Untitled Texas Attorney General Opinion ( 1986 )

The Attorney General of Texas
.Ql,ril
16. 1986
JIM MATTOX
Attorney General
Honorable Mike Dris~:oll Opinion No. JM-522
Supreme Court Building Harris County Attorxy
P. 0. Box 12546
Austin. TX. 76711. 2546
1001 Preston, suite 634 Re: Whether a justice of the peace
512/475-2501 Htiuston.Texas 77~IO2 may accept personal checks in payment
Telex 9101674-1387 'of fines, costs and/or judgments
Telecopier 512,475.0266
Dear Mr. Driscoll:
714 Jackson, Suite 700
Dallas, TX. 752024506 You ask several questions about the responsibilities of a justice
214i742.8944 of the peace in comection with the collection of fines, costs, and
judgments.
4624 Alberta Ave.. Suite 180
El Paso, TX. 799052793
A justice of the peace has authority to collect money payable
915/533-3464 under the Code of Criminal Procedure. Code Grim. Proc. art. 103.003.
The code provides that all fines and other undertakings whereby a
party becomes bound to pay the state "shall be collected in the lawful
,--I Texas. Suite 700 money of the United States only." Code Grim. Proc. srt. 43.02
,Ston, TX. 77002.3111
(emphasis added). Your first question is whether those statutes
7131223-5666
authorize a justice of the peace to accept a personal check in payment
of fines, costs, and judgments payable to the state.
808 Broadway, Suite 312
Lubbock, TX. 79401.3479 A check is not itself money. See Muldrow V. Texas Frozen Foods,
608/747-5236
299 S.W.2d 275, 27i-78 (Tex. 1957).- A check is generally considered
to be only conditional payment of an obligation, and mere delivery of
4309 N. Tenth, Suite S a check does not discharge an obligation. Meaders V. Biskamp, 316
McAllen, TX. 76601-1685 S.W.2d 75, 77 (Tex. 1958); Muldrou, 299 S.W.2d at 277. A check that
5121682~4547 is honored by a payee bank, however, results in the receipt of money.
See Muldrow, 299 S.W.2d at 278. Therefore, under article 43.02 a
200 Main Plaza. Suite 400 justice of the pe,%ce may accept a personal check as conditional
San Antonio, TX. 76205.2797 payment of fines, costs or judgments even though the check itself is
512/225-4191 not money.
An Equal Opportunity/
We note, howewr, that a public official is not bound to accept a
Affirmative Action Employer check. Muldrow, 290 S.W.Zd at 278. Also, because delivery of a check
does not discharge 3 debt, a defendant is not discharged from payment
of fines and costs :ifhis check is returned unpaid. See Code Grim.
Proc. art. 43.01 (defendant is discharged from costs and fines when
they are fully paid:l..
Your second question is:
May a justice of the peace discharge his lia-
bility for the acceptance of-a worthless check in
p. 2398
.Bonorable Mike Driscoll - Pa:ge2 (JM-522)
payment for fines, costs end judgments and for the
issuance of his official receipt by using due
diligence to collect same?
Justices of the peace are accountable for fines they impose and
judgments they render, and lthey must use due diligence in collecting
such fines and judgments:
Fines imposed end judgments rendered by
justices of the peace shall be charged against the
justice imposing 1or rendering the same. He may
discharge indebtc:dnessby filing with the county
clerk the treasurer's receipt for the amount
thereof, or by showing to the satisfaction of the
commissioners court that he has used due diligence
to collect the usme without avail, or that the
same have been satisfied by imprisonment or labor.
V.T.C.S. art. 1619. Your question seems to suggest that a justice of
the peace incurs a liability other than his liability under article
1619 if he accepts a check that is not honored. This is not so. As
far as his own accountability is concerned, a justice of the peace is
in the same position after he accepts a worthless check from a
defendant as he is when ha! has received nothing from the defendant.
His liability stems from ilrticle 1619, not from his acceptance of a
check. In order to discharge his liability under article 1619 a
justice of the peace must issue "any and all writs allowed by law to
enforce collection" of fines and judgments. - See Attorney General
Opinions JM-517 (1986); O-6740 (1945).
Your question also indicates concern about the effect of giving a
defendant a receipt for a check that is later dishonored. A receipt
merely signifies that the rlerty giving the receipt has received the
article mentioned in the receipt. State v. Watkins, 87 S.W.2d 184,
188 (MO. 1935). It is nothing more than evidence that something was
received, and it is subject to dispute by parol evidence. Humphries
V. Colorado Life Co., 170 S.W.2d 315, 318 (Tex. Civ. App. - El Paso
1942. writ ref'd). Your question assumes that s justice of the peace
becomes liable for payment of a check simply because he gives a
receipt for the check. 'Zou offer and we find no basis for that
assumption. Again, the l.iability of a justice of the peace for
payment of a fine is the liability provided for in article 1619.
Article 1619 does not make a justice of the peace a guarantor of a
check he accepts. See Nuldrow,
- --- 299 S.W.2d at 278 (when check for
taxes is returned unpaid, secretary of state should cancel record of
payment and take further st.epsto collect taxes). Of course, to avoid
disputes over whether payment was in fact made, it would be wise for
an official giving a receipt for a check to note on the receipt that
it is for a check and that the check does not discharge an obligation
unless it is paid in full.
p. 2399
Honorable Mike Driscoll - Eage 3 (JM-522)
Your final question is whether article 1656a. V.T.C.S., gives the
Harris County Auditor authority to prohibit a justice of the peace
from accepting personal checks. Article 1656a provides:
The County Auditor in counties having a popula-
tion of one hund;xninety thousand (190,000) or
more according to the last preceding or any future
Federal Census she,11prescribe the system of accoun-
ting for the co;;;;%and the forms to be used by the
District Clerk, tf,eDistrict Attorney and all county
and precinct offjTc:ersend by all persons in the
collection and disbursement of county revenues,
funds, fees, and all other moneys collected in an
official capacity%hether belonging to the county,
its subdivisions cr precincts, or to, or for the use
or benefit of, an:,person, firm, or corporation; he
shell prescribe the mode and manner in which the
District Clerk, the District Attorney and all county
and precinct officers shall keep their accounts, end
he shell have the power to require all officers to
furnish monthly, annual, or other reports under oath
of all moneys, tsxee. or fees of every nature
received, disbursed, or remaining on hand; end in
connection with such reports he shall have the right
to count the cash on hand with such officer, or to
verify the amount on deposit in the bank in which
such officer may ‘have placed the same for safe-
keeping. He sha:t:t have the power to adopt and
enforce such reg&tions not inconsistent with the
Constitution and Laws es he may deem essential to
the speedy and pr'oper collection and checking of,
and accounting for; the revenues and other funds and
fees belonging to the county or to any person, firm,
or corporation fa; whom any of said officers may
have made collect:E,ns,or for whose use or benefit
they may have rec#?zd or may hold such funds. All
of the fees, commissions, funds, and moneys herein
referred to shal:t be turned over to the County
Treasurer by suck, officer as collected, and such
money shall be deposited in the county depository in
a special fund to the credit of such officer and
draw interest for ,thebenefit of the county, which
funds, when so deposited in such depository, shall
be secured by the bond of such depository. There-
after the officer, may draw checks on the County
Treasurer to disburse said funds in the payment of
salaries end expenses authorized by law or in
payment to the county or to the persons, firms, or
corporations to rhom said funds may belong. The
Treasurer end the depository shall make no payment
unless such check is countersigned by the County
p. 2400
Honorable Mike Driscoll - Page 4 (JR-522)
Auditor. The deposit of funds in the County
Treasury shall not in any wise change the ownership
of any fund so df:posited except to indemnify said
officer and his bondsmen or other owners of such
funds for such fun,ds during the period of deposit
with the county. At the close of any fiscal year or
accounting period amowor hereafter fixed by law, the
County Auditor sh;Ll audit, adjust, and settle the
accounts of such officer. In the event the County
Auditor shall be unable to obtain proper reports or
an adequate accounting from any District Attorney,
District Clerk, county or precinct officer as herein
provided, either during or after his term of office,
the County Auditor shall have authority to enforce
an accounting thereof, and to take such steps at the
expense of the cornty as are necessary in his judg-
ment to protect tre interests of the county or of
the persons. firms, or corporations entitled to such
funds. (Emphasis added).
We conclude that the Narris County Auditor does not have the
authority to prohibit justices of the peace from accepting checks.
Article 1656a does not permit a county auditor to make rules contrary
to law. and the Texas Supreme Court has held that a public official
may accept a check as coniitional payment for an obligation that is
statutorily required to be paid in money. Muldrow v. Texas Frozen
Foods, 299 S.W.2d 275 (Tex. 1957). Also, we think that the duties and
obligations of a county auditor under article 1656a concern record-
keeping and handling of fur.ds. We do not think that a prohibition on
the acceptance of checks is within that grant of authority.
SUMMARY
Under article 43.02 of the Code of Criminal
Procedure, a justice of the peace may, but is not
required to, accs:pta check in payment of fines,
costs, and judgments. When a justice of the peace
imposes a fine, he is liable for the amount of the
fine. He may satisfy that liability by issuing
any writs available to enforce the judgment. The
Harris County Auditor may not prohibit county and
precinct officers from accepting checks.
JIM MATTOX
Attorney General of Texas
p. 2401
1
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c Honorable Mike Driscoll - Page 5 (3``522)
.
P
JACK HIGHTOWER
First Assistant Attorney Gmeral
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Comittec!
Prepared by Sarah Woelk
Assistant Attorney General
p. 2402