993 Tex. Gen. Laws 3586, 3716-42. The Seventy-third Legislature desired to “replace the concepts of
probation and deferred adjudication with a single program of community supervision.” House Research
Org., Bill Analysis, S.B. 1067, 73d Leg., R.S. (1993). Any reference in law to “probation” or “deferred
adjudication” means “community supervision.” See Act of May 29, 1993, 73d Leg., R.S., ch. 900,
§ 4.04(a), 1993 Tex. Gen. Laws 3586, 3743.

(B) a sentence of imprisonment or confinement, imprisonment
and fine, or confinement and fine, is probated and the imposition of
sentence is suspended in whole or in part.4

Code Crim. Proc. art. 42.12, § 2(2) (footnote added).

Section 1 of article 42.12 declares as the purpose of the article

to place wholly within the state courts the responsibility for
determining when the imposition of sentence in certain cases shall be
suspended, the conditions of community supervision, and the
supervision of defendants placed on community supervision, in
consonance with the powers assigned to the judicial branch of this
government by the Constitution of Texas. It is the purpose of this
article to remove from existing statutes the limitations, other than
questions of constitutionality, that have acted as barriers to effective
systems of community supervision in the public interest.

In furtherance of this purpose, section 3(a) of article 42.12 authorizes a judge to suspend
the imposition of a defendant’s sentence if the judge considers the suspension to be “in the
best interest of justice, the public, and the defendant.” A judge who decides to suspend
the defendant’s sentence may place the defendant on community supervision, with or
without imposing a fine applicable to the offense. Id. § 3(a). In certain circumstances, a
defendant is ineligible for community supervision.5 See id. §§ 3(e), 3g(a).

Article 42.12, section 11(a) requires the judge of the court having jurisdiction of
the case to set the conditions of community supervision for each particular defendant.

The judge may impose any reasonable condition that is designed
to protect or restore the community, protect or restore the victim, or
punish, rehabilitate, or reform the defendant. Conditions of

4A judge must suspend the imposition of the sentence and place a defendant on community
supervision if the jury properly makes such a recommendation in its verdict. Code Crim. Proc. art. 42.12,
§ 4(a). A judge also may place a defendant under community supervision after deferring adjudication of
guilt. Id. § 5(a).

5Specifically, a defendant is ineligible for community supervision if the defendant is sentenced to
a term of imprisonment greater than ten years or is sentenced to a term of confinement under Penal Code
section 12.35 (state jail felony). Code Crim. Proc. art. 42.12, § 3(e). In addition, a defendant who is
convicted of the following offenses is ineligible for community supervision: murder, capital murder,
indecency with a child, aggravated kidnapping, aggravated sexual assault, or aggravated robbery. Id.
§ 3g(a)(1). A defendant is ineligible if the defendant knowingly used or exhibited a deadly weapon during
the commission of a felony or flight or aided in the commission of the felony and knew that a deadly
weapon would be used or exhibited. Id. § 3g(a)(2). Such an ineligible defendant may be released to
community supervision after serving sixty days in the custody of the Texas Department of Criminal
Justice’s institutional division. Id. § 3g(b).

community supervision may include, but shall not be limited to, the
conditions that the defendant shall:

(8) Pay his fine, if one be assessed, and all court costs whether a
fine be assessed or not, in one or several sums.

Section 19 of article 42.12 pertains specifically to fees. Subsection (a) generally
requires a judge granting community supervision to order the defendant to pay to the
court a fee “of not less than $25 and not more than $40 per month” during the community
supervision period. Code Crim. Proc. art. 42.12, § 19(a). The judge must deposit the fee
into a special fund in the county treasury, to be used to provide facilities, equipment, and
utilities for a community corrections facility.6 Id. § 19(b). Section 19 authorizes or
requires a court to order a fee in other situations. See id. § 19(c), (e), (g) (pertaining to
defendant placed under supervision pursuant to Uniform Act for out-of-state probationer
and parolee supervision, Code Crim. Proc. art. 42.11; certain articles of Penal Code; and
defendant required to register as sex offender). Section 19 also provides that, “[f]or the
purpose of determining when fees due on conviction are to be paid to any officer or
officers, the placing of the defendant on community supervision shall be considered a final
disposition of the case, without the necessity of waiting for the termination of the period
of community supervision.”7 Id. § 19(d).

6Government Code section 509.001(1) defines “community corrections facility” as

a physical structure, established by a judicial district after authorization of the
establishment of the structure has been included in the local community justice
plan, that is operated by a [community supervision and corrections department
established under Government Code chapter 76 (a “department”)] or operated for
a department by an entity under contract with the department, for the purpose of
confining persons placed on community supervision and providing services and
programs to modify criminal behavior, deter criminal activity, protect the public,
and restore victims of crime. The term includes:

(A) a restitution center,

(B) a court residential treatment facility;

(C) a substance abuse treatment facility;

(D) a custody facility or boot camp;

(E) a facility for an offender with a mental impairment. . . ;
(F) an intermediate sanction facility; and

(G) a state jail felony facility.

7See Attorney General Opinion V-649 (1948) at 1 (providing that substance of what is now Code
Crim. Proc. art. 42.12, § 19(d) “makes plain that all... fees become due and payable at the time the
defendant is placed on probation so that process may issue therefor... . The assessment and collection of
costs is not affected by placing the defendant on probation”).

In a situation in which a defendant cannot afford to pay all of the costs, fees, and
fines that the statutes require or authorize a court to exact from a convicted defendant,
your office distinguishes between those costs, fees, and fines that you believe are
mandatory and those that are discretionary. In your view, a cost, fee, or fine that a
statute, including article 42.12, requires a court to charge a convicted defendant has
priority over a cost, fee, or fine that a statute authorizes, but does not require, a court to
charge a convicted defendant. You believe that a court may not waive a mandatory cost,
fee, or fine in favor of a discretionary cost, fee, or fine. You further maintain that, in
the event of a shortfall, all mandatory costs must be pro rated.

You base your interpretation of the law on Attorney General Opinion M-1076. In
that opinion, this office considered whether, when a convicted defendant pays only part of
the court costs, the Criminal Justice Planning Fund is allocated all or part of the
defendant’s payment before monies due various county departments are allocated.
Attorney General Opinion M-1076 (1972) at 1. As the opinion stated, the Criminal
Justice Planning Fund, which is now established in Code of Criminal Procedure chapter
102, subchapter B, provides for convicted defendants to pay a cost of court for the
“establishment and maintenance of the criminal justice system.” Id. at 2; see Code Crim.
Proc. art. 102.056.

The opinion notes that the statutory predecessor to chapter 102, subchapter B of
the Code of Criminal Procedure “authorizes certain fees to be collected as a cost of
court,”8 but the statute does not provide these fees priority over other costs of court.
Attorney General Opinion M-1076 (1972) at 2. In addition, the opinion continues, the
statute does not expressly authorize a court to prorate the costs should a convicted
defendant pay only a portion of the costs due. Id.

The opinion cited three prior opinions9 addressing a situation in which a court
collected from the convicted defendant only a portion of the fine and costs. Id. at 3. In
such a situation, “such money as collected should go the payment of the costs and the
balance, if any, to the payment of the fine.” Id. If, however, a court does not collect
enough to pay all of the costs, “the money should be pro rated” unless one cost has
priority over another. See id. at 3.

Given the lack of an express legislative directive to the contrary, Attorney General
Opinion M-1076 determined that costs taxed and owed to the Criminal Justice Planning
Fund have no priority over other costs of court. Id. In the event a defendant satisfies only
a portion of the costs with cash, court costs, including those due the Criminal Justice
Planning Fund, must be pro rated. Id.

8But see Code Crim. Proc. art. 102.051(a) - (c) (providing that convicted defendant “shall” pay
court cost allocated to Criminal Justice Planning Fund).

9See Attorney General Opinions O-1792 (1940), O-755 (1939), O-469 (1939).

We have no reason to believe that Attorney General Opinion M-1076 incorrectly
states the law. Nevertheless, we do not believe it applies to costs, fees, and fines imposed
upon a convicted defendant whose sentence is suspended and who is placed on community
supervision in accordance with article 42.12 of the Code of Criminal Procedure. Notably,
Attorney General Opinion M-1076 found no express statutory directive to warrant
satisfying the payment to the Criminal Justice Planning Fund over other required costs and
fees. With respect to article 42.12, on the other hand, we find express authorization for a
judge to impose and allocate costs, fees, and fines as the judge feels will “protect or
restore the community, protect or restore the victim, or punish, rehabilitate, or reform the
defendant.” See Code Crim. Proc. art. 42.12, §11(a). Because of its express
authorization, article 42.12 falls outside of the scope of the pro rata rule developed in
Attorney General Opinion M-1076.

Article 42.12, section 11(a) of the Code of Criminal Procedure explicitly provides
that the judge “may include” in the court order a mandate that the defendant pay a fine
“and all court costs.” Code Crim. Proc. art. 42.12, § 11(a)(8). The statute’s use of the
word “may” indicates that the judge is permitted to include such a term in the court’s
order, but the judge is not required to do so. See BRYAN A. GARNER, A DICTIONARY OF
MODERN LEGAL USAGE 354 (1987); BLACK’S LAW DICTIONARY 883 (5th ed. 1979); 67
TEX. JUR. 3D Statutes § 103, at 680 (1989). The plain language of section 11 thus does
not require a judge to order a convicted defendant placed on community supervision to
pay court costs, which are otherwise statutorily required.9

In our opinion, therefore, article 42.12, section 11 prevails over statutes other than
article 42.12 that require a convicted defendant to pay certain costs, fees, and fines. The
costs, fees, and fines that a court may include in its order under section 11(a)(8) are
distinguishable from those fees that, pursuant to section 19, a court must impose upon a
defendant placed on community supervision. The fees collected pursuant to section 19(a),
which the judge must fix between $25 and $40 per month (unless the judge waives or
reduces the fee), must be deposited into a special fund in the county treasury to be used to
provide facilities, equipment, and utilities for a community corrections facility. See Code
Crim. Proc. art. 42.12, § 19(a), (b).

We believe the legislative history of article 42.12, section 11(a)(8) supports our
conclusion regarding the discretionary nature of court costs, fees, and fines other than the
fees required by article 42.12, section 19. The language now found in subsection (a)(8) is,
for our purposes, identical to that found in 1965 amendments to Code of Criminal

9Several of the statutes that require a convicted defendant to pay a cost or fee, see supra note 1,
explicitly define conviction to include a case in which the defendant receives probation. See, e.g., Gov't
Code §§ 56.001(b), 415.082(c)(2); Code Crim. Proc. arts. 56.55(c)(2); 102.013(b)(2), .015(6)(2),
.016(c)(2), .017(a) - (b), (c)(2), .051(f)(2), .081(d)(2). But see supra note 3 (stating that reference in law
to “probation” means “community supervision”). As a result of our conclusion today, we believe that
article 42.12, section 11(a) prevails over these statutes to the extent they appear to require a convicted
defendant who is placed on community supervision to pay the costs and fees.

Procedure article 42.12, section 6(h). Prior to the 1965 amendments, article 42.12,
section 6(h) provided in pertinent part as follows:

The court having jurisdiction of the case shall determine the
terms and conditions of probation and may at any time during the
period of probation alter or modify the conditions and may include,
but shall not be limited to, the conditions that the probationer shall:

h. Pay his fine, if one be assessed, in one or several sums. . . .10
[Footnote added. ]

In 1965 the legislature amended the Code of Criminal Procedure by “revising and
rearranging the statutes of this State” pertaining to criminal cases “and by making various
changes in, omissions from, and additions to such statutes. See Act of May 27, 1965, 59th
Leg., R.S., ch. 722, 1965 Tex. Gen. Laws 317, 317 (caption of bill). The legislation was
based on a completely revised code drafted by a committee of the State Bar of Texas.
Fred Erisman, “Introduction to 1965 Revision Texas Code of Criminal Procedure,” 1
Code Crim. Proc. xv-xxxv. As part of its revisions, the legislature amended section 6(h)
to add the phrase “all court costs whether a fine be assessed or not.” See John F. Onion,
Jr., Commentary on the Revised Code of Criminal Procedure, 28 TEX. B.J. 727, 809
(1965).

In his contemporary commentary on the revised Code of Criminal Procedure,
John F. Onion, Jr., a member of the bar committee that drafted the proposed code,
included the change to section 6(h) in his listing of those provisions “in which there has
been some material change.” Id. at 727. Judge Onion states that the legislature amended
section 6(h) “to remove any questions about when costs were to be paid... and clearly
permit[] payment of court costs as a condition of probation, including cost of an appointed
counsel.” Id. at 809.

Judge Onion cites article 42.12, section 11 of the Code of Criminal Procedure and
two cases as background for his suggestion that, prior to 1965, article 42.12 was unclear
about when costs must be paid. At that time, article 42.12, section 11 provided as
follows:

For the purpose of determining when fees are to be paid to any
officer or officers, the placing of the defendant on probation shall be
considered a final disposition of the case, without the necessity of

10Code Crim. Proc. art. 42.12, § 6(h), amended by Act of May 27, 1965, 59th Leg., R.S., ch. 722,
sec. 1, § 6(h), 1965 Tex. Gen. Laws 317, 491, renumbered by Act of May 26, 1985, 69th Leg., R.S., ch.
554, § 1, 1985 Tex. Gen. Laws 2155, 2155, renumbered by Act of May 29, 1989, 71st Leg., R.S., ch. 785,
art. IV, sec. 4.17, § 11(a)(8), 1989 Tex. Gen. Laws 3471, 3505, amended by Act of May 27, 1993, 73d
Leg., R.S., ch. 806, § 2, 1993 Tex. Gen. Laws 3207, 3209, amended by Act of May 29, 1993, 73d Leg.,
RS., ch. 900, § 4.01, 1993 Tex. Gen. Laws 3586, 3725.

waiting for the termination of the period of probation or suspension
of sentence.11 [Footnote added. ]

In both cases Judge Onion cites, Ex parte Morgan, 262 S.W.2d 728 (Tex. Crim. App.
1953), and Ex parte Sethers, 209 S.W.2d 358 (Tex. Crim. App. 1948), the Texas Court of
Criminal Appeals determined that a defendant who had satisfied a probated sentence
nonetheless may be incarcerated if the defendant had failed to satisfy costs of court. See
Ex parte Morgan, 262 S.W.2d at 729; Ex parte Sethers, 209 S.W.2d at 359-60.

Considering Judge Onion’s comments together with the statutory provision and
cases he cites, we believe the legislature intended the 1965 amendment to the forerunner
to article 42.12, section 11(a)(8) to make clear that a defendant whose sentence was
probated was not required to pay otherwise mandatory court costs immediately upon
conviction. Rather, the amendment makes clear that the imposition of court costs was a
condition that the sentencing judge may order as a condition of probation.12

Moreover, our interpretation of section 11(a) is consistent with the express
purpose of the statute: “to place wholly within the state courts the responsibility for
determining . . . the conditions of community supervision.”13 Code Crim. Proc. art. 42.12,
§ 1. Conversely, a contrary conclusion would require a trial judge to impose costs that the
judge may not believe will “protect or restore the community, protect or restore the
victim, or punish, rehabilitate, or reform the defendant.” See id. § 11(a).

Our conclusion here obligates us to reconsider Attorney General Opinion
MW-184, however. In that opinion, this office addressed the collection of a court cost
assessed for the benefit of the Compensation to Victims of Crime Fund, created by article
8309-1, V.T.C.S., from a convicted felon whose sentence was probated. Attorney

11Today, the substance of this section is found in article 42.12, section 19(d), although the word
“probation” has been changed to “community supervision.” See supra note 3 (discussing change from
“probation” to “community supervision”).

12One could construe these cases and Judge Onion’s commentary to indicate that section 11(a)(8)
permits a court to determine only when and in what size payments a defendant must pay costs of court,
rather than whether a defendant must pay costs of court. The plain language of section 11(a), as well as
section 1, of article 42.12 disputes this interpretation, however.

13Since 1957 article 42.12 and its predecessor have had, as their purpose, “to place wholly within
the state courts... the responsibility for determining . . . the conditions of probation.” Compare Act of
April 30, 1957, 55th Leg., R.S., ch. 226, § 1, 1957 Tex. Gen. Laws 466, 466 with Code Crim. Proc. art.
42.12, § 1. Also since 1957, article 42.12 and its predecessor have listed as a purpose of the act “to
remove from existing statutes the limitations, and questions of constitutionality, that have acted as barriers
to effective systems of probation and parole in the public interest.” Compare Act of April 30, 1957,
55th Leg., R.S., ch. 226, § 1, 1957 Tex. Gen. Laws 466, 466 with Code Crim. Proc. art. 42.12, § 1. In
Attorney General Opinion V-415 (1947) this office questioned the constitutionality of several provisions
of the Adult Probation and Parole Law, which, with respect to the provisions relating to probation, served
as the statutory predecessor to article 42.12.

General Opinion MW-184 (1980) at 1. According to the opinion, article 42.12, section
3(a) authorized a judge, after he or she had received a conviction or guilty plea,14 to
suspend the imposition of sentence. Id. at 2.

The opinion therefore reasoned that, under article 42.12, an adjudication of guilt,
either by conviction or plea, results in a final conviction. Id. at 3. In a case probated
under article 42.12, consequently, a court should assess costs, even a cost required by
another statute, upon final conviction. Id.

Although Attorney General Opinion MW-184 was written after 1965, when the
legislature added the phrase “all court costs” to what is now article 42.12, section
11(a)(8), it did not consider the statutory predecessor to section 11(a)(8). We hereby
overrule Attorney General Opinion MW-184 to the extent it conflicts with our conclusion.

SUMMARY

Article 42.12, section 11 of the Code of Criminal Procedure
prevails over other statutes requiring a convicted defendant to pay
certain costs, fees, and fines. Of course, section 19(a) of article
42.12 requires the judge to fix a fee to be allocated towards the cost
of providing facilities, equipment, and utilities for a community
corrections facility.

Pursuant to article 42.12, section 11(a)(8) of the Code of
Criminal Procedure, the court with jurisdiction over a convicted
defendant who is being placed on community supervision may, but
need not, impose upon the defendant a requirement that the
defendant pay court costs that are otherwise statutorily required. A
trial judge may order that fees collected from a defendant placed on

community supervision be allocated entirely for the purposes set
forth in article 42.12, section 19. The total amount of the fees
allocated for the purposes articulated in section 19 may not exceed
the maximum stated in that section, however. Any amount collected
that is greater than that permitted in section 19 must be allocated to
other purposes the judge has found will protect or restore the
community, protect or restore the victim, or punish, rehabilitate, or
reform the defendant. Furthermore, the clerk of a sentencing court
must allocate the payment made by the defendant who is placed on
community supervision in accordance with the trial judge’s order.

14Currently, article 42.12, section 3(a) includes plea of nolo contendere as a trigger for judge-
ordered community supervision.

Attorney General Opinion MW-184 (1980) is overruled to the
extent it conflicts with this opinion.

Yours very truly,

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General