Untitled Texas Attorney General Opinion ( 2015 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
August 10, 2015
The Honorable Renee Ann Mueller Opinion No. KP-0030
Washington County Attorney
100 East Main, Suite 200 Re: Whether a county attorney with criminal
Brenham, Texas 77833 jurisdiction may, pursuant to section 41.005,
Government Code, retain a commission on
bond forfeiture collection (RQ-0010-KP)
Dear Ms. Mueller:
You state that your office "has criminal jurisdiction over adult misdemeanors and
represents the State in bond forfeiture proceedings arising out of these criminal proceedings."'
You ask "whether section 41.005 of the Government Code authorizes a County Attorney to
separate a portion of bond forfeiture collections as a commission without the approval of the
commissioners court." Request Letter.
Subsection 41.005(b) of the Government Code states that a "district or county attorney may
retain a commission from money collected for the state or a county. The amount of the commission
in any one case is 10 percent of the first $1,000 collected, and five percent of the amount collected
over $1,000." TEX. Gov'T CODE ANN. § 41.005(b) (West 2004). A prior opinion of this office
addressed whether section 41.005 authorizes a district attorney to retain a commission on money
obtained through bond forfeiture proceedings without the approval of the commissioners court:
See Tex. Att'y Gen. Op. No. GA-0997 (2013) at 1. Construing the statute and considering other
pertinent law, the opinion concludes, in part:
Section 41.005 of the Government Code authorizes a district
attorney to separate a portion of bond forfeiture collections as a
commission without the approval of the commissioners court.
1
See Letter from Mr. John Winkelmann, Ass't Washington Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y
Gen. (Feb. 11, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). See
also TEX. CODE CRIM. PROC. ANN. art. 2.02 (West 2005) (stating duties of county attorney in criminal cases); Ranger
Ins. Co. v. State, 312 S.W.3d 266, 268 (Tex. App.-Dallas 2010, pet. dism'd) (stating, "It is well settled that bond
forfeiture cases are criminal matters ... .");In re State ex rel. Rodriguez, 166 S.W.3d 894, 897-98 (Tex. App.-EI
Paso 2005, orig. proceeding) (recognizing that county attorney had authority to represent the state in bond forfeiture
proceedings under the constitution, statutes, and an agreement with the district attorney).
The Honorable Renee Ann Mueller - Page 2 (KP-0030)
Id. at 2. The opinion does not discuss county attorney authority because the requestor asked only
about district attorneys. Id. at 1. Section 41.005, however, plainly grants the same authority to
both county and district attorneys to whom the statute applies. TEX. Gov'T CODE ANN.
§ 41.005(a)-(b) (West 2004). Section 41.005 has not been amended since the opinion was issued,
and we are not aware of any change in pertinent law to cause us to reconsider the opinion's
analysis. Accordingly, subsection 41.005(b) of the Government Code authorizes a county attorney
with criminal jurisdiction who represents the state in bond forfeiture proceedings to separate a
specified amount of bond forfeiture collections as a commission without the approval of the
commissioners court. 2
2
You do not ask about the disposition of bond forfeiture commissions. While we do not address that issue
here, Attorney General Opinion GA-0997 explains the principles governing a district or county attorney who retains
a commission under section 41.005 of the Government Code. See generally Tex. Att'y Gen. Op. No. GA-0997(2013 ).
The Honorable Renee Ann Mueller - Page 3 (KP-0030)
SUMMARY
Subsection 41.005(b) of the Government Code authorizes a
county attorney with criminal jurisdiction who represents the state
in related bond forfeiture proceedings to retain a portion of bond
forfeiture collections as a commission without the approval of the
commissioners court.
Very truly yours,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
WILLIAM A. HILL
Assistant Attorney General, Opinion Committee