Where does a Texas county deposit a fine collected after a probation modification?

Plain-English summary

Kerr County Attorney David M. Motley asked a bookkeeping question with a sharp legal edge: when a probationer pays a fine after the court modifies the terms of community supervision, does the money go into the county's general treasury or into the special fund earmarked for the county probation department? The answer depends entirely on whether the payment reflects an "increase in the defendant's fine." Under article 42.12, section 22(d) of the Code of Criminal Procedure, money from an increase in a defendant's fine, imposed as a sanction when probation is modified, must be deposited in a special county fund used for the same purposes as state aid to the community supervision and corrections department. Ordinary criminal fines, by contrast, go into the general county treasury under chapter 103.

The opinion concluded that an "increase in the defendant's fine" means an increase in the total original fine assessed at sentencing, including both the probated and unprobated portions. It does not mean simply moving part of an already-assessed fine from "probated" to "payable now." The county attorney's hypothetical made the point concrete. A defendant was assessed the maximum $2,000 fine for a Class B misdemeanor, with $1,500 probated and $500 payable immediately. After a probation violation, the judge reinstated $1,000 of the probated $1,500 rather than revoking probation. The opinion concluded that no increase occurred, because the total fine stayed at $2,000. In fact, no increase was even possible there, since the defendant had already been assessed the maximum allowed for the offense, and section 22(d) says the original fine plus any increase cannot exceed that maximum. So the reinstated $1,000 belonged in the general county treasury, not the probation department's special fund.

The opinion also answered a follow-up about plea bargains. A defendant who pleads guilty under a plea bargain is entitled to have the state keep its side of the deal, and a broken bargain can call the plea's voluntariness into question. But because a court retains continuing jurisdiction over probation and may modify its conditions, and because the Code lists a fine increase as one of those modifiable conditions, the possibility of an increase is itself part of the bargain. So imposing a fine increase when modifying probation does not render the plea involuntary.

Currency note

This opinion was issued in 2000. 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.

Background and statutory framework

Two different deposit rules were in play. As a general matter, fines paid by a criminal defendant in a district or county court are collected by a county officer under chapter 103 of the Code of Criminal Procedure and deposited in the county treasury, where they are subject to the laws governing general county funds unless some statute directs them into a special fund. Article 42.12, which governs community supervision (probation), creates one of those special-fund exceptions. Community supervision places a defendant under court-imposed conditions for a set period, either deferring adjudication or suspending an imposed sentence. A judge may require payment of an assessed fine as a condition of supervision, and if the defendant violates the terms, the court may continue, modify, or revoke supervision. Among the sanctions available on modification, section 22(a)(3) and (d) let the judge increase the defendant's fine, and section 22(d) directs that money from such an increase be deposited in the special county fund used for the same purposes as state aid under chapter 76 of the Government Code.

The interpretive crux was the phrase "increase in the defendant's fine." The opinion grounded its reading in section 22(d)'s own language, which ties the increase to the "original fine imposed on the defendant" and caps the original fine plus any increase at the statutory maximum for the offense. Reading those together, the opinion concluded the "original fine" is the total assessed at sentencing, probated and unprobated parts alike, so only a rise in that total counts as an increase. On the plea-bargain question, the opinion drew on Perkins v. Third Court of Appeals (describing plea bargaining), article 26.13(b) (requiring a voluntary plea), and Ex parte Austin (the state must honor an accepted bargain), then relied on Stevens v. State for a court's continuing authority to alter probation conditions, Christopher v. State for treating modifications as condition changes, and Speth v. State to conclude that a built-in possibility of a fine increase does not make the plea involuntary.

Common questions

When does a probation fine go to the special probation fund instead of the general treasury?
Only when the payment reflects an "increase in the defendant's fine" imposed as a sanction on modifying community supervision. The opinion concluded that triggers the special fund under article 42.12, section 22(d).

Is reinstating part of a probated fine an "increase"?
No. The opinion concluded that an increase means a rise in the total original fine assessed at sentencing. Shifting part of an existing fine from probated to payable does not raise the total, so it is not an increase.

Where did the reinstated $1,000 go in the county's example?
Into the general county treasury. Because the total fine stayed at the $2,000 maximum, there was no increase, so the special-fund rule did not apply.

Can a fine even be increased if the original fine was already the maximum?
No. Section 22(d) caps the original fine plus any increase at the maximum for the offense, so a defendant already assessed the maximum cannot have the fine increased.

Does increasing the fine on modification break a plea bargain?
The opinion concluded it does not. Because a court may modify probation conditions and a fine increase is one of those conditions, the possibility of an increase is part of the bargain, so the plea stays voluntary.

Citations

Statutes: Tex. Code Crim. Proc. Ann. arts. 103.003(a), .004(a), .010, and 103.004 (Vernon Supp. 2000); art. 42.12, §§ 2(2), 10, 11(a)(8), 21, 22, 22(a)(3), 22(d), and 23 (Vernon Supp. 2000); art. 26.13(b) (Vernon 1989); and chapter 76 of the Government Code.

Cases: Perkins v. Third Court of Appeals, 738 S.W.2d 276 (Tex. Crim. App. 1989); Ex parte Austin, 746 S.W.2d 226 (Tex. Crim. App. 1988) (en banc); Stevens v. State, 938 S.W.2d 517 (Tex. App.-Fort Worth 1997, pet. ref'd); Christopher v. State, 1999 WL 997800 (Tex. App.-Houston [1st Dist.] 1999, pet. filed); Speth v. State, 1999 WL 1076342 (Tex. Crim. App. 1999).

Prior Attorney General opinions discussed: DM-396 (1996) and JC-0031 (1999).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0173
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0173.pdf

Original opinion text

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

February 2, 2000

The Honorable David M. Motley
Kerr County Attorney
County Courthouse, Suite BA-103
700 Main Street
Kerrville, Texas 78028

Opinion No. JC-0173

Re: Whether fines assessed and collected pursuant to an order modifying the terms of community supervision should be deposited with the county clerk or with the county community supervision and corrections department (RQ-0086-JC)

Dear Mr. Motley:

You ask us to determine the proper disposition of fines collected from a criminal defendant pursuant to a court-ordered modification of the terms of the defendant's community supervision.

As a general rule, fines paid by a criminal defendant in a district or county court are collected by a county officer pursuant to the requirements of chapter 103 of the Code of Criminal Procedure and deposited in the county treasury. See TEX. CODE CRIM. PROC. ANN. arts. 103.003(a), .004(a), .010 (Vernon Supp. 2000); Tex. Att'y Gen. Op. No. DM-396 (1996) at 8. Unless directed by law to be deposited in a special fund, see Tex. Att'y Gen. Op. No. JC-0031 (1999) at 4-5, funds collected as criminal fines and deposited in the county treasury normally are subject to laws governing the use of general county funds, see TEX. CODE CRIM. PROC. ANN. art. 103.004 (Vernon Supp. 2000).

Article 42.12 of the Code of Criminal Procedure, however, establishes a different procedure for money collected from a criminal defendant as a result of an "increase in the defendant's fine" imposed pursuant to a modification of the terms of the defendant's community supervision. Community supervision, also known as probation, is "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 [of time.]" Id. art. 42.12, § 2(2). During the period of community supervision, either (1) criminal proceedings against the defendant are deferred without an adjudication of guilt, or (2) the defendant is adjudicated guilty and the defendant's sentence is probated and the imposition of sentence is suspended in whole or in part. Id. If a fine has been assessed against a criminal defendant who has been placed on community supervision and payment of the fine has not been probated, a judge may require the defendant to pay his fine as a condition of community supervision. See id. § 11(a)(8). If the defendant violates the terms of his probation, the court, in accordance with certain procedures, may continue the probation with or without modified terms, or may revoke the probation. See id. §§ 10, 21, 22, 23. If a judge modifies a defendant's probation, the judge may, among other things, order an increase in the defendant's fine. Id. § 22(a)(3), (d).

Money received by the judge from the increase in the defendant's fine must be deposited in a special fund in the county treasury to be used by the county community supervision and corrections department pursuant to chapter 76 of the Government Code:

(d) A judge may impose a sanction on a defendant described by Subsection (a)(3) of this section by increasing the fine imposed on the defendant. The original fine imposed on the defendant and an increase in the fine imposed under this subsection may not exceed the maximum fine for the offense for which the defendant was sentenced. The judge shall deposit money received from an increase in the defendant's fine under this subsection in the special fund of the county treasury to be used for the same purpose for which state aid may be used under Chapter 76, Government Code.

Id. art. 42.12, § 22(d). Thus, a fine collected from a defendant on probation must be deposited in a special fund for use of the county probation department if there has been an "increase in the defendant's fine" pursuant to a probation modification.

You ask us to determine whether there is an "increase in the defendant's fine" when a probationer is ordered to pay all or part of the remainder of a partially probated fine:

D is charged with a Class B misdemeanor, for which the possible range of punishment is up to 180 days in jail, and up to a $2,000 fine. D pleads guilty, and is assessed the entire 180 days in jail, fully probated, and is assessed the entire $2,000 fine, of which $1,500.00 is to be probated.

After several months, D's probation officer receives information that D has committed a new offense, which constitutes a violation of D's probation. D is arrested on a Motion to Revoke or Modify Probation, and a hearing is held on the motion. At the hearing, the judge decides that the D's probation should be modified rather than revoked, and as punishment for the violation, reinstates $1,000.00 of the $1,500.00 that was originally probated.

D, duly chastened, and attempting now to comply fully with his terms and conditions of probation, arrives at the courthouse, with $1,000.00 in hand (having previously paid the original $500.00 fine assessed at the time of the sentencing). Unfortunately, the probation department tells D that he must give them the money, and the Kerr County Clerk tells him that the money must be deposited with them. D is at a loss.

Letter from Honorable David M. Motley, Kerr County Attorney, to Honorable John Cornyn, Texas Attorney General (July 15, 1999), Brief at 1 (on file with Opinion Committee) [hereinafter "County Attorney's Brief"].

Although your hypothetical calls on us to determine which county officer or department should accept the funds from the defendant, in our view the critical issue raised by your inquiry is not who should collect the funds, but where the funds ultimately should be deposited. Irrespective of which office initially collects the money from the defendant, article 42.12 is concerned about where the money ends up. If the fine imposed under the circumstances you describe is an "increase in the defendant's fine," it must be deposited in the county probation department's special fund pursuant to article 42.12, section 22(d), of the Code of Criminal Procedure. Otherwise, it goes into the county's general treasury fund.

You tell us that the Kerr County Adult Community Supervision and Corrections Department argues that when a judge reinstates part of a fine that has been probated, there has been an increase in the defendant's fine for purposes of article 42.12. See County Attorney's Brief, supra, at 2. You also tell us that the Kerr County Clerk argues, on the other hand, that in such a case there has been no increase in the fine imposed on the defendant, but only an increase in the portion of the fine that is immediately payable instead of probated. Id. at 1.

In our view, an "increase in a defendant's fine" for purposes of article 42.12, section 22(d), of the Code of Criminal Procedure means an increase in the total fine assessed against the defendant, including the probated and unprobated portions of the fine. The language of article 42.12 suggests that "an increase in a defendant's fine" refers to an increase in the "original fine" imposed upon the defendant: "The original fine imposed on the defendant and an increase in the fine imposed under this subsection may not exceed the maximum fine for the offense for which the defendant was sentenced." TEX. CODE CRIM. PROC. ANN. art. 42.12, § 22(d) (Vernon Supp. 2000). The "original fine," we believe, is the total fine assessed against the defendant at the time the defendant was sentenced and placed on community supervision. Only when there has been an increase in the total amount of the original fine has there been an "increase in the defendant's fine" for purposes of article 42.12, section 22(d) of the Code of Criminal Procedure.

In the scenario you lay out, the defendant was assessed a total fine of $2,000, of which $1,500 was probated and $500 was required to be paid immediately. You say that the judge did not increase the amount of the $2,000 fine, but "reinstate[d] $1,000.00 of the $1,500.00 fine that was originally probated." County Attorney's Brief, supra, at 1. But we believe that no "increase in a defendant's fine" has occurred in such a case because the total fine originally assessed against the defendant, $2,000, was not increased. Indeed, there could have been no increase in the defendant's fine in your scenario, since the defendant had already been sentenced to the maximum fine allowable for that offense. Article 42.12, section 22(d) provides that the original fine imposed on the defendant and an increase in the fine may not exceed the maximum fine for the offense for which the defendant was sentenced. Id. § 22(d).

You also ask about the effect of an increase in a defendant's fine, as opposed to a modification of community supervision terms that does not effect an increase, when the defendant is serving community supervision as part of a negotiated plea bargain. See County Attorney's Brief, supra, at 2. Plea bargaining involves a preconviction bargain between the prosecutor and the defendant where the prosecutor makes a concession in exchange for the defendant's promise to plead guilty or nolo contendere. Perkins v. Third Court of Appeals, 738 S.W.2d 276, 282 (Tex. Crim. App. 1989). The Code of Criminal Procedure provides that "[n]o plea of guilty or nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary." TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (Vernon 1989). When a defendant enters a plea of guilty or nolo contendere pursuant to a plea bargain, and the plea is accepted and the agreement approved by the trial court, the state is bound to carry out its side of the plea bargain. See Ex parte Austin, 746 S.W.2d 226, 227 (Tex. Crim. App. 1988) (en banc). If the state does not live up to its part of the plea bargain and the bargain was used as inducement for a plea, then doubt is raised as to whether the plea was truly voluntary. Id. You suggest that where a defendant has pleaded guilty in exchange for probation and payment of a certain fine, then an increase in that fine by the court changes the terms of the plea bargain and renders it involuntary.

Article 42.12, section 22 of the Code of Criminal Procedure allows a court to modify the terms of a defendant's probation. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 22 (Vernon Supp. 2000). "Because a trial court retains continuing jurisdiction over a defendant's probation, it has almost unlimited authority as a matter of law to alter or modify any conditions of probation during the probationary period." Stevens v. State, 938 S.W.2d 517, 520 (Tex. App.-Fort Worth 1997, pet. ref'd). You suggest that while a court clearly may modify the conditions of probation, it is not clear that the court may change the "essential terms of the underlying judgment." County Attorney's Brief, supra, at 2. However, the Code of Criminal Procedure characterizes an increase in the defendant's fine as one of the conditions of community supervision that a court may modify. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 22(a)(3) (Vernon Supp. 2000); cf. Christopher v. State, 1999 WL 997800 at 2, n.1 (Tex. App.-Houston [1st Dist.] 1999, pet. filed) (stating that an extension of the period of community supervision is a "modification of the conditions of community supervision" under article 42.12, section 22(a), of the Code of Criminal Procedure). The possibility of an increase in the fine is a part of the plea bargain, and thus the imposition of an increase as part of a probation modification does not render the plea agreement involuntary. See Speth v. State, 1999 WL 1076342 (Tex. Crim. App. 1999); Stevens, 938 S.W.2d at 520.

SUMMARY

Article 42.12, section 22(d) of the Code of Criminal Procedure provides that money received from an increase in a defendant's fine pursuant to a modification of the terms of the defendant's community supervision must be deposited in a special fund in the county treasury to be used by the county community supervision and corrections department. An "increase in a defendant's fine" for purposes of article 42.12, section 22(d), of the Code of Criminal Procedure means an increase in the total original fine, including the probated and unprobated portions of the fine, assessed against the defendant when the defendant was sentenced and placed on community supervision.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Barbara Griffin
Assistant Attorney General - Opinion Committee