Can a Texas justice of the peace defer a Parks and Wildlife violation and charge a fee the county keeps instead of a fine?

TX AG Opinion GA-0745: Can a justice of the peace defer a Parks and Wildlife charge and impose a fee the county keeps?

Plain-English summary

Grimes County Auditor Sidney "Buck" LaQuey thought he saw a conflict between two statutes. One, article 45.051 of the Code of Criminal Procedure, lets a justice of the peace defer proceedings in a fine-only misdemeanor case (hold off on a finding of guilt, put the defendant on probation) and impose a "special expense fee" that the county keeps. The other, section 12.107 of the Parks and Wildlife Code, says that when a court imposes a fine for a Parks and Wildlife violation, the officer who receives the fine has to send a set percentage of it to the Parks and Wildlife Department. The auditor asked: can a JP defer a Parks and Wildlife charge and impose a special expense fee without assessing a fine at all, and if so, does any of that fee go to the Department?

The opinion answered both parts in the county's favor. On the first, the two statutes do not actually conflict. Section 12.107 does not require that a fine be imposed for a Parks and Wildlife violation, and nothing in it strips a JP of the deferral power that article 45.051 gives in every fine-only misdemeanor case (the deferral statute has no exception for Parks and Wildlife cases). Read together, section 12.107 simply means that when a fine is in fact imposed, the set percentage goes to the Department. So a JP may defer a Parks and Wildlife charge and impose a special expense fee instead of a fine.

On the second part, a special expense fee is not a fine. The 2009 Legislature had amended article 45.051 to remove the old language ("not to exceed the amount of the fine assessed") that had prompted the auditor's worry that a fine must accompany the fee. Under the statute, the fine is what marks a conviction, imposed only if the defendant fails to comply with the deferral conditions; the special expense fee is something different. Because section 12.107 reaches only a "fine imposed by a court for a violation," and a special expense fee is neither a fine nor a conviction, none of the special expense fee has to be sent to the Parks and Wildlife Department.

Currency note

This opinion was issued in 2009. 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.

Article 45.051 of the Code of Criminal Procedure and section 12.107 of the Parks and Wildlife Code have both been amended in the past, and the opinion itself turned on a 2009 amendment to article 45.051. Confirm the current text of both statutes before relying on this analysis.

Who this opinion affected (as of 2009)

Justices of the peace: The opinion described a JP's authority to defer a Parks and Wildlife Code charge under article 45.051 and impose a special expense fee without assessing a fine, just as in any other fine-only misdemeanor case.

County auditors and treasuries: The opinion explained that a special expense fee imposed on deferral is not a fine under section 12.107, so the county does not have to remit any percentage of it to the Parks and Wildlife Department.

The Parks and Wildlife Department: The opinion described the Department's entitlement to its statutory percentage as triggered only when a court actually imposes a fine for a Parks and Wildlife violation, not when a JP defers and charges a special expense fee instead.

Common questions

Can a justice of the peace defer a Parks and Wildlife violation at all?
Yes, according to the opinion. Article 45.051 applies to all fine-only misdemeanor cases and makes no exception for Parks and Wildlife violations, and section 12.107 does not take that deferral power away.

Does the special expense fee have to go to the Parks and Wildlife Department?
No. The opinion concluded that section 12.107 requires remitting a percentage only of a "fine imposed by a court," and a special expense fee under article 45.051 is not a fine, so no part of it must be sent to the Department.

Is a special expense fee the same as a fine?
No. The opinion explained that under article 45.051 the fine is what serves as the conviction and is imposed only if the defendant does not successfully comply with the deferral conditions. The special expense fee is a separate charge imposed when the judge orders deferral.

Does a defendant pay both the fee and the fine?
Not both in full. The opinion noted that if a judge later imposes a fine because the defendant did not comply with the conditions, the statute requires the special expense fee to be credited toward the fine.

Background and statutory framework

Article 45.051 authorizes a justice of the peace to defer proceedings without entering an adjudication of guilt, place a defendant on probation, and impose a special expense fee (Tex. Code Crim. Proc. Ann. art. 45.051(a) (Vernon Supp. 2009); see also id. art. 45.002 (Vernon 2006)). Section 12.107 requires a justice of the peace, clerk, or other officer who receives "a fine imposed by a court for a violation of" the Parks and Wildlife Code to send specified percentages to the Department (Tex. Parks & Wild. Code Ann. § 12.107(a) (Vernon 2002)).

Reading the statutes together under the usual rules of construction (Leland v. Brandel, 257 S.W.3d 204, 206 (Tex. 2008); Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999); La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558, 565 (Tex. 1984)), the opinion found no conflict: section 12.107 does not require a fine and does not bar deferral, so it operates only when a fine is actually imposed. The opinion also relied on the 2009 amendment that removed the "not to exceed the amount of the fine assessed" language (Act of May 29, 2009, 81st Leg., R.S., ch. 1121, § 2, 2009 Tex. Gen. Laws 3091, 3092), and on the principle that different statutory words carry different meanings (Guarantee Mut. Life Ins. Co. v. Harrison, 358 S.W.2d 404, 406-07 (Tex. Civ. App.-Austin 1962, writ ref'd n.r.e.)), to conclude that a special expense fee is not a fine and does not constitute a conviction (Tex. Code Crim. Proc. Ann. art. 45.051(a), (d) (Vernon Supp. 2009)).

Citations

Statutes:

• Tex. Code Crim. Proc. Ann. art. 45.051(a), (c), (d) (Vernon Supp. 2009); art. 45.002 (Vernon 2006)
• Tex. Parks & Wild. Code Ann. § 12.107(a) (Vernon 2002)
• Act of May 29, 2009, 81st Leg., R.S., ch. 1121, § 2, 2009 Tex. Gen. Laws 3091, 3092

Cases:

• Leland v. Brandel, 257 S.W.3d 204 (Tex. 2008)
• Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864 (Tex. 1999)
• La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558 (Tex. 1984)
• Guarantee Mut. Life Ins. Co. v. Harrison, 358 S.W.2d 404 (Tex. Civ. App.-Austin 1962, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0745
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0745.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

November 20, 2009

Mr. Sidney "Buck" LaQuey
Grimes County Auditor
Post Office Box 510
Anderson, Texas 77830

Opinion No. GA-0745

Re: Whether a justice of the peace may defer the adjudication of a charge of violating the Parks and Wildlife Code and impose a special expense without assessing a fine and, if so, whether any portion of the special expense must be remitted to the Parks and Wildlife Department (RQ-0802-GA)

Dear Mr. LaQuey:

You write to suggest a possible conflict between article 45.051 of the Code of Criminal Procedure and section 12.107 of the Parks and Wildlife Code.[1] You indicate concern about complying with section 12.107 and ask whether a justice of the peace may defer the adjudication of a charge of violating the Parks and Wildlife Code and may impose a special expense without assessing a fine and, if so, whether any portion of the special expense must be remitted to the Parks and Wildlife Department (the "Department").[2]

Article 45.051 authorizes a justice of the peace to defer proceedings without entering an adjudication of guilt and to place a defendant on probation under specified circumstances. See TEX. CODE CRIM. PROC. ANN. art. 45.051(a) (Vernon Supp. 2009); see also id. art. 45.002 (Vernon 2006) (providing that "[c]riminal proceedings in the justice and municipal courts shall be conducted in accordance" with chapter 45). A justice of the peace, "[i]n issuing the order of deferral, ... may impose a special expense fee on the defendant." TEX. CODE CRIM. PROC. ANN. art. 45.051(a) (Vernon Supp. 2009). Section 12.107 requires a "justice of the peace, clerk of any court, or any other officer of the state who receives a fine imposed by a court for a violation of this [Parks & Wildlife] code ... [to] send the fine to the [D]epartment" in certain specified percentages. TEX. PARKS & WILD. CODE ANN. § 12.107 (Vernon 2002).

You suggest that section 12.107's requirement to send a fine to the Department precludes a justice of the peace from deferring proceedings under article 45.051 and imposing a special expense fully retained by the county. See Request Letter at 1-2 (citing Tex. Att'y Gen. Op. No. JM-526 (1986)). We address your query in two parts. First, we consider a justice of the peace's authority to defer proceedings under article 45.051 when the charge is one of violating the Parks and Wildlife Code. Second, we consider issues with respect to the special expense.

As we examine article 45.051 and section 12.107, we are mindful that in construing statutes courts seek first to determine the Legislature's intent. See Leland v. Brandel, 257 S.W.3d 204, 206 (Tex. 2008). Courts look to the statute's plain language under the assumption that the Legislature meant what it said and that its words are the surest guide to its intent. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999). Courts also seek to harmonize statutes when possible. See La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558, 565 (Tex. 1984).

Section 12.107 does not affirmatively require that a fine be imposed for a violation of the Parks and Wildlife Code. See TEX. PARKS & WILD. CODE ANN. § 12.107 (Vernon 2002). Nor does it expressly limit the jurisdiction of justice courts or prohibit a justice of the peace from exercising the authority in article 45.051 to defer proceedings. See id. Nothing in the plain language of section 12.107 indicates that the Legislature intended to preclude a justice of the peace from deferring proceedings under article 45.051. Moreover, article 45.051 applies to all misdemeanor cases punishable by fine only and does not except misdemeanor cases involving violations of the Parks and Wildlife Code. See TEX. CODE CRIM. PROC. ANN. art. 45.051(a) (Vernon Supp. 2009). The two provisions do not, as you suggest, conflict. Instead, they may be harmonized such that section 12.107 is understood to require that the specified percentage be sent to the Department in only those instances where a fine is actually imposed by a court. We therefore conclude that section 12.107 does not preclude a justice of the peace from exercising the authority in article 45.051 to defer proceedings of a charge of violating the Parks and Wildlife Code.

We next consider your questions involving the special expense. You suggest that subarticle 45.051(c)'s language "not to exceed the amount of the fine assessed" means that a "fine should be imposed in addition to the special expense." Request Letter at 2. The Eighty-first Legislature amended article 45.051 and removed the language giving rise to your concern. See Act of May 29, 2009, 81st Leg., R.S., ch. 1121, § 2, 2009 Tex. Gen. Laws 3091, 3092 (codified as an amendment of TEX. CODE CRIM. PROC. ANN. art. 45.051). Article 45.051 now provides that "[i]n issuing the order of deferral, the judge may impose a special expense fee on the defendant in an amount not to exceed the amount of the fine that could be imposed on the defendant as punishment for the offense." TEX. CODE CRIM. PROC. ANN. art. 45.051(a) (Vernon Supp. 2009). The amended article 45.051 also provides that the "judge may elect not to impose the special expense fee for good cause shown by the defendant." Id. By contrast, the fine serves as the conviction and is imposed only when the defendant cannot show successful compliance with the article 45.051 conditions. Id. art. 45.051(d). We see nothing in the language of the amended article 45.051 that requires a fine to be imposed in addition to the special expense fee.[3]

With respect to whether any portion of a special expense fee must be sent to the Department, section 12.107 expressly requires only that a percentage of a "fine imposed by a court for a violation" of the Parks and Wildlife Code be sent to the Department. TEX. PARKS & WILD. CODE ANN. § 12.107(a) (Vernon 2002). It does not apply to all fees and costs that may be collected in a criminal proceeding. See id. Under article 45.051, a "special expense fee" is not a "fine." Compare TEX. CODE CRIM. PROC. ANN. art. 45.051(a), with id. art. 45.051(d) (Vernon Supp. 2009); see also Guarantee Mut. Life Ins. Co. v. Harrison, 358 S.W.2d 404, 406-07 (Tex. Civ. App.-Austin 1962, writ ref'd n.r.e.) (recognizing that when the Legislature uses different words, it is presumed to have intended different meanings). Moreover, unlike a fine, a special expense fee imposed under article 45.051 does not constitute a conviction for a violation of the Parks and Wildlife Code. See TEX. PARKS & WILD. CODE ANN. § 12.107(a) (Vernon 2002) (applying to a fine "imposed by a court for a violation of [the Parks and Wildlife] [C]ode"); TEX. CODE CRIM. PROC. ANN. art. 45.051(d) (Vernon Supp. 2009) (providing that an imposed fine constitutes a conviction). Accordingly, we conclude that the Legislature has not required that any portion of a special expense fee imposed under article 45.051(a) must be sent to the Department.

SUMMARY

A justice of the peace may defer the adjudication of a charge of violating the Parks and Wildlife Code and impose a special expense fee without assessing a fine. A special expense fee imposed under article 45.051, Code of Criminal Procedure, is not a fine under section 12.107, Parks and Wildlife Code, that must be sent to the Parks and Wildlife Department.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[Footnote 1: See Request Letter at 1-2 (May 26, 2009) (available at http://www.texasattorneygeneral.gov).]

[Footnote 2: See id.; Supplemental Request Letter at 1 (June 1, 2009) (available at http://www.texasattorneygeneral.gov).]

[Footnote 3: As a practical matter, if the judge orders a special expense fee as part of a probation but then ultimately imposes a fine because the defendant is not successful in complying with the imposed conditions, a defendant would not pay both amounts because "the judge shall require that the amount of the special expense fee be credited toward the payment of the amount of the fine." TEX. CODE CRIM. PROC. ANN. art. 45.051(a) (Vernon Supp. 2009).]