Untitled Texas Attorney General Opinion ( 1993 )

QBfficeof tfie 2Mmep Qiheral
Qtate of Qexae
DAN MORALES
A*oltNElGENERAL June 23.1993
Honorable IvRkeDriscoll OpinionNo. DM-230
Haniscolmty Attorney
1001 Preston, Suite 634 Re: Whether article 45.54 of the Code of
Houston, Texas 77002-1891 Criminal Procedure permits a justice of the
peace to dismiss a complaint against a
defendant who has thiled to successtblly
complete a driving safety course (.RQ-512)
Dear Mr. Driscoll:
On behalf of a justiceof the peace in Harris County, you ask whether article 45.54
oftheCodeofCriminalProc&re permitsajusticetodismissacomplaintagainsta
def&dant who bas failed to suw complete a driving safety course. We conclude
that attide 45.54 does not permit a justice to do so.
Artide 45.54 provides in pert&m part:
(1) On a plea of guilty or nolo contendere by a &bmiant or on a
finding of guilt in a misdemeanor case punishable by tine only and
payment of all court costs, the justice may defer further proceedings
without atezing an adjudication of guilt and place tbe defendant on
probation for a period not to exceed 180 days. . . . .
(2) During the deferral period, the justice shall require the
defbndant to successtblly complete a. . . driving safety course, if the
offi alleged is an offense involving the operation of a motor
vehicle . . . .
(3) During said deferral period, the justice muy require the
defendant to:
. . . .
(4) At the conclusion of the deferral period, if the defendant
presents satisfactory evidence that he has complied with the
requirements imposed, the justice shah dismiss the complaint, and it
shah be clearly noted in the docket that the complaint is dismissed
and that there is not a final conviction. Otherwise, the justice may
proceed with an adjudication of guilt. At& an adjudication of guilt,
the justice may reduce the tine assessed or may then impose the fine
Honorable MikeDriswll - Page 2 (DM-230)
assesA,lessanyportionoftheassemedtinethatltasbewpatd. If
thewmplaintisdismissed,,aspecialeqwsenottoeXwdthe
amount of the tine amessed may be imposed.
(5) If at the wnclusion of the deferral period the dekndant does
not present satisktory evidence that the defendant wmplied with
the requirements impostd, the justice may impose the fine d
or impose a lesser tine. The imposition of the tine or lesser Sne
constitutes a tkal wnviction of the defendant.
. . . .
Code Crim. Proc. art. 45.54 (emphasis added).
We conclude that article 45.54 does not permit a justice of the peace to dismiss a
wmplaint against a defendant who fails to suwesslitlly complete a rewired driving safety
course for the following reasons. Section (2) states that a justice “shulf rewire the
dehdmt to suwessfdly complete a. . . driving safety course.” Although the wnnotation
of the term “shall”is not always mandatory,t we believe the 1~ intended it to be
mandatoq in this wntext. The use of the term “shaY in section (2) is in direct contrast to
the use of the term “may” in section (3), which provides that “the justice mq rewire the
dektdant to” comply with certain other wnditions, such as posting a bond or submit@
to pro&&onal wmselhg. In enachg section (2). the @slatme dearly intended to
mandate justices to rewire defembts to sutxes&lly complete driving safety courses.
Furthermore, we note that section (2) was added to article 45.54 by the 1~
in 1991. and the&ore p&dates the artide’s other provisions. See Acts 1991,72d Leg.,
ch. 835.5 4. at 2889. Therefore, to the extent section (2) wntlicts with other sections of
artide 45.Y section (2) must prevail. Gov’t Code 5 3 11.025(a) (Code Construction Act)
(ii statutes are irrewwilabl~ the statute latest in date of ewcbwnt prevails); see ok0
Attorney General Opiion I’M-1237(1990) at 6. In addition, sections (4) and (5) set forth
a justice’s options when a defendant has tailed to comply with the requiwments, but do not
expressly address whether or not a justice must requim a defendant to successfully
wmplete a driving safety wurse. Section (2). on the other ha& specifically addresses
this issue. Therefore, in the event that sections (4) and (5) wntlict with section (2), the
more specitic provision, section (2), must prevail. Gov? Code 3 3 11.026(b) (ii a wntlict
between a general provision and a special provision is irrewncilable, the special provision
prevails as an exception to the general provision, unless the general provision is the later
IAs this0Bicenotodin AttomeyGcaerslOpinionWW410 (1959),the lcgislalumik4pmUy
ascs”may-md”shau”ia~ ly. AaorncyGenual opinion WW-610 at 3 (quo&g Hess %
,SSkhner
En& Co. Y. Tmty, 203 S.W. 593, 594 (lkx. 1918)). Whicbcva word tie lcgislalurehas
sbaPmistokamstNal in BCEOrdaOCC with the le&lstivc intoat. Id. (qwtiq Hess & SkinnerEn&
Ca. 203S.W. at 594).
HonorableMikeDtiscoU - Page 3 GM-230)
enactment and the manifest intent is that the general provision prevail); see aku Attorney
General Opinion JM-1237 at 6.
TheCrstsentenceofsection(4)requiresajusticetodismissawmplaintagainsta
defendant who has complied with the requirements imposed, but the remain@ sentences
are less specific about a justiw’s duties with respect to a defendant who has failed to do
so. Youpointoutthatthe mmaining three sentences of section (4) and section (5) are
somewhat ambiguous. You state that these provisions can be wnstrued to permit a justice
to dismiss a wmplaint against a defendsnt who has failed to succes&Uy complete a
driving safety wurse. In particular, you base your contention on the &al sentence of
section (4). That sentence, which follows two sentences regarding a justice’s options
when a defendant fails to comply with the requirements imposed, states, “If the wmplaint
is dismissed, a special expense not to exceed the amount of the tine may be imposed.”
You believe that this sentence can be construed to expressly permit a justice to dismiss a
complaint agsinst a defendant who has tailed to succemfuUycomplete a driving safety
course. You also rely on the repeated use of the term “may” in the remainder of section
(4) and in section (5). which you believe suggests that a justice has the discretion to decide
whether or not to proceed with an adjudication of guilt or to impose a tine in such
circumstMces You suggest that the last three sentences of section (4) and section (5)
wntlict with sAtion (2). We disngree.
The last three sentences of section (4) and section (5) predate section (2). and do
not distinguish behveen situations in which a defendant has failed to succemgdly complete
a driving safety course, a requbement which a justice is msndated to impose under section
(2). and those in which a defendant has failed to comply with requirements under section
(3), mquirements which ajustice may impose at his or her discretion. These provisions do
not expressly permit a justice to dismiss a wmplaint against a de&ndant who fails to
sue complete a driving safety course, and need not be read to do so. Rather, the
last three sentences of section (4) and section (5) can be harmonized with section (2) if
they are wnstrued to permit justices to dismiss complaints against defbndants who Gil to
successMy complete requirements imposed pursuant to justices’discretion under section
(3), but not to permit justices to dismiss complaints against defendants who fail to
sudy complete a driving safety course.
Accordingly, we conclude section (2) mandates a justice to require a defendant to
successfuUycomplete a driving safety course, and that sections (4) and (5) do not permit a
justice to dismiss a complaint against a defendant who has failed to successg~Uycomplete
a driving safety course.
p. 1194
HonorableMikcDriswU - Page 4 W-230)
SUMMARY
Artide 45.54 of the Code of CriminalProcedure does not pekt
ajusticeofthepcacctodismissawmplaintagainstadefmdaatwho
has failed to sucwsdblly complete a driving safety course.
DAN MORALES
Attorney Oeneral ofTexas
WILL PRYOR
Fti As&ant Attorney General
MARYKELLER
Deputy Attorney Gmeral for Litigation
RENEAHlcKs
State Sokitor
MADELEINE B. JOHNSON
Chair, OphionCommittee
p. 1195