Legal Articles
Deferred FineAn Alternative Disposition
For Class C Misdemeanors
BY THOMAS E. BAKER AND CHARLES P. BUBANY
More than twice as many non-traffic
misdemeanors punishable by fine only,
Class C misdemeanors, are filed in the justice of the peace and municipal courts of
Texas each year than all other misdemeanor
and felony cases combined.1 Before September 1981, these courts had no express
statutory authority to probate any fine assessed. In fact, the 1979 amendments to the
Adult Misdemeanor and Probation Law
expressly limited probation authority to
"courts of record, " thereby excluding justice
of the peace and most municipal courts. 2
Before these amendments, the statute did
not expressly exclude these courts, but the
law had been interpreted as making misdemeanor probation unavailable to defendants convicted of offenses with a maximum
punishment of a fine not to exceed $200.3
It is no secret that some justice of the
peace and municipal courts did engage in
probation-like activity despite the lack of
express authority.4 In some instances, an
informal probation was accomplished by
simply holding the complaint for a time
and dismissing it on the accused's good behavior - a kind of desk drawer" probation . Other judges, rather than deferring
prosecution, entered a conviction but postponed sentencing to give the defendant an
"opportunity," purely voluntary, of course,
to mitigate the punishment by making restitution or performing some community
service which would be taken into account
when the judge eventually entered sentence.
Now, judges of courts not of record no
longer need resort to such dubious informal
devices. The new Article 45.54 of the Texas
Code of Criminal ProcedureS gives these
/I
February 1983
Texas Bar Journal
163
Legal·Articles
courts probation authority, without expressly referring to it as such. 6 The terms of the new legislation,
its potential uses and some likely problems in its
application are conside.r:ed in this article.
The major characteristics of th~ article 45.54 are:
(1) it is applicable to all Class C Misdemeanors,
except traffic offenses;
(2) the judge has discretion to suspend the imposition of a fine and defer final disposition for up to
,
180 days;
(3) the judge may impose probation-Iikeconditions to be performed during the deferral period;
(4) at the conclusion of the deferral period,
upon presentation of satisfactory evidence of cOmpliance with the conditions imposed, the judge has
discretion to: (a) dismiss the complaint and assess a
special e,xpense not to exceed $50; (b) reduce the
assessed fine; or (c) impose the assessed fine;
(5) expungement of the records, which would
otherwise be avaHable; is precluded if the complaint is dismissed.
These major characteristics raise several significant issues.
Covered Offenses
Article 45.54 applies to all fine-only misdemeanors except traffic offenses under article 670Id
(Uniform Act Regulating Traffic on Highways). 8 It
thus includes · ordinance violations, 9 non-traffic
Class C misdemeanors,lo and those traffic misdemeanorspunishable by fine only which are defined
by other than Article 670Id. In this latter group are
offenses such as violations of the Compulsory Liability Insuranc~ Law, whi<;h was enacted as an
amendment to the Motor Vehicle Safety Responsibility Act." Even those offenses which, although
traffic-related, are charged as non-traffic Class · C
misdemeanors apparently would be covered. The
most common example would be a OWl offense
charged as the lesser inchtded Class C misdemeanor
of public intoxication. 12 In the past, the municipal
court or justice of peace court has been limited to
fining the defendant up to $200 plus statutory-required costs,I3 Now, these courts have authority
similar to that of the county court to require an
accused to meet certain conditions such as submission to an alcohol rehabilitation program. 14 The
ultimate effect of Article 45.54 is to make the deferred execution of fine procedure available in the
164 Texas Bar Joumal
February 1983
case of any fine-only misdemeanor for which the
propation-like driving safety course option is not
authorized. IS
Invocation
By its express terms, Article 45.54 lodges complete discretion in the judge to invoke · its provisions. While the burden of establishing eligibility
may be on the defendant,16 presumably the judge
may exercise sound discretion in granting or denying this type of probation. 17 The court apparently
may invoke Article 45.54 sua sponte, even if the
defendant objects to deferral and requeSts i:rnmediate imposition of sentence. Although there appears
to be no right under Texas law to refuse probation,
the relationship between probationer and court has
been characterized as contractual in nature. 18 Imposition of an unwanted probation on a defendant
who considers it more burdensome than immediate
payment of a fine makes it more penal than contractual. Moreover, in a situation in which a defendant has indicated a reluctance or unwillingness
to comply with proposed conditions, to nevertheless impose them appears to be at best an empty act
and at worst a frustration of the spirit of the statute. 1•
Deferral Period
The length of the deferral period, which may be
for any number of days up to a maximum of 180
days, is the same as the period of probation allowed
for Oass B misdemeanors under the Misdemeanor
Adult Probation and Supervision Law, which ties
the permissible length of probation to the applicable maximum imprisonmenfO(I80 days jail).21 Unlike Class B misdemeanor probation, however,
Class C misdemeanor deferral cannot be rationalized as an alternative to the potentially corrupting
effects of jaU because Oass C miSdemeanors are
punishable by fine only. Instead, it reflects an orientation toward having the court take a positive approach to rehabilitating the offender, which provides the justification for the extension of
jurisdiction accomplished by allowing deferral on
condition. 22
In the case·of deferred sentence probation under
the adult felony or misdemeanor probation laws,
the date from which the time for filing a motion for
new trial or for giving notice of appeal is counted
from the date on which the court grants. proqa;..
tion.23 By analogy, the defendant on whom the
court has imposed conditions under Article 45.54
would have 9ne day after the date the court defers
imposition of the fine to file amotion for new trial24
and 10 daysin which to perfect his appeal to the
county court. 25 Unless the court indicates otherwise
in its order, the deferral period would likely begin
to run immediately from the time the conditions are
imposed by the order. If so, the deferral period
would include the time for filing a new trial motion
and an appeal.
To eliminate any potential confusion, a judge
should state in his order that the deferral period
starts either on the date of the order, on the date the
motion for new trial, if filed, is overruled, or on the
date when the time for filing an appeal has expired.
As a matter of practice, to avoid confusion, the
judge should specify both the beginning and ending
dates of the deferral period in.the order.
Posting Bond
Although referred to as a i'bond," the requirement that security for payment of the assesSed fine
be given is really nothing more than a fine deposit.
Case law requires that the defendant be .given an
option of either posting a·bond in a criminal case
either by cash ora surety bond.26 In practice, however, it may be difficult to obtain a surety bond for
such a small amount .and, even if one can be ob~
tained, the proportionately ·large .bond fee would
discourage defendants from making the- bond by
other than cash. 2?
The statute does not expressly . require that the
financial circumstances of the accused be taken into
account when deciding whether to require the defendant to post bond. No doubt a defendant's indigency must be considered and a denial of the bene-:
fits of the deferral procedure solely 1;lecause of an
indigent's inability to make bond would violate
equal protection principles. 28 It is also implicit that a
bond should be required only in those instances in
which the court determines that it is necessary to
secure payment of the fine. Of ,course, if a judge
feels insecure about the likelihood of collecting the
fine or obtaining compliance with deferral conditions, the situation may not be appropriate for
invoking Article 45.54.
Conditions
In return for the judge's willingness to defer punishment, a .convicted .defendant typically must
agree to abide by a set of conditions. The legal
limits on probation conditions are at once well-developed · and vague, 29 and the . new Article 45.54
reflects as much.
Probation conditions may be of a general .nature
- a standard condition routinely imposed on all
probationers, or of a special nature - a condition
tailored to the individual situation. Conditions are
imposed to serv_e the sometimes conflicting goals of
fostering rehabilitation of the individual and protectingthe public. 30 While some probation statutes
in the past have imposed a list of general conditions
and provided the judge with discretion to impose
additional special conditions, Article 45.54 goes
one step beyond a more recent trend to impose a
single statutory general condition that the defendant lead a law-abiding life during the probation
period. 31 Article 45.54 imposes no general statutory
conditions. Instead, the Legislature, following existing legislation32 and case law/3 has empowered the
judge to impose any "reasonable condition." Under
this broad legislative delegation it remains for the
court first to determine what, if any, general conditions to impose in an cases and . secondly · what
special conditions to impose in a particular situation. The single extrastatutory condition which
should be . imposed as a ·general condition under
Article 45.54 is that the defendant not commit another federal, state or local crime during the deferral period. 34 Beyond this, the judge should presribe
additional coriditions to fit the situation.
Probation conditions must be reasonably related
to the nature and circumstances of the offense and
the history and characteristics · of the offender. 35
While broad, the court's discretion is not complete.
A condition of probation will be held invalid if it
(1) has no relationship to the ·crime for which the
defendant Was -convicted, (2) relates to conduct
which is itself not criminal and (3) requires or forbids conduct Which is not reasonably related to
future criminality.36 A condition of probation is
undesirable if it is unrelated to rehabilitation and
public protection, difficult to enforce, violates constitutional rights or arbitrarily imposes punlshment. 3?
The absence of specific guidelines in Article
45.54 suggests that judges and attorneys should be
alert to avoid unreasonable or unconstitutional
conditions. For e~ample,a condition that a member
of the Southern Baptist Church receive counseling
from a Methodist minister or that he make regular
visits to his own church might be unconstitutional
as an impermissible burden on the free exercise of
religion. A condition that allows indiscriminate
searches by the police of an individuars person or
residence would be an unconstitutionally overbroad infringement of Fourth Amendment rights. 38
An important question likely to.arise is whether
something akin to community-service probation
under the misdemeanor probation law is permissible. In the past, some courts have given a defendant
the option of "working off his fine" for .the city.
Without statutory sanction, this risky practice exposes ·the city to liability ·for injuries sustained by
the quasi-probationer: Arguably, the same problem
exists with an attempt to impose community Service
February1983
Texas Bar Journal
165
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166 Texas Bar Journal
February 1983
I
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under the new statute, without an express provision. First, it involves a restriction of liberty, although not as severe as incarceration but still a
significant restraint, which arguably cannot be imposed by a court with authority to fine only. 39 Second, no limit as to the nature or duration of community service is' established by the statute, unlike
the gerieral misdemeanor probation law.~o The absence of standards implies the lack of authority to
impose. Some judges may desire to be creative, but
caution is advised. Suppose a defendant is required
to rebuild a fence he had recklessly damaged. This
type of condition involves a kind of forced labor
outside the authority of a court with firte-onlyjurisdiction. In addition, the omission in Article 45.54
of a reference to "reparation" as an alternative to
restitution, unlike the general misdemeanor proba7
tionlaw,41 arguably reflects a legislative intent to
compensation but not reparation.
A guide towhat might be considered other recisonable special conditions under Article 45 .54 may
be found in the Misdemeanor Adult Probation arid
Supervision Law.' 2 These conditions should be used
as guidelines only.'Some obvious modifications are
necessary. For example, instead of a condition that
the defendant report ,t o a probation officer, he
might be required to report to the court or police or
even the defense attorney. Article 45.54 does expressly provide that two special conditions will be
deemed reasonable: restitution to the victim in an
amount not to exceed the assessed fine and professional counseling.
The statutory provision that restitution as a condition of deferral cannot exceed the amount of an
assessed fine is intriguing. The amount of restitution that can be ordered under ordinary felony and
misdemeanor probation is not limited by the maximum fine a~tho!ized for an offense but may be "in
any sum that the court shall determine. "43 If a
defendant were charged with the ClassC misdemeanor of reckless ' destruction of property, 4. for
example, the actual damages may often exceed even
the maximum allowable fine of $200. Or, in a
worthless check case, ' the check maybe in an
amount of more than $200; The ' reason for tying
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sanction limit is not immediately apparent. Since
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decision to so limit the amount may be supportable. An order of restitution of more than the potential fine would create a disincentive to compliance
since the cost of compliance in money terms would
be greater than noncompliance. Only in a few cases
in which the personal cost of conviction to the
defendant ' cannot be measured strictly ' in dollars,
such as in a theft case,46 might a defendant ,be
willing to pay a restitution amount in excess of the
maximum fine .
Another ' problem may be perceived regarding
the relationship of the offense charged and the resti-
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February 1983 Texas Bar Journal
167
Legal Articles
the case of the non-indigent, perhaps, but by analogy to the limit .on restitution noted above, it appears he could not be required to pay more than the
maximum amount of $200. If so, the utility of this
provision in fostering a meaningful counseling pro~
gram is limited.
Evidence of Compliance
tution order. The offense of criminal .mischief can
be prosecuted in the justice or municipal court
when the amount of pecuniary loss is alleged as less
than $S. 47 Consider whether restitution in the
amount of more than $5 could be required. The
answer probably is yes, if the complaint alleging
damage of less than $S is viewed simply as a lesser
included offense of a higher degree ofcriIllinal mischief. ' The complaint fixes the jurisdiction of the
court but is not conclusive of the amount of actual
damage.
It should be emphasized also thatrestitution is to
the victim only and cannot, be 'ordered to a third
party. Thus, if a bar .oWner were to receive restitution for damage arising out of '" barroom brawl,
the defendant must be charged, with reckless desfruction or criminal mischief rather than assault of
a patron, which would allow r~stitution only to the
person assaulted.
"
The "professional counseling" .c.ondition · raises
other questions. Who js .a . professi.onal . counselor
under the Article 45.54? CarUhe court require the
accused to pay thecost'o f coI,mseling7 If so, can it
order payment when the fees total more than the
amount of the Hne? The term "pI'.ofessional" would
literally require a person with :;pecial skill or training in c.ounseling. 48 It .certainly would include persons whose principal vocation is, counseling and
who are licensed as such. But what about persons
such as ministers with recognized expertise in counseling whose vocation is not dev.otedexclusively to
counseling? Probably th.ose petsons who either
hold themselves out or who ,are generally recognized as having expertise would be included . Attendance of a state-sponsored counseling program,
provided on a no-c.ost basis to the defendant, does
not raise a reimbursement problem: Byt such public
prograIlls.often.are not.available, ' Could tl:te cotjrt
require the cost of private counseiing be paid by the
defendant? In the case of an indigent, dearly not. In
168
Texas Bar Journal
Februaw1983
The statute has no provision for revocation of
the deferral order and accelerated imposition of the
fine before expiration of the deferral period.49 It
merely places the burden on the defendant to
present "satisfactory evidence" of compliance with
the deferral conditions at the end of that time. This
evidence apparently would not be that which meets
the standard of admissibility at trial. so The judge no
doubt would be required to .consider evidence with
some indication of reliability as satisfactory. But
how does 't he defendant prove that he has complied? Would his testimony under oath be satisfactory? What if this evidence were contraverted or
the judge had personal knowledge of noncompliance? Could the court take notice of other complaints against the defendant?
Due process would require only that the defendant be afforded an opportunity to present evidence
of compliance and notice, with an opportunity to,
explain, or rebut, of any information relied on by
the judge to find any condition had been violated. sl
In the absence of any contrary evidence, defendant's sworntestitnpny'shouldbe taken as prima
facie evidence, of cornpliar.se.
" -:.:.":'
Dismissal of the Complaint
By the statute's express provisions, the judge is
under no duty to dismiss upon satisfactory compliance with the conditions imposed - "the justice
may dismiss the complaint."s2 As a matter of practice, the judge should, as part of the deferred sentencing procedure, condition dismissal on satisfactory compliance. Due process would seem to
require automatic dismissal, if that is,;the understanding. There may be situations, . however, in
which .the judge wishes to leave his options open.
For example, in the ca~ of a personconvietedof
indecent exposure, the conditions might be to stay
out of trouble and to get a written report from a(
licensed psychiatrist or psychologist in six months.
If the report indicates the behavior i$ unlikely to
recur, the appropriate disposition may be dismissal.
Otherwise, the judge may wish to assess only a
nominal fine but leave the conviction intact.
In the case of an accused who only ' partially
complies with the conditions, the judge may wish
only to lower the fine . For example, if the order
requires counseling ~d no further violations, and
the accused fulfills both, the complaint will be dismissed. If he only does either, the fine will be lowered.
Special Expense
The special expense fee, which the judge has
absolute discretion to set at any amount not over
$50, is analogous to the probation fee in other
criminal cases. 53 As with the bond, however, the fee
must be waived for an indigent. The fee is to be
assessed only in those cases in which the complaint
is dismissed. The reason apparently is that payment
of a fine plus the special expense fee could result in
an amount above the jurisdictional limit. The fee is
collected in lieu of costs, which are not allowed
unless a judgment of conviction is entered. 54
Appeal
The Texas Court of Criminal Appeals has held
that the right to appeal is exclusively a matter for
the Legislature and a general grant of appellate
jurisdiction does not give the appellate court "authority to review every adverse order rendered by a
lower court."55 Incases subject to felony or misdemeanor probation, the Legislature has provided for
a double appeal of both the initial grant of probation and the decision to revoke probation. 56 The
Legislature did not address in article 45.54 the matter of appeal from, or right to review, a finding by
the trial court of noncompliance, a refusal to dis-
miss the complaint and a decision to impose the
deferred fine instead. In a similar context, the Court
of Criminal Appeals concluded that "evident policy
considerations underlying the conditional discharge
provisions of the Controlled Substance Act are sufficiently distinctive to warrant the conclusion that
the Legislature, by not providing for appellate review, intended there be none."57 The same conclusion likely applies to Article 45.54. Thus, the only
review the defendant will have is the de novo appeal to the county court within 10 days after the
sentence is announced and deferred .58 Any review
of the judge's exercise of discretion whether to dismiss the complaint on expiration of the ,deferral
period is left to an extraordinary remedy such as
mandamus, rather than direct appeal. 59
Conclusion
Even before passage of article 45.54, the press of
cases in the county courts has led to the filing in
inferior courts of many cases that could have been
charged as higher offenses. (In some cases, even the
non-offense of an attempted possession of marijuana has been used to invoke the jurisdiction of the
lower co~rt.) The new sentencing option of Class C
misdemeanors courts may be expected tqincrease
the activity of these courts.' The greater flexibility
may increase ' the attractiveness of plea bargaining
to reduce charges and to obtain theberiefits of the
deferral procedure in some cases, particularly theft.
The procedure undoubtedly will be used in cases of
technical violations for which there are mitigating
circumstances, such as ignorance of the law; or in
cases in which the primary cibjectiveof prosecution
is not to punish the offender but to obtain compliance with a regulatory statute. 60 Great~r use may be'
made of the Class C misdemeanor of issuing a
worthless check as a collection device. The practice
of reducing DWI charges to public intoxication also
might be expected to increase. A greater workload
and the additional burden of supervisingcourt-ordered "probation" will caUse administrative prob-
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February 1983 Texas Bar Journal 169
Legal Article~
lems for these courts. Financially, this may be alleviated by the "special expense" fee in deferral cases
which could be allocated to a fund for increased
staffing. The ultimate significancE! of the new deferral procedure, of course, cannot be fully discerned.
Because of its potential significance, however, Article 45.54 warrants careful consideration by attorneys and judges involved inmisdE!meanor cases.
A suggested form from the Article 45.54 order
follows:
1.
Over 900,000 non-traffic misdemeanors were
filed in 1980; all other criminal cases totalled
just over 320,000. Texas Judicial Council and
Office of Court Administration, Annual Report 132,147,162 & 171 (May 1980) .
2. TEX. CODE CRIM. PROe. ANN. art. 42.13,
§ 2(1). The Legislature has authorized municipal courts of record 'in the ,following cities:
Wichita Falls, Midland, Houston, Sweetwater,
EI Paso, Fort Worth, Lubbock, Longview, San
Antonio. TEX. crY. STAT. ANN. arts. 1200aa1200ii(Supp.1982).
3. Tex. AU'y Gen. Op. H-1l28 (Feb. 2, 1978).
ORDER
4. Consistent with the Texas Constitution, article
The Court orders that the defendant _ _ __
IV,section-llA, the Legislature expressly has
is guilty of the offense of _~_ _ _ _ _ __
empowered the Texas cOurts to impose probation in felonies, TEX. CODE CRIM. PROe.
[as found by the jury] and that his punishment has
been set as a fine of $,-----..,_ _ _~_
ANN. art. 42.12 (1979), and jailable misdeHowever, under the authority of Article 45.54,
meanors, TEX. CODE CRIM. PROe. ANN.
Texas Code of Criminal Procedure, the Court orart. 42.13 (Supp. 1982).
ders that the imposition of the fine is suspended for 5. Tex. Laws 1981, ch. 318, at 894, 'codified as
180 days [or less] from this <iate, on condition [that
TEX. CODE CRIM. PROe. ANN. art. 45.54
(Supp.1982) provides:
the defendant immediately' post a bond in the
amount of $
(amount of fine) to be
(1) Upon conviction of the defendant of
a misdemeanor ,punishable by fine only,
approved by the Court, * and] that during the term
for which imposition of the fine has been suspended
other than a misdemeanor described by Section 143A, Uniform Act Regulating Traffic
the defendant will:
on Highways as amended (Article 6701d
1) make restitution to the victim of the offense
Vernon's Texas Civil Statutes), the justice
;
up to the amount of $
2) submit to professional counseling as follows:
may suspend the imposition of the fine and
defer final disposition of the case for a per3) comply with the following conditions:
iod not to exceed 180 days.
(2) During said deferral period, the justice may require the defendant to:
(a) post a bond in the amount ofthe
4) and commit no offense against the law of the
fine assessed to secure payment of the
State or any other State of the United States.
The Court further orders ' that if, at the conclufine;
sion of , _ '_ days from this ,date, defendant
(b) pay restitution to the victim of the
offense in an amount not to exceed the
presents satisfactory evidence of compliance with
fine assessed;
the conditions impos~d [and shall pay to the Court
a special expense fee to be set by the Court, but not
(c) submit to professional counseling;
to exceed $50.00, *] the complaint will be dismissed.
and
. A copy of this order wasdelive~ed to the defend(d) comply with any other reasonable
ant on this date ..
condition, other than payment of all or
Signed and entered this _' _,_ day of _ _ __
part of the fine assessed.
19_
' _.
(3) At the conclusion of the deferral period, ' if the defendant presents satisfactory
evidence that he has complied with the reJudge Presiding
quirements imposed, the justice may dismiss
the complaint. Otherwise, the justice may
* Omit in cases of indigency.
reduce the fine assessed or may then impose
170 Texas Bar Journal
February1983
6,
7.
8.
9.
10.
11.
the fine assessed. If the complaint is dismissed, a speCial expense not to exceed $50
may be imposed.
(4) Records relating to a complaint dismissed as provided by this article may not
be expunged under Article 55.01 of this
code.
'
"Probation" may be defined as "a sentence not
involving ' confinement which imposes conditions and retains authority in the .sentencing
court to mocllfy the conditions of the sentence
or to resentence the offender if he violates the
conditions." ABA Standards Relating to the
Administration of Criminal Justice, ' Compilation (Probation) at 393 [hereinafter cited as
Probation Stap.dards J. Article 45.54 clearly satisfies this definition. To the extent that the
omission of any reference to the term "probation" in the statute itself was calculated to
avoid controversy that might have diminished
the .bill's chances of passing, it was obviously
successful. The bill attracted little attention.
TEX. CODECRIM. PROC. ANN. art. 55.01
(1979). "
TEX. Crv. STAT. ANN. art. 6701d,§ 143A
(Supp. 1982), which provides for completion of
a court-approved driving safety course in lieu
of prosecution, applies if "a person is charged
with a misdemeanor offense under this Act,
other th~n a violation of Section 50 or 51,
committ~dwhile operating a motor vehicle .
. . ." BeC<flUse section 50 (driving under the influence of drugs) and section 51 (reckless driving) involve jail terms, offenses under these
sections are outside the jurisdiction of Class C
misdemeanor courts. Also, only "moving" violations apparently are included within the .ambit of section 143A.
An ordip.ance punishable by fine only is a "misdemeanor." See TEX. PENAL CODE ANN. §§
1.07(a)(21) & 12.41(3)(1974).
.
TEi.PENALCODE ANN. § 12.23 (1974).
Offenses defined outside the Penal Code which
are punishable by .fine only are classified as
Class C misdemeanors. TEX, . PENAL CODE
ANN. § 12.41(1974). This category includes a
myriad of licensing and public welfare offenses . Note, for example, the large number of
such offenses in the Parks and Wildlife Code.
Tex. Laws 1981, ch. 800, at 3053, codified as
TEX. CIV. STAT. ANN. art. 6701h, §§ lA':lG
(Supp. 1982). Thus, a court may suspend imposition of the mandatory minimum fine of
$75 for a person convicted of failure to have
adequate liability insurance on condition that
such insurance be obtained. Compliance with
the condition and dismissal of the complaint
might not avoid the mandatory suspension of
license and registration under section IE however. See Tex. Att'y Gen. Op.MW-133 (Jan.
29, 1980) ' (Conviction "final" under deferred
sentence as ' opposed to deferred adjudication
probation).
12. CHIEF JUSTICE'S TASK FORCE , FOR
COURT IMPROVEMENT, JUSTICE AT THE
CROSSROADS: COURT IMRROVEMENT
IN TEXAS 4(1972). 'The result isthatthe city
gets the revenue, while the driver avoids the
loss of his driver's license and other disadvantages of a conviction for DW(" Id. See also
Comment, Statutory DWI al1d Its Interpretation by Texqs Courts, 14 HOUS.L. REV. 1082,
1102 (1977),For an opinion thattheoffense ,of
public intoxication may properly be a lesser
included offense of DWI, see' Tex. Att'y Gen.
Op.MW-197 (June 23,1980).
13. TEX. CODE CRIM. PROC. ANN. Arts. 4.11
(Justice Court Jurisdiction) & . 4.14 (Municipal
Court Jurisdiction) (1977). The total costs mandated by statl.lte are $6.00. TEX. CODE CRIM.
PROC. ANN. Art. 1083, § .3 (Supp. 1982)
($5.00 for Criminal .Justice Planning Fund);
TEX. Crv. STAT. ANN. Art. 4413 (29aa), §
9B(b) (Supp. 1982) ($1.00 for Law Enforcement
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Legal Articles
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14. TEX; CODE CRIM. PROC. ANN. Art. 42.13,
§ 6c (Supp. 1982) now provides that the court
shall require as a condition of DWI probation
that the defendant attend an alcohol program
unless the court waives the requirement for
good cause on a written motion by the defendant.
Judge Allen Gilbert of the San Angelo Municipal Court, for example, has utilized the Article 45.54 procedure successfully in connection
with violations of the'A1coholic Beverage Code
by minors. See TEX. ALCO. BEY. CODE §§
106.01, .04, .05, .07, .08 (1978). Imposition of
the fine is deferred on condition that the convicted minor attend an 8-hour "Alcohol Abuse
and Use" seminar, the cost of which is underwritten by nominal fees paid by the offender,
similar to those charged for the driving safety
course used in moving traffic violation cases.
15. See n. 8 supra. ,Parking, pedestrian or other
"non-moving" traffic violations, which apparently are not subject to the driving safety
course option, literally fall , within Article
45.54.
16. See Flores v. State, 487 S.W.2d 122 (Tex. Crim.
App. 1970). Article 45.54 does not contain the
vague standard applicable to misdemeanor
probation, of "the best interest of society and
the defendant," although this may be implicit.
See TEX. CODE CRIM. PROC. ANN. Art.
42.13, §3d(a) (Supp. 1982).
17. Burns v. State, 561 S.W.2d 516 (Tex. Crim.
App. 1978); Zubia v. State, 543 S.W.2d 389
(Tex. Crim. App. 1976).
18. See Bradley v. State, 564 S.W.2d 727 (Tex.
Crim. App. 1978) (en bane); McDonald v.
State, 442 S.W.2d386 (Tex. Crim. App. 1969).
19. Although none,.too-persuasive, the argument
could be made that any conditions imposed on
a recalcitrant offender are "unreasonable" under the statute. See n. 37 & accompanying text
infra.
20. TEX. CODE CRIM. PROC. ANN. Art. 42.13,
§ 3a (Supp. 1982).
21. TEX. PENAL CODE ANN. § 12.22(2) (1974).
22. The length of time the deferred defendant is
subject to the court's jurisdiction is relatively
long. Even if a defendant were permitted to
'1ay out" a maximum fine in jail ' at the going
rate of not less than $15 per day, he could be
172
Texas Bar Jourl)al
February 1983
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
jailed no longer than 13 days. TEX. CODE
CRIM. PROC. ANN. Art. 45.53 (Supp. 1982).
McIritosh v. State, 534 S.W.2d 143 (Tex. Crim.
App.1976). With deferred adjudication probation, however, a judgment of conviction is not
entered unless and until probation is revoked.
TEX. CRIM. PROC. ANN. Art. 42.12, § 3d
(1979 & Supp. 1982) & Art. 42.13.13, § 3d
(Supp. 1982); Crutchfield v. State, 560 S.W.2d
685 (Tex. Crim. App. 1978). Article 45.54 authorizes a type of deferred sentence rather than
deferred adjudication probation.
TEX. CODE CRIM. PROC. ANN. Art. 45.45
(1979).
TEX. CODE CRIM. PROC. ANN. Art. 4416
(1979).
See Ex ,parte Deaton, 582 S.W.2d 151 (Tex.
Crim. App. 1979).
In some areas, bail bondsmen may be reluctant
to write bonds for the purpose of securing payment of a fine because of the risk of forfeiture.
The standard fee for small bonds may be as
much as $50.
See Tate v. Short, 401 U.S. 395 (1970); Ex parte
Minjares; 582 S.W.2d 105 (Tex. Crim. App.
1979) (en bane).
See generally S. KRANTZ, THE LAW OF
CORRECTIONS AND PRISONERS' RIGHTS
652-61 (2d ed. 1981); Imlay & Glasheen, See
What Condition Your Conditions , Are In , 35
FED. PROB. 3 (1971); Jaffe, Probation With a
Flair: A Look at Some Out-of-the Ordinary
Conditions 46 FED. PROB. 25 (1979).
Presumably, other objectives of the criminal
code are less prominent in a probation situation. See TEX. PENAL CODE ANN. § 1.02
(1974).
See 18 U.S.c.A. 4209(a); TEX. CODE CRIM.
PROC. ANN. §§ 42.12 (1979) &42.13 (Supp.
1982); Probation Standards 3.2. But see S.B.
No. 125, amending Article 42.12 (mandatory
condition of victIm restitution or reparation in
felony probation); S.B. No. 368, amending Article 42.13 (6c) (educational program mandatory in driving while intoxicated probations).
See TEX. CODE CRIM. PROC. ANN. §§
42.12 & 42.13 (Supp. 1982).
,
See, e.g., Morales v. State, 541 S.W.2d 443
(Tex. Crim. App. 1976); Tamery v. State, 534
S.W.2d 686 (Tex. Crim. App. 1976); Salinas v.
State, 514 S.W.2d 754 (Tex. Crim. App. 1974);
Flores v. State, 513 S.W.2d66 (Tex. Crim. App.
1974); McDonald v. State, 442 S.W.2d 386
(Tex. Crim. App. 1969).
34. Probation Standards § 3.2(a). See TEX. CODE
CRIM. PROC. ANN. Art. 42.13, § 6(1) (Supp.
1982). There may be some cases, however, in
which the court may desire to impose only
special conditions, for example, to refrain from
assaulting a spouse, or, even when the general
condition is imposed, to disregard a technical
violation, for example, a traffic offense, in deciding to dismiss the complaint.
35. See 18 U.S.c.A. § 4209 (Supp.19B1).
36. See In re White 97 Cal. App. 3d 141, 158 Cal.
Rptr. 562 (1979).
37. See generally Imlay & .Glasheen, See What
Condition Your -Conditions Are In 35 FED.
PROB. 3 (1971); Jaffe, Probation With A Flair:
A Look at Some Out-ai-the Ordinary Conditions 46 FED. PROB.25(1979).
38. Tamez v. State, 534 S.W.2d 686 (Tex. Crim.
App.1976).
39. No courtcan require an indigent who is financially unable to pay a fine to "layout" or
"work off" the fine . TEX . .CODE CRIM.
PROC. ANN. Art. 45.53 (Supp. 1982), Tate v.
Short, 401 U.S. 395 (1970). There is some question whether even a nori-indigent person can be
required by a court with fine-only sentencing
authority to satisfy a fine by jail time. Aspart
of its original opinion iri Ex parte Minjares (Tex.
Crim. App., No. 57,136, enbanc, Feb. 2,
1979), the court rioted that by vh:tueof Texas
Code of Criminal Procedure, article 43.03, a
defendant c~uld not be jailed for default in
payment of a fine for any longer than the maximum imprisonment authorized for the offense.
Hence, the .court concluded that a municipal
court having no authority to impose any jail
term as part of its original sentence, could not
jail the defendant for default in payment of a
fine, notwithstanding Article 45.52(ci), which is
repealed by implication. (Article 45.52 authorizes imprisonment of a defendant for failure to
pay a _fip.e.) In response ' to the opinion, an
amendment to Article 43,03 (S.B: 1241), expressly authorizing jail for the defaulting defendant in fine-:only cases, was proposed in the
1979 legislative Session, but it died in committee. At about the same time, the court published a final opinion in which the comments in
the original slip opinion concerning statutory
authority under article 43.03 were excised. Ex
parte Minjares 582 S.W.2d 105 (Tex. Crim.
App. 1979). The question whether a Class _C
misdemeanor court ' can jail a defaulting defendant remains unresolved.
40. , TEX. CODE CRIM. PROC. ANN. Art. 42.13,
§ 3B(d) (Supp. 1982).
41. TEX. CODE CRIM. PROC.ANN. Art. 42.13,
§ 6(8) (Supp. 1982).
42. Terms and conditions of probation may include
but shall not be limited to the conditions that
the probationer shall:
(1) commit no offense against the laws of this
state or of any other state or of the United
States;
(2) avoid injurious or vicious habits;
(3,) avoid persons ,o r places of disreputable or
harmful character;
(4) report to the probation officer as directed
by the court or probation officer and obey
all rules and regulations of the probation
department;
(5) peI'II)it the probation officer to visit him at
his home or elsewhere;
(6) ', workfaithlully at suitable employment as
far ,as possible;
(7) remrunwithin a specified place;
(10) participate in any community-based program or participate.in an alcohol or drug
-abuse treatment or education program
and abstain from the use of alcoholic beverages or specified drugs at all times or
under certain circumstances; . . ;
TEX. COOECRIM. PROC. ANN. Art. 42.13,
§6 (Supp.19~2). Not all conditions from the
statute are , Hsted because, some obviously
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February 1983 Texas Bar Journal 173
Legal Articles
. would be inapplicable to Article 45~54 probation, such as a requirement for reimbursement
of appointed counsel.
43. TEX. CODE CRIM. PROC. ANN. Arts. 42.12
§ 6(h) (1979) & 42.13 § 6(8) (Supp. 1982).
44. TEX. PENAL CODE ANN. § 28.04 (1974).
45. $ee Tex. Att'y Gen. Op. No. MW-222 (Aug.
20,1980) (Justice of the Peace not authorized to
collect restitution for holder of dishonored
check).
,46. A theft conviction can have serious collateral
effects. See, e.g., TEX. CODE CRIM. PROC.
ANN. Art. 35.16(a)(2) (1966) (exclusion from
jury). See also Barriers to Exoffender Employment in Texas (COMP-State Bar of Texas 1976).
47. TEX. PENAL CODE ANN . § 28.03(b)(1)
(1974).
48. WEBSTER'S NEW COLLEGIATE DICTIONARY919 (1974)
49. The judge arguably has the inherent power,
notwithstanding the 'absence of express authority, to rescind his order and to ,impose the fine
on good cause, after notice and an opportunity
to be heard to the defendant. Compare TEX.
CODE CRIM. PROC. ANN. Art. 42.13, § 8(a)
(S~pp. 1982).
50. SeeTex. Att'y Gen. Op. No. MW-185 (May 28,
1980) (evidence of completion of driving safety
course). The judge need only decide the evidence is "satisfadory," not necessarily admissi, ble tinder normal rules of evidence.
STATE BAR
GRIEVANCE COMMITTEE REPRESENTATION
51. See Williams v. Oklahoma, 358 U.S. 576
(1959); Townsend v. Burke, 334 U.S. 736
(1948) . See also Cross v. Metcalfe,582 S.W.2d
156, 157 (Tex. Crim. App. 1979) (en bane)
(Roberts, J., dissenting); Bradley v. State, 564
S.W.2d 727 (Tex. Crim. App. 1978) (en bane).
52. TEX. CODECRIM. PROC. ANN. Art.
45.54(3) (Supp. 1982).
53. Compare TEX. CODE CRIM. PROC. ANN.
Art. 42.12 § 6a(a) (1979) (felonies) & Art. 42.13
§ 6a(a) (Supp. 1982) (misdemeanors).
54. See Tex. Att'y Gen. Op. No. MW-162 (April 7,
1980).
55. McIntyre v. State, 587 S.W.2d 413, 416 (Tex.
erim. App. 1979).
56. TEX. CODE CRIM. PROC. ANN. Art. 42.12
§ 8(b) (1979) & (Art. 42.13 § 8(a) (Supp. 1982).
57. Mclntyre v. State, 587 S.W.2d 413, 417 (Tex.
Crim. App. 1979).
58. TEX. CODE CRIM. PROC. ANN. Art. 44.16
(1979).
59. See Houlihan v. State, 579 S.W.2d 213 (Tex.
Crim. App. 1979). The writ of mandamus will
lie to review a discretionary act only when it is
a "clear abuse of discretion," however. Ordunez v. Bean, 579 S.W.2d 911,914 (Tex. Crim.
App. 1979) (Phillips, J., concurring and dissenting). Hence the judge's discretion under Article 45.54 is virtually absolute.
60. For example, a parent convicted of failure to
require a child to attend school is subject to a
maximum fine of only $25 for a first offense.
TEX. EDUC. CODE ANN. § 4.25(a) (Supp.
1982). Also, in domestic assault Cases, the deferral procedure could be more effective in preventing future assaults than the dubious alternative of a peace bond. See . Steele,
Constitutionality of Peaee Bonds, 36 TEX. B. J.
303 (1973).
• LEGAL MALPRACTICE
• REPRIMAND , SUSPENSION ,
AND DISBARMENT LITIGATION
• LEGAL ETHICS OPINIONS
WAYNE H. PARIS
ATTORNEY AT LAW
(713) 780-1725
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G
'--~ll . S TlJ!<
174
Texas Bar Journal
!lex fil,:7)
. 1 fX;\S 77 ?(iH
February 1983
Editor's Note:
A substantially similar article by the same authors
appeared in the South Texas Law Journal, vol. 22,
no. 2, p. 249.
* The ,!uthors gratefully acknowledge the suggestions provided by the Honorable Steve Russell,
Municipal Court Judge in Austin, who was the
principal draftsman of the ' statute which is the
subject of this article. The opinions expressed,
however, are those of the authors alone.