Opinion No. GA-0114

Attorney General of Texas — Opinion.
October 8, 2003

GREG ABBOTT, Attorney General of Texas

Ms. Kristen Klein Guadalupe County Auditor 307 West Court, Suite 205 Seguin, Texas 78155

Re: Whether a community supervision and corrections department may assess a participant in a pretrial intervention program fees under both article 102.012 of the Code of Criminal Procedure and section 76.015(c) of the Government Code (RQ-0058-GA)

Dear Ms. Klein:

You ask whether the Guadalupe County Community Supervision and Corrections Department may assess a participant in a pretrial intervention program fees under both article 102.012
of the Code of Criminal Procedure and section 76.015(c) of the Government Code.[1]

Chapter 76 of the Government Code requires the district judges trying criminal cases in each judicial district to establish a community supervision and corrections department, see Tex. Gov’t Code Ann. § 76.002(a)(1) (Vernon 1998), which must employ personnel “as necessary to conduct presentence investigations, supervise and rehabilitate defendants placed on community supervision, enforce the conditions of community supervision, and staff community corrections facilities,” id. § 76.002(a)(2). For purposes of chapter 76, community supervision i 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
(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.

Tex. Code Crim. Proc. Ann. art. 42.12, § 2 (Vernon Supp. 2003) (emphasis added); Tex. Gov’t Code Ann. § 76.001(2) (Vernon 1998) (“In this chapter . . . `[c]ommunity supervision’ has the meaning assigned by Section 2, Article 42.12, Code of Criminal Procedure.”); see also Tex. Code Crim. Proc. Ann. art. 42.12, § 11 (Vernon Supp. 2003) (authorizing court to determine community supervision conditions and outlining basic conditions).

Section 76.011 of the Government Code also permits a department to “operate programs for the supervision and rehabilitation of persons in pretrial intervention programs. . . . A person in a pretrial intervention program may be supervised for a period not to exceed one year.” Tex. Gov’t Code Ann. § 76.011(a) (Vernon 1998). Chapter 76 does not define the term “pretrial intervention program.” Although several other Texas statutes refer to pretrial intervention or pretrial diversion,[2] none defines the concept. However, pretrial intervention does not involve “the placement of a defendant by a court under a continuum of programs and sanctions, with conditions imposed by the court,” as community supervision is defined. See Tex. Code Crim. Proc. Ann. art. 42.12, § 2 (Vernon Supp. 2003) (defining “community supervision”). Rather, pretrial intervention involves a written agreement entered before trial between the defendant and the prosecutor, pursuant to which the defendant agrees to perform conditions imposed by the prosecutor:

The State agrees to dismiss the case if the defendant performs certain conditions within a specified period of time. Both the State and the defendant request that the trial court continue the present trial setting to a certain date in the future to give the defendant time to comply with the agreed conditions. The agreement is then presented to the trial court for its approval. If the trial court does not approve the agreement, the case proceeds to trial as scheduled on the docket. If the trial court approves the agreement, it grants the joint request for continuance and resets the trial to a certain date in the future. On that date, the defendant must appear before the trial court. If the defendant has complied with the conditions of the agreement, the trial court grants the State’s motion to dismiss the pending criminal charges. If the defendant has not complied with the conditions of the agreement, the case proceeds to trial as scheduled.

Fisher v. State, 832 S.W.2d 641, 643-44 (Tex.App.-Corpus Christi 1992, no pet.). Thus, although a department is authorized to provide both community supervision and pretrial intervention services, community supervision and pretrial intervention involve different classes of people.

Article 102.012 of the Code of Criminal Procedure provides that “[a] person in a pretrial intervention program established under Section 76.011, Government Code, may be assessed a fee that equals the actual cost to a community supervision and corrections department, not to exceed $500, for supervision of the defendant by the department or programs provided to the defendant by the department as part of the pretrial intervention program.” Tex. Code Crim. Proc. Ann. art. 102.012
(Vernon 2003). Article 103.004(d) of the Code of Criminal Procedure provides that “[t]he custodian of the county treasury shall deposit money received from fees imposed under Article 102.012 in the special fund of the county treasury for the community supervision and corrections department serving the county.” Id. art. 103.004(d).[3]

In addition, chapter 76 generally authorizes a department to collect money and fees. Section 76.015 provides that

(a) A department may collect money from an individual as ordered by a court served by the department regardless of whether the individual is under the department’s supervision.
(b) A department that collects money under this section shall promptly transfer the money collected to the appropriate county or state officer.
(c) A department may assess a reasonable administrative fee of not less than $25 and not more than $40 per month on an individual who participates in a department program or receives department services and who is not paying a monthly fee under Section 19, Article 42.12, Code of Criminal Procedure.

Tex. Gov’t Code Ann. § 76.015 (Vernon 1998).

You ask whether the Guadalupe County Community Supervision and Corrections Department may assess a pretrial intervention program participant both a fee for “the actual cost [of providing services] not to exceed $500” under article 102.012 of the Code of Criminal Procedure and “a reasonable administrative fee of not less than $25 and not more than $40 per month” under section 76.015(c) of the Government Code. See
Request Letter, supra note 1, at 2. The Guadalupe County Attorney has advised you that the Department may not charge the latter fee,[4] but you disagree with this advice.[5]

We conclude that a department may assess a participant in a pretrial intervention program only the article 102.012 fee. No statute authorizes a court to impose a fee on a pretrial intervention program participant. Instead, article 102.012 permits a department to charge such a fee. See Tex. Code Crim. Proc. Ann. art. 102.012 (Vernon 2003) (department may assess a fee “that equals the actual cost to a community supervision and corrections department, not to exceed $500, for supervision of the defendant by the department or programs provided to the defendant by the department as part of the pretrial intervention program”). Given that the fee must be based on the actual cost to a department “for supervision of the defendant . . . or programs provided to the defendant,” id., the legislature clearly designed the fee to allow a department to recoup the cost of providing pretrial intervention services, not to generate revenue. Moreover, in limiting the fee to $500, the legislature has clearly provided that a person who participates in a pretrial intervention program may not be assessed more than $500. See id.

Section 76.015(c) of the Government Code authorizes a department to assess a reasonable monthly administrative fee on an individual “who participates in a department program or receives department services and who is not paying a monthly fee” under section 19 of article 42.12 of the Code of Criminal Procedure See Tex. Gov’t Code Ann. § 76.015(c) (Vernon 1998). Although a participant in a pretrial intervention program may receive “department services,” we conclude that section 76.015(c) does not apply to such a person.

First, section 76.015(c) refers to section 19 of article 42.12, which authorizes a judge granting community supervision to fix a monthly fee from $25 to $60 to be paid to the court by the defendant during the community supervision period, deposited in the county treasury, and used under chapter 76. See Tex. Code Crim. Proc. Ann. art. 42.12, § 19(a)-(b) (Vernon Supp. 2003). This reference indicates that the legislature intended section 76.015(c) to apply to defendants who have been ordered to receive department services by a court. A participant in a pretrial intervention program has not been ordered to receive services by a court but rather receives services under an agreement with a prosecutor.

Moreover, article 102.012 of the Code of Criminal Procedure authorizes a department to assess a fee equal to its actual costs for supervising or providing programs to a defendant. See id.
art. 102.012 (Vernon 2003). Actual costs include the department’s administrative costs. Section 76.015(c), in authorizing a “reasonable administrative fee,” Tex. Gov’t Code Ann. § 76.015(c) (Vernon 1998), appears to permit a department to assess a fee for its administrative costs. A participant in a pretrial intervention program is liable for administrative costs under article 102.012, and it is not reasonable to construe section 76.015(c) to require such a person to pay those costs twice. See id. §§ 311.021(3) (“In enacting a statute, it is presumed that . . . a just and reasonable result is intended.”), 311.023(1), (5) (in construing a statute, a court may consider the “object sought to be obtained” and the “consequences of a particular construction”).

Finally, to the extent section 76.015(c) is ambiguous with respect to whether it permits a department to assess pretrial intervention program participants, its legislative history also supports the conclusion that it does not. See id. § 311.023(2)-(3) (in construing a statute, a court may consider “circumstances under which the statute was enacted” and “legislative history”). The legislature first enacted a capped pretrial intervention program fee in 1983.[6] It did not enact section 76.015(c) of the Government Code until 1997.[7] Prior to section 76.015(c)’s enactment, courts could impose fees for community supervision but departments lacked authority to collect fees from program participants other than those receiving pretrial intervention services. The legislature appears to have intended section 76.015(c) to fill that gap by permitting departments to collect fees from participants receiving other services who have not already been ordered to pay a fee by a court. There is no indication in the legislative history that the legislature intended this new provision to apply to participants in pretrial intervention programs, who were already subject to the special capped fee.[8] Had the legislature intended the new fee to increase the fees paid by pretrial intervention program participants, it would have amended article 102.012 to eliminate the cap.

In sum, section 76.015(c) does not apply to a person who participates in a pretrial intervention program and does not permit a department to assess such a person a monthly fee. A department may assess a person who participates in a pretrial intervention program only the article 102.012 fee.

SUMMARY
A community supervision and corrections department may assess a participant in a pretrial intervention program a fee for “the actual cost” of providing services not to exceed $500 under article 102.012 of the Code of Criminal Procedure. A department may not assess such a participant “a reasonable administrative fee of not less than $25 and not more than $40 per month” under section 76.015(c) of the Government Code.

Very truly yours,

GREG ABBOTT Attorney General of Texas

BARRY R. McBEE First Assistant Attorney General

DON R. WILLETT Deputy Attorney General — General Counsel

NANCY S. FULLER Chair, Opinion Committee

Mary R. Crouter Assistant Attorney General, Opinion Committee