Untitled Texas Attorney General Opinion ( 2015 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
May 11, 2015
The Honorable Lucinda A. Vickers Opinion No. KP-0019
Atascosa County Attorney
#1 Courthouse Circle Drive #3-B Re: Deposit of restitution funds ordered in a
Jourdanton, Texas 78026 criminal judgment by a statutory county court
(RQ-1231-GA)
Dear Ms. Vickers:
You ask whether restitution funds ordered in a criminal judgment by a statutory county
court and collected by the county clerk are funds "belonging to the county" such that they are
required to be deposited with the county treasurer or in the county treasury pursuant to section
113.021 of the Local Government Code. 1 You tell us that "individuals ordered ... to make
payments for criminal offenses" by the Atascosa County Court at Law make such payments to the
county clerk, which "include fines, court costs, and restitution, if applicable." Request Letter at 1.
The current practice, you explain, is that "[t]he county clerk accepts the payments, including the
restitution, and deposits the payment[s] into the fines and fees account in the county treasury. The
portion of the payment to be remitted as restitution and the name of the victim are documented by
the county clerk." Id. The county clerk submits monthly requests for approval and payment to
the county auditor, who then issues individual checks to victims entitled to receive restitution. Id.
You question whether this practice is appropriate in light of section 113 .021. Id. at 1, 4.
We begin with the statute authorizing restitution payments. A court "may order the
defendant to make restitution to any victim of the offense" or, in certain instances, to a crime victim
compensation fund established by statute. TEX. CODE CRIM. PROC. ANN. art. 42.037(a) (West
Supp. 2014). Such restitution is "[i]n addition to any fine authorized by law." Id. The court's
order
must require the defendant to: (i) make restitution directly to the
person or agency that will accept and forward restitution payments
to the victim ... ; (ii) make restitution directly to the victim ... ; or
(iii) deliver the amount or property due as restitution to a community
supervision and corrections department for transfer to the victim or
person.
1
See Letter from Honorable Lucinda A. Vickers, Atascosa Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y
Gen. at I, 4 (Nov. IO, 2014), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").
The Honorable Lucinda A. Vickers - Page·2 (KP-0019)
Id. art. 42.03 7(g)(4). Unless otherwise provided by the court, "the defendant shall make restitution
immediately." Id. art. 42.037(g)(3). Thus, under the plain language of the statute, if a court order
provides that restitution shall be paid to a county clerk, the clerk is to "accept and forward
restitution payments to the victim." Id. art. 42.037(g)(4).
Under chapter 113 of the Local Government Code, which governs the management of
county money, all "fees, commissions, funds, and other money belonging to a county shall be
deposited with the county treasurer by the person who collects the money." TEX. Loe. Gov'T
CODE ANN.§ 113.021(a) (West Supp. 2014) (emphasis added); see also id.§ 113.003 (West 2008)
(directing the county treasurer to receive "all money belonging to the county from whatever source
it may be derived" (emphasis added)). There are various other statutes directing the county clerk
to collect and deposit certain moneys into the county treasury, but none of the statutes encompass
restitution funds. See, e.g., TEX. Gov'T CODE ANN.§§ 25.0008 (West 2004) (referring expressly
to "the same fees as are prescribed by law relating to county judge's fees"), 51.402(c) (West 2013)
(describing fines and jury fees that are "for the use of the county"); TEX. Loe. Gov'T CODE ANN.
§ 133.052(c) (West 2008) (referring to statutorily-defined criminal and civil fees). This office has
previously concluded, however, that restitution on a bad check made "through" a court under a
specific Penal Code provision is not "money belonging to a county" for purposes of section
113.021. Tex. Att'y Gen. Op. No. DM-396 (1996) at 4 (noting that restitution with such pass-
through handling "clearly does not belong to the county; rather, it belongs to the holder of the
dishonored check").
Whether any particular funds "belong to the county" depends on the nature of the particular
funds. Tex. Att'y Gen. Op. No. JC-0031 (1999) at 2. Restitution is a statutory right of a crime
victim, serving in part to "restor[e] the victim to the status quo and forc[e] an offender to address
and remedy the specific harm that he has caused." Hanna v. State, 426 S.W.3d 87, 91 (Tex. Crim.
App. 2014). The Court of Criminal Appeals has acknowledged that, in enacting the restitution
statute at issue, "[t]he legislature intended restitution to adequately compensate the victim of the
offense in the course of punishing the criminal offender." Id. (quotation marks omitted).
Consistent with this purpose, the specific language of article 42.037 of the Code of Criminal
Procedure directs that restitution payments are to be made "to the victim," either directly or by
way of transfer, suggesting that the money is never meant for use by the county. 2 TEX. CODE
CRIM. PROC. ANN. art. 42.037(a), (g)(4) (West Supp. 2014). Therefore, a court would likely
conclude that restitution funds ordered in a criminal judgment by a statutory county court and
collected by the county clerk pursuant to article 42.037 of the Code of Criminal Procedure are not
funds "belonging to the county" required to be deposited with the county treasurer or in the county
treasury pursuant to section 113.021 of the Local Government Code.
2
This view is bolstered by the fact that a check paid by the county treasurer for restitution does not have to
be countersigned by the county auditor who normally countersigns a disbursement "to validate it as a proper and
budgeted item of expenditure." TEX. Loe. Gov'T CODE ANN.§ 113.043 (West Supp. 2014) (referring to restitution
as money "collected on behalf of an individual as authorized by Jaw" (emphasis added)); see also id. § J 12.006(a)
(giving the county auditor general oversight of books and records of officers who collect money "that is intended for
the use of the county or that belongs to the county").
The Honorable Lucinda A. Vickers - Page 3 (KP-0019)
SUMMARY
A court would likely conclude that restitution funds ordered
in a criminal judgment by a statutory county court and collected by
the county clerk pursuant to article 42.03 7 of the Code of Criminal
Procedure are not funds "belonging to the county," and thus they are
not required to be deposited with the county treasurer or in the
county treasury pursuant to section 113.021 of the Local
Government Code.
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
BECKY P. CASARES
Assistant Attorney General, Opinion Committee