After deferred-adjudication supervision expired without revocation or guilt proceedings, could a court use a capias pro fine or execution to collect an unpaid fine imposed as a probation condition?
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This page answers the general question as of 1984. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-165: Unpaid Deferred-Adjudication Fine
Plain-English summary
JM-165 concluded that when deferred-adjudication supervision expired without proceedings to revoke probation or determine guilt, the defendant could not be subjected to execution for a fine imposed as a probation condition.
"Assuming that no proceedings to revoke probation or determine guilt have been initiated, we conclude that a defendant whose adjudication was deferred under article 42.13, section 3d, V.T.C.S., is not subject to an execution for collection of a fine imposed as a condition of his probation once his probationary period has expired."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0165.pdf
The opinion reasoned that the fine was not part of a sentence because deferred adjudication postponed any judgment of guilt.
"The imposition of a fine under section 3d(a), therefore, is as a condition of probation, not as a part of a sentence."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0165.pdf
Currency note
This opinion was issued in 1984 and discusses former article 42.13. Subsequent statutory amendments, recodification, 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.
Common questions
What enforcement methods did the request ask about?
It asked whether a capias pro fine or writ of execution could issue after supervision expired to enforce an unpaid fine.
"If a defendant whose adjudication was deferred upon a plea of guilty pursuant to article 42.13, section 3d of the Code of Criminal Procedure, fails to pay his fine, once his period of supervision has expired, may a capias pro fine or writ of execution be issued to enforce payment?"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0165.pdf
What could the court do at the start of deferred adjudication?
The court could defer further proceedings without entering an adjudication of guilt, place the defendant on probation, and impose an applicable fine and reasonable probation conditions.
"[T]he court may, after receiving a plea of guilty or a plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt and place the defendant on probation for a period as the court may prescribe."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0165.pdf"The court may impose a fine applicable to the offense and require any reasonable terms and conditions of probation."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0165.pdf
What happened when the probationary period expired?
If the court had not proceeded to adjudicate guilt, it had to dismiss the proceedings and discharge the defendant.
"On expiration of a probationary period imposed under Subsection (a) of this section, if the court has not proceeded to adjudication of guilt, the court shall dismiss the proceedings against the defendant and discharge the defendant."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0165.pdf
Why did article 43.03 not authorize post-expiration collection?
Article 43.03 applied when a defendant was sentenced to pay a fine or costs, while deferred adjudication involved neither a judgment of conviction nor a sentence carrying punishment into execution.
"Article 42.02 defines a sentence as 'that part of the judgment ... that orders that the punishment be carried into execution in the manner prescribed by law.' Article 42.01 defines a judgment as the court's written declaration of conviction or acquittal."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0165.pdf
Did the answer change if revocation or guilt proceedings began before expiration?
JM-165 expressly limited its conclusion to cases in which those proceedings had not already been instituted.
"[A] defendant whose probationary period under article 42.13 has expired without institution of proceedings to revoke probation or determine guilt may not be subjected to an execution for collection of a fine imposed as a condition of probation."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0165.pdf
Background and legal framework
Article 42.13 defined probation to include suspension of imposition of sentence, and section 3d described deferred adjudication as postponing an adjudication of guilt.
"Section 2 of article 42.13 defines probation to include the suspension of the imposition of sentence. Likewise, section 3d(a) quoted above describes probation as being based on the postponement of an adjudication of guilt."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0165.pdf
The opinion treated adjudication as the formal pronouncement of a judgment or decree.
"Black's Law Dictionary 39 (5th ed. 1979) defines adjudication as '[t]he formal giving or pronouncing a judgment or decree in a cause; also the judgment given.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0165.pdf
Holding
"A defendant whose adjudication was postponed pursuant to section 3d of article 42.13 of the Code of Criminal Procedure after a plea of guilty and who fails to pay a fine imposed as a condition of probation may not be subject to a capias pro fine or other writ of execution to enforce payment of such fine once his period of supervision has expired, if proceedings to revoke probation or determine guilt have not already been instituted."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0165.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0165
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0165.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
JIM MATTOX
Attorney General
June 13, 1984
Honorable Joe Warner Bell
Trinity County Attorney
P. O. Box 878
Groveton, Texas 75845
Opinion No. JM-165
Re: Whether a defendant whose adjudication was deferred under section 3d of article 42.13 of the Code of Criminal Procedure may be compelled to pay a fine after his period of probation has expired
Dear Mr. Bell:
You have asked:
If a defendant whose adjudication was deferred upon a plea of guilty pursuant to article 42.13, section 3d of the Code of Criminal Procedure, fails to pay his fine, once his period of supervision has expired, may a capias pro fine or writ of execution be issued to enforce payment?
Assuming that no proceedings to revoke probation or determine guilt have been initiated, we conclude that a defendant whose adjudication was deferred under article 42.13, section 3d, V.T.C.S., is not subject to an execution for collection of a fine imposed as a condition of his probation once his probationary period has expired.
Section 3d of article 42.13 of the Code of Criminal Procedure provides in pertinent part as follows:
(a) [W]hen in its opinion the best interest of society and the defendant will be served, the court may, after receiving a plea of guilty or a plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt and place the defendant on probation for a period as the court may prescribe, not to exceed the maximum period of imprisonment prescribed for the offense for which the defendant is charged. The court may impose a fine applicable to the offense and require any reasonable terms and conditions of probation, including any of the conditions enumerated in Sections 6, 6a, and 6c of this Article . . . .
. . . .
(c) On expiration of a probationary period imposed under Subsection (a) of this section, if the court has not proceeded to adjudication of guilt, the court shall dismiss the proceedings against the defendant and discharge the defendant . . . .
Article 43.03 provides that
(a) If a defendant is sentenced to pay a fine or costs or both and he defaults in payment, the court may order him imprisoned in jail until discharged as provided by law . . . .
Article 42.02 defines a sentence as "that part of the judgment . . . that orders that the punishment be carried into execution in the manner prescribed by law." Article 42.01 defines a judgment as the court's written declaration of conviction or acquittal. Section 2 of article 42.13 defines probation to include the suspension of the imposition of sentence. Likewise, section 3d(a) quoted above describes probation as being based on the postponement of an adjudication of guilt. The imposition of a fine under section 3d(a), therefore, is as a condition of probation, not as a part of a sentence. See also §6(8) (providing that payment of a fine may be made a condition of probation). Section 3d(c) unequivocally states that a defendant must be discharged and the proceedings dismissed if the court has not "proceeded to adjudication of guilt" before the "expiration of a probationary period imposed under Subsection (a) of this section . . . ." Black's Law Dictionary 39 (5th ed. 1979) defines adjudication as "[t]he formal giving or pronouncing a judgment or decree in a cause; also the judgment given." Compare Burton, Legal Thesaurus 11 (1980).
Hence, by the explicit terms of section 3d, a defendant whose probationary period under article 42.13 has expired without institution of proceedings to revoke probation or determine guilt may not be subjected to an execution for collection of a fine imposed as a condition of probation.
SUMMARY
A defendant whose adjudication was postponed pursuant to section 3d of article 42.13 of the Code of Criminal Procedure after a plea of guilty and who fails to pay a fine imposed as a condition of probation may not be subject to a capias pro fine or other writ of execution to enforce payment of such fine once his period of supervision has expired, if proceedings to revoke probation or determine guilt have not already been instituted.
Very truly yours,
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Colin Carl
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
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