When a Texas justice court defers a no-insurance fine, can it also defer the $75 court cost, and can it spend the fees it collects the way a prosecutor spends hot-check money?

Texas AG Opinion JM-905: Court Costs on a No-Insurance Conviction and How the Fees May Be Spent

Plain-English summary

This opinion answers two housekeeping questions a justice of the peace runs into when handling no-insurance cases. Under the version of the law in place in 1988, article 6701h (the motor-vehicle financial-responsibility law) attached a $75 cost of court to a conviction for failing to maintain financial responsibility, and it also allowed a $10 fee before a court dismissed such a case. The Randall County prosecutor wanted to know how those two pieces of money were supposed to be handled.

The first question was about timing. Article 45.54 of the Code of Criminal Procedure lets a justice defer a fine-only misdemeanor: the justice suspends imposition of the fine and puts off final disposition for up to 180 days, and if the defendant behaves and shows compliance, the complaint can be dismissed. So if the fine can wait, can the $75 court cost wait too? The Attorney General said no. A person has to be convicted before article 45.54 even comes into play, and once there is a conviction the court costs are due. Article 45.54 talks about deferring the fine, not the costs, and an earlier opinion had already held that costs in an article 45.54 case are payable at conviction. The $75 is collected then, not at the end of the deferral period.

The second question was about spending. The $10 fee that article 6701h required before dismissing proceedings goes into the county (or municipal) treasury, and the statute says the collecting court may use that money to defray expenses incurred in administering the statute. The prosecutor asked whether a justice court could treat that money the way a prosecutor treats hot-check fees under former article 53.08 (now article 102.007). It cannot. Under article 102.007, a county, district, or criminal district attorney spends hot-check fees at his sole discretion for the office's salaries and expenses, which is broad. The justice court's authority is narrower and written right into article 6701h: the section 1C(e) fee can be spent only to defray the court's expenses in administering that section. The two statutes give two different, and differently worded, spending powers.

Currency note

This opinion was issued in 1988. Later statutes, court decisions, and 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 mentioned here.

The dollar amounts, statute numbers, and even the governing act have changed a great deal since 1988. Article 6701h, V.T.C.S., the old financial-responsibility statute, has been repealed and its financial-responsibility rules recodified into the Transportation Code, and court costs and fees in these cases are now set by current statutes at current amounts. Anyone dealing with a present-day no-insurance case should look to the current Transportation Code and Code of Criminal Procedure rather than the $75 and $10 figures here. The durable points are structural: deferring a fine under article 45.54 does not automatically defer the court costs, which are due at conviction, and a fee earmarked by statute for administering a particular program can be spent only for that purpose, not for general office costs.

Common questions

If a justice defers my no-insurance fine, do I still owe the court cost right away?
Under this opinion, yes. The fine could be deferred under article 45.54, but the court cost was collected at conviction because the statute made no provision for deferring costs. Amounts and statutes have since changed, so check current law.

Why can't the fine and the costs be deferred together?
Article 45.54 lets the justice defer the fine, but it does not mention deferring costs, and a person has to be convicted before article 45.54 applies at all. Once there is a conviction, the costs are due.

Can a justice court spend the fees it collects however it wants?
No. The $10 dismissal fee under article 6701h could be spent only to defray the court's expenses in administering that statute. That is narrower than a prosecutor's broad, sole-discretion authority over hot-check fees.

Is this the same money a prosecutor collects on a hot check?
No. Hot-check fees under article 102.007 (former article 53.08) are a separate fund administered by the prosecutor with wide spending discretion. The article 6701h court fee is a different fund with a specific, limited purpose.

Background and statutory framework

Section 1C(b) of article 6701h, V.T.C.S., provided that a person convicted under subsection (a) "shall pay a sum of Seventy-five Dollars ($75) as costs of court to be collected in addition to other taxable court costs at the same time and in the same manner as fines and other court costs." Article 45.54 of the Code of Criminal Procedure allows a justice, on conviction of a fine-only misdemeanor (other than one disposed of under section 143A of the Uniform Act Regulating Traffic on Highways, article 6701d, V.T.C.S.), to suspend imposition of the fine and defer final disposition for up to 180 days; at the end of the period the justice may dismiss the complaint if the defendant shows compliance, and on dismissal a special expense not exceeding the fine may be imposed. In Attorney General Opinion JM-526 (1986), the Attorney General concluded that in an article 45.54 proceeding court costs are payable at conviction rather than at the end of the deferral period, with an exception for the "special expense" that the statute authorizes only if the complaint is dismissed. Because a violation of article 6701h is a finable violation subject to article 45.54's deferral, and article 45.54 contains no provision for deferring costs, the $75 cost of court is collectable upon conviction.

The second question compared two fee statutes. Subsection (e) of section 1C of article 6701h required payment of a $10 fee before dismissing proceedings under subsection (a); the fee is deposited in the municipal treasury (for a municipal court) or the county treasury (for another court), and "money deposited under this subsection may be used by the court that collected the money to defray expenses incurred in administering this section." Former article 53.08 of the Code of Criminal Procedure was repealed (Acts 1987, 70th Leg., ch. 167, section 4.01(b)) and reenacted as article 102.007 (a companion provision became article 102.006). Article 102.007 authorizes a county, district, or criminal district attorney to collect a fee for processing a hot check and provides that fees "shall be deposited in the county treasury in a special fund to be administered by" that prosecutor, with expenditures "at the sole discretion of the attorney" to "defray the salaries and expenses of the prosecutor's office." Attorney General Opinion JM-738 (1987) described that fund as segregated and earmarked, with expenditures within the statutory limits made at the prosecutor's sole discretion. Contrasting the two, the Attorney General concluded that the justice court's authority over the section 1C(e) fee is limited by the express terms of article 6701h to defraying "expenses incurred in administering this section," and does not carry the broader sole-discretion spending power that article 102.007 gives designated prosecutors.

Citations

Statutory authority:

• V.T.C.S. article 6701h (motor-vehicle financial-responsibility law): sections 1C(b) ($75 costs of court), 1C(e) ($10 fee before dismissal; limited spending)
• Code of Criminal Procedure article 45.54 (deferral of fine-only misdemeanor)
• Code of Criminal Procedure article 102.007 (former article 53.08; hot-check fee; prosecutor's sole-discretion spending); article 102.006 (companion enactment)
• V.T.C.S. article 6701d, section 143A (Uniform Act Regulating Traffic on Highways)

Cases: none cited.

Prior Attorney General materials referenced: JM-526 (1986) (costs payable at conviction in an article 45.54 proceeding); JM-738 (1987) (article 102.007 hot-check fund administered at the prosecutor's sole discretion).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-905
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0905.pdf

Original opinion text

Best-effort transcription from a scanned PDF (pdftotext -layout). Minor OCR errors remain and obvious ones are corrected here (for example, the opinion number is JM-905 throughout; prior opinions read JM-526 and JM-738; "article 102.007" and "article 53.08" for OCR variants); the linked PDF is authoritative.

THE ATTORNEY GENERAL OF TEXAS

May 18, 1988

Honorable Randall L. Sherrod
Criminal District Attorney
Randall County
501 16th Street
Canyon, Texas 79015

Opinion No. JM-905

Re: Whether a Justice of the Peace must collect a $75 fee at the time a defendant's fine is deferred under article 45.54 of the Texas Code of Criminal Procedure, and related questions (RQ-1387)

Dear Mr. Sherrod:

You ask:

(1) Must a justice court collect a fee of $75 pursuant to art. 6701h, Section 1C(b) V.A.T.S., at the time payment of a criminal defendant's fine is deferred under article 45.54 of the Texas Code of Criminal Procedure?

(2) May a justice court use monies collected by it under article 6701h, Section 1C(e) V.A.T.S., in the same manner that a prosecutor's office uses funds collected by it under article 53.08 V.A.C.C.P.?

Section 1C(b) of article 6701h, V.T.C.S., provides:

In addition to the fine levied under Subsection (a) of this section, a person convicted of a violation of that subsection shall pay a sum of Seventy-five Dollars ($75) as costs of court to be collected in addition to other taxable court costs at the same time and in the same manner as fines and other court costs.

Article 45.54 of the Code of Criminal Procedure provides in pertinent part:

(1) Upon conviction of the defendant of a misdemeanor punishable by fine only, other than a misdemeanor disposed of by Section 143A, Uniform Act Regulating Traffic on Highways (Article 6701d, V.T.C.S.), the justice may suspend the imposition of the fine and defer final disposition of the case for a period not to exceed 180 days.

. . .

(3) At the conclusion of the deferral period, if the defendant presents satisfactory evidence that he has complied with the requirements imposed, the justice may dismiss the complaint. Otherwise, the justice may reduce the fine assessed or may then impose the fine assessed. If the complaint is dismissed, a special expense not to exceed the amount of the fine assessed may be imposed.

In Attorney General Opinion JM-526 (1986), it was concluded that in an article 45.54 proceeding the court costs are payable at the time of conviction rather than at the end of the deferral period when the complaint is dismissed. The opinion noted that an exception to that rule was the "special expense" cost that section 3 authorizes "if the complaint by express terms of the statute is dismissed."

A person must be convicted before article 45.54 is applicable. A violation under 6701h is a finable violation subject to the deferral of fine provisions of article 45.54. Article 6701h provides for the collection of a fee of $75.00 at the time a person is convicted. There is no provision for deferral of costs under article 45.54. Hence, costs are collectable upon conviction.

In your second question you ask whether a justice court may use fees collected under subsection (e), section 1C of article 6701h in the same manner that a prosecutor's office is authorized to use funds collected under former article 53.08 of the Code of Criminal Procedure.[1] Former article 53.08 of the Code of Criminal Procedure was repealed by Acts 1987, 70th Leg., ch. 167, section 4.01(b). The former statute's provisions are now located at article 102.007 of the Code of Criminal Procedure.

Subsection (e) of section 1C of article 6701h authorizes the assessment of a fee at the time of dismissal of proceedings. Subsection (e) states:

The court shall require payment of a Ten Dollar ($10) fee before dismissing proceedings under Subsection (a) of this section. The fee collected by a municipal court under this subsection shall be deposited in the municipal treasury. The fee collected by another court under this subsection shall be deposited in the county treasury of the county in which the court collecting the fee is located. Money deposited under this subsection may be used by the court that collected the money to defray expenses incurred in administering this section. (Emphasis added.)

Article 102.007 (former article 53.08) authorizes a county attorney, district attorney, or criminal district attorney to collect a fee if his office processes a hot check under certain circumstances. The statute further provides that

(e) Fees collected under this article shall be deposited in the county treasury in a special fund to be administered by the county attorney, district attorney, or criminal district attorney. Expenditures from this fund shall be at the sole discretion of the attorney, and may be used only to defray the salaries and expenses of the prosecutor's office. . . .

In Attorney General Opinion JM-738 (1987) the matter of the expenditure of fees collected under this article was discussed. In Attorney General Opinion JM-738 it was stated:

This statute creates a special fund which is in the county treasury, but which is segregated from other county funds and earmarked for a specific purpose. More importantly, the statute states that the fund is to be administered by county attorneys, district attorneys, and criminal district attorneys, and that, within the limits set out therein, expenditures from the fund are to be made at their sole discretion. (Emphasis added.)

Fees collected under article 102.007 (former article 53.08) may be expended at the discretion of the designated prosecutors to defray the salaries and expenses of that office. Attorney General Opinion JM-738. Expenditure of fees collected by the justice court under subsection (e) of section 1C of article 6701h are limited by the express terms of the statute to defraying "expenses incurred in administering this section."

SUMMARY

Article 45.54 of the Code of Criminal Procedure makes no provision for deferral of court costs and the $75.00 costs of court authorized by section 1C(b) of article 6701h, V.T.C.S. are to be collected upon conviction. Expenditure of fees collected under subsection (e) of section 1C of article 6701h may be expended by the court that collected the money solely to "defray expenses incurred in administering this section [failure to maintain financial responsibility]."

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General

[1] The 66th Legislature in 1979 enacted two different statutes which were both codified as article 53.08 of the Code of Criminal Procedure. Acts 1979, 66th Leg., ch. 604, section 2 at 1335; Acts 1979, 66th Leg., ch. 734, section 1 at 1802. These two statutes have since been repealed and their texts reenacted as sections 102.006 and 102.007 of the Code of Criminal Procedure. Your question concerns the statute which is now section 102.007 of the Code of Criminal Procedure.