Untitled Texas Attorney General Opinion ( 1996 )

@ffice of tfp !ZlttornepQBeneral
atate of Qexati
DAN MORALES
ATTORSEYCENERAL May 31.1996
The Honorable Tim Rodgers Opinion No. DM-396
Wise County Auditor
P.O. Box 899 Re: Whether a justice of the peace may
Decatur, Texas 76234 maintain a checking account, separate from
the county treasury, into which he or she
deposits hot check restitution and fines and
related questions (RQ-809)
Dear Mr. Rodgers:
You have requested our opinion regarding several questions, all of which proceed
from a common fact situation. You explain that the justice of the peace in your county
maintains a “separate checking account” into which he deposits hot check restitution and
fines. From your question, we perceive that the justice’s separate checking account is
outside the county treasury. The justice of the peace reimburses affected check holders
and remits fines to the county treasurer.
You believe .section 113.022 of the Local Government Code requires the justice of
the peace to deposit hot check restitution and fines directly into the county treasury. You
finther believe that, if section 113.022 of the Local Government Code does not so require
the justice of the peace, you may promulgate or readopt a rule, pursuant to section
112.001 of the Local Government Code, requiring the justice of the peace to deposit hot
check restitution and fines directly into the county treasury. In essence, you ask us
whether your assertions are correct.
We first wish to discuss the justice of the peace’s collection of restitution, by
which term we assume you mean the amount for which the dishonored check was
written.* As we understand it, the justice deposits the restitution into a separate checking
account, from which the justice reimburses each dishonored check holder. In Attorney
General Opinion MW-222 this office considered whether the statutory predecessor of
Government Code section 27.006 prohibited a justice of the peace from collecting
restitution on dishonored checks. Attorney General Opinion MW-222 (1980) at 1. We
beiieve your question provides an opportunity to reexamine this opinion.
‘We assomethe term “restitotion”as you ose it does not includethe processingfee, not to exceed
$25, that article 9022, V.T.C.S., authorizes the holder of a dishonored check to mkt. Article 102.0071
of the Code of Criminal Procedure specifically authorizes a justice of the peace to collect from the
d&n&nt, in appropriatecases,and pay to the holder of a dishonored cheek the fee permitted by V.T.C.S.
article 9022.
The Honorable Tim Rodgers - Page 2 W-396)
The statutory predecessor to section 27.006 of the Government Code, article
6252-24, V.T.C.S., upon which Attorney General Opinion MW-222 was based, deemed
guilty of a misdemeanor any justice of the peace “who shall receive for collection or
undertake the collection of any claim for debt of others,” unless such collection was
expressly provided by law. Id. Attorney General Opinion MW-222 (1980) at 1. Thus,
“[a] violation occurs under article 6252-24 unless the justice of the peace is authorized by
some other statute to act as a debt collector for private individuals.” Id. The opinion
found no statute that would “bring a justice’s efforts to collect restitution under the
‘processes of law’ necessary to avoid the prohibition of article 6252-24.” Id. at 2.
Accordingly, the opinion concluded, a justice of the peace is unauthorized to collect
restitution on behalf of the holder of a dishonored check. Id.
The substance of V.T.C.S. article 6252-24, now codified as Government Code
section 27.006(a), has not changed since the issuance of Attorney General Opinion
h4W-222.* However, three years afler the issuance of that attorney general opinion, the
legislature added a new subsection (e) to section 32.41 of the Penal Code?
A person charged with [the offense of issuance of a bad check]
under this section may make restitution for the bad checks.
Restitution shall be made through the prosecutor’s office if collection
and processing were initiated through that office. In other cases
restitution may, with the approval of the court in which the offense is
filed, be made through the court, by certified checks, cashiers checks,
or money order only, payable to the person that received the bad
checks.
Act of May 28, 1983, 68th Leg., RX, ch. 911, 9 1, 1983 Tex. Gen. Laws 5050, 5050.
On the floor of the senate, Senator Santiesteban explained that because, at that time,
justices of the peace were unauthorized to collect restitution, a defendant who wished to
2Curreutly,section27.006(a) provida as follows:
A justice commitsan offenseif the justice:
(1) acceptsfor collectionor undertakesthe collectionof a claim for a
debt for another, unless the josticc acts under a law that prescribes the
duties of the justice; or
(2) accepts compensation not prescribed by law for accepting for
collection or ondenaking the collection of a claim for debt for another.
A justice of the peace who commits an offense under section 27.006(a) may be convicted of a
mi&meaaor punishableby a tine of between$200.00 and $500.00, inclusive,and may k removedfrom
office. Cod Code 8 27.006(b), (c).
3Tbe text that had cxmstitutcd section 32.41(e) of the Penal Code prior to 1983 was rcnumbcrcd
subsection (f) by the same bill that added the new subsection (e). See Act of May 28, 1983, 68th Leg.,
RS., ch. 911.5 1, 1983 Tex. Gcn. Laws 5050.5050.
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pay restitution in court could not do so. Debate on H.B. 1606 on the Floor of the Senate,
68th Leg. (May 26, 1983) (testimony of Senator Santiesteban) (tape available from Senate
Staff Services Office). Furthermore, no statute then in existence provided for the issuers
of bad checks to pay restitution. House Comm. on Criminal Jurisprudence, Bill Analysis,
H.B. 1606,68th Leg. (1983).
As enacted in 1983, therefore, section 32.41(e) of the Penal Code explicitly
permitted the issuer of a dishonored check to restitute the amount of the dishonored check
to its holder “rhrough the court, by certified checks, cashiers checks, or money order only,
payable to the person that received the bad checks.” (Emphasis added.) Of course, the
judge or justice of the peace presiding over the court in which the dishonored check
charge was filed must consent to receive the restitution.
In 1989 the legislature amended section 32.41(e) by the passage of House Bill 803,
which deleted the following language: “by certified checks, cashiers checks, or money
order only, payable to the person that received the bad checks.” See Act of May 20,
1989, 71st Leg., R.S., ch. 1038, 9 1, 1989 Tex. Gen. Laws 4172, 4172. The author of
House Bill 803, Representative Ovard, indicated that, despite the 1983 enactment of
section 32.41(e), defendants often came to court with restitution checks made out to the
court, not to the holder ofthe dishonored check. Hearings on H.B. 803 Before the House
Criminal Jurisprudence Comm., 71st Leg. (Apr. 10, 1989) (testimony of Representative
Gvard) (tape available from House Video/Audio Services Office). Because section
32.41(e) did not permit the court to accept the check unless it was made out to the
dishonored check holder, the court would “send the [defendant] away to go get another
one. Fifty percent never wme back.” Id. Representative Ovard apparently felt that by
changing the law to permit restitution checks made out to the court, in addition to
restitution checks made out to the dishonored check holder, the number of dishonored
check holders who receive restitution would be increased. Id.
The enactment and amendment of section 32.41(e) of the Penal Code overrule the
conclusion this offtce reached in Attorney General Opinion MW-222 (1980). We now
conclude that, in accordance with section 32.41(e), a justice of the peace may wnsent to
receive restitution on behalf of the holder of a dishonored check in a case filed in the
justice’s court. Significantly, the payment of restitution must be made “through,” not
“to,” the justice of the peace, that is, the money never loses its character as belonging to
the holder of the dishonored check.
If the defendant in a dishonored check case makes a check payable to the court,
not to the holder of the dishonored check, we believe we must examine chapter 113,
subchapter B of the Local Government Code to ascertain whether it controls disposition
of the funds. Section 113.021(a) requires a county officer who collects fees, commissions,
funds, and other money “belonging to a county” to deposit the money with the county
treasurer in accordance with any applicable procedures the county auditor has prescribed
under Local Government Code section 112.001 or 112.002. The county treasurer in turn
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will deposit the money in the county depository in a special fund to the credit of the
collecting officer. Local Gov’t Code $ 113.021(b).
Restitution that a justice of the peace receives,pursuant to section 32.41(e) of the
Penal Code merely passes “through” the court. The restitution clearly does not belong to
the county; rather, it belongs to the holder of the dishonored check. Consequently,
restitution received under section 32.41(e) of the Penal Code is not “money belonging to a
county” for purposes of section 113.021 of the Local Government Code: The justice of
the peace need not, therefore, deposit the money with the county treasurer.
We do not believe section 113.022 of the Local Government Code is inconsistent
with our conclusion. Section 113.022 requires a “county officer who receives funds” to
deposit “the tinds with the county treasurer on or before the next regular business day
ai& the date on which the tinds are received.” If the county officer fails to meet this
deadline, however, section 113.022 provides that the officer “must deposit the
fbnds . on or before the seventh business day after the day on which” the officer
received the finds. Section 1.13.022 permits that commissioners court of a county with
few- than 50,000 inhabitants to “extend the period during which” the officer must deposit
funds with the county treasurer, “but the period may not exceed” thirty days after the date
the officer received the funds.
We believe section 113.022 applies to the deposit of county !imds only. In 1985
the legislature inserted into V.T.C.S. article 1709a, section 2, one of the statutory
predecessors to section 113.021, the material that is now in section 113.022. See Act of
May 17, 1985, 69th Leg., RX, ch. 145, 5 1, 1985 Tex. Gen. Laws 669, 669-70. After
the 1985 amendment, article 1709a, section 2 provided in pertinent part as follows:
The County Treasurer in each county of this State shall receive
all moneys belonging to the county from whatever source they may
be derived. A county officer who receives funds shall deposit them
with the County Treasurer or his successor not later than the next
regular business day after the day on which the funds are received,
but in no event shall deposits be made later than seven business days
after receipt of said tinds with [one] exception
Any modifications to the material now in section 113.022 made during the 1987
codification are nonsubstantive. See Act of May 1, 1987, 70th Leg., RX, ch. 149,
caption, 1987 Tex. Gen. Laws 707, 707. Accordingly, we construe the material now in
4CJ Harris Comfy Y.Sellers,468 S.W.Zd950,955 (Tex. Civ. App.-Houston[lst Dist.] 1971).
rev’d on ofher grounds, 483 S.W.Zd242 flex. 1972) (concludingthat legislature enacted stahltory
pr&cessors to Local GovernmentCodesections112.002and 113.021(a)to apply to “all funds, including
those belongingto individuals,”countyofficerreceives). The court in Harris County explicitlylimited its
holding “to funds deposited in a court pursuant to interpleader where with regard to the protection and
custody of the fund the court is authorized to exercise its constitutional equitable power.” Id. at 958.
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section 113.022 to refer only to funds belonging to the county, even though section
113.022 does not explicitly limit its scope in such a way.
We also conclude the county auditor may not, under section 112.001 of the Local
Government Code, regulate the justice of the peace’s collection or deposit of restitution
the justice received pursuant to section 32.41(e) of the Penal Code. Section 112.001 of
the Local Government Code authorizes the county auditor of a county with a population
less than 190,000 to adopt rules and regulations “that the auditor considers necessary for
the speedy and proper collecting, checking, and accounting” of county fUnds.5 In
Attorney General Opinion JM-1263 this office determined that the grant of authority
provided by section 112.001 extends “only over Iimds that ‘belong to the county.“‘6
Attorney General Opinion Jh4-1263 (1990) at 2. We already have determined that
restitution a justice of the peace receives pursuant to section 32.41(e) of the Penal Code
does not belong to the county for purposes of section 113.021(a) of the Local
Government Code. We likewise conclude that such restitution does not belong to the
county for purposes of section 112.001 of the Local Government Code.
In sum, sections 113.021 and 113.022 do not apply to a justice of the peace who
receives restitution on behalf of a dishonored check holder pursuant to section 32.41(e) of
the Penal Code. We are unaware of any other statute that dictates how a justice of the
peace should handle such restitution. 7 Furthermore, section 112.001 does not authorize
the county auditor of a county with a population less than 190,000 to regulate the
“collecting, checking, and accounting” of restitution a justice of the peace receives under
section 32.41(e) of the Penal Code. We conclude, therefore, that nothing precludes the
JYou indicate that section 112.001 of the Local Government Code applies to the Wise County
Auditor. In contrastto section 112.001, section 112.002 of the Local GovernmentCodeprovides that the
county auditor of a county with more than 190,OfKlresidentsmay adopt regulations“that the auditor
considers necessary for the speedy and proper collecting, checking, and accounting of the revenues and
other funds and fees that belong to the county or to a person for whom a county oflicer has made a
collection or for whose use or benefit the officer holds or has received funds.” We do not consider in this
opinion whether the county auditor of a county with more than 190,000 residents may regulate a justice of
the peace’s collection, checking, and accounting of restitution the justice receives under section 32.41(e)
of the Penal Code.
6Attorney General Opinion JM-1263 concluded that the money a county tax assessorxollector
receives on behalf of other taxing units is not subject to the county auditor’s authority under section
112.001. Attorney General Opinion IM-1263 (1990) at 4.
‘Chapter 117 of the Local Government Code pertains only to a trust fund held by a county or
district clerk. Neither a county clerk nor a district clerk serves the justice of the peace. See 36
DAVIDB. BROOKS,Co- ANDSPECIALDISTRKT LAW$8 22.29, .30, at 103-09 (Texas Practice 1989).
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justice of the peace in a county with fewer than 190,000 residents from depositing
restitution received under section 32.41(e) ofthe Penal Code into a separate account.*
We note that section 27.001 of the Government Code, which describes the bond a
justice of the peace must give prior to taking office, premises the bond upon, in part, the
justice-to-be promising promptly to pay “to the entitled party all money that comes into
the justice’s hands during the term of office.” Additionally, the county auditor is
authorized to oversee the books and records of the justice of the peace, including records
documenting the justice’s separate acwunt into which he or she deposits restitution
received under section 32.41(e) of the Penal Code. Local Gov’t Code $ 112.006; see
Attorney General Opinion H-l 185 (1978) at 1 (concluding that all money held by county
officer in official capacity, even if money does not belong to county, is subject to audit by
county auditor).
Finally, we caution that a justice of the peace who misapplies restitution received
under section 32.41(e) of the Penal Code may be subject to a criminal action. For
example, section 39.02(a)(2) of the Penal Code provides that a public servant commits a
criminal offense if, “with intent to obtain a benefit or with intent to harm or defraud
another,” the public servant intentionally or knowingly “violates a law relating to the
public servant’s office.“9 Furthermore, a justice of the peace may be removed from office
for official misconduct, i.e., intentional, unlawful behavior relating to official duties. Tex.
Const. art. V, $24; Local Gov’t Code §§ 87.011(3), .012(14), .013(2).
We next consider whether a justice of the peace must deposit the fines he or she
wllects directly into the county treasury, rather than initially depositing the fines into the
separate checking account and subsequently depositing the fines into the county treasury.
You do not indicate specifically the fines about which you are concerned, and you have
not asked about the disposition of fees the justice of the peace may collect. We assume
that you ask only about fines, that is, pecuniary penalties,lO see BLACK’S LAW
*You do not ask, and we therefore do not consider, whether, under chapter 116 of the Local
Ckwemment Code, the justice’s account must be in the county depository.
9An offense under section 39.02(a)(l) of the Penal Code is a class A misdemeanor. Penal Code
8 39.02(b).
IOAjoke of the peace has original jurisdiction in any criminal matter of misdemeanor level
punishable by tine only. Tex. Const. art. V, 5 19. Class C misdemeanors are punishable by fine only.
Cornpure Penal Code 5 12.23 (providing that individual wnvkzted of class C misdemeanor shall be
punishedby fine not to exceed $500) with id. 88 12.21 - .22 (providing punishment for class A and class B
miademcanOra).
We located two statutes under which an individual who has passed a hot check may be convicted.
Section 32.41 of the Penal Code provides that a person commits a class C misdemeanor, see Penal Code
5 32.41(f), ifthe person
issues or passes a check or similar sight order for the payment of money knowing
that the issuer does not have sufficient funds in or on deposit with the bank or
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DICTIONARY 569 (5th ed. 1979), as opposed to fees, that is, fixed charges paid as
recompense for services or reimbursement, tt see id. at 553. We believe article 103.004 of
the Code of Criminal Procedure, not article 112.001 or 113.022 of the Local Government
Code, resolves your question.
Article 45.50 of the Code of Criminal Procedure states that, in a case in which a
defendant is convicted of a criminal action before a justice of the peace, the justice of the
peace must order the defendant to pay to the state the amount of the prescribed fine and
costs. Additionally, section 112.052(a) of the Local Government Code provides that “a
6ne imposed or a judgment rendered by a justice of the peace shall be charged against that
justice.” The justice may discharge the indebtedness in one of three ways:12
(1) filing with the county clerk the county treasurer’s receipt for
the amount of the indebtedness;
(footnote continued)
other drawcc for the payment in full of the check or order as well as all other
checks or ordcrs outstanding at the time of issuance.
Id.g 32.4 l(a). In additioa,pursuantto section3 1.03(a) of the Penal Code, a person commits an otfense if
the person“unlawfully appropriata propertywith intent to deprivethe cwnerof property.” Under section
31.04(a)(l), “[a] person commits theft of setice if, with intent to avoid payment for service that” the
person “knows is provided only for compensation,” the person “intentionally or knowingly secures
performance of the services by deception. or false token.” Generally, under section 3 1.03 of the Penat
Code a person commits a class C misdemeanor if the person obtains propetty valued at less than twenty
dollars by passing a check when the person has instdlicient funds in the bank to coyer the cheek. Id.
5 31.04(e)(l)(B); see Act of May 29, 1995, 74th Leg., RX, ch. 318, 8 9, 1995 Tex. Scss. Laws 2734,
2737-38. Additionally under section 31.04, if a person obtains services valued at less than twenty dollars
by passing a check for which the person has insufticient fimds, the offense is a class C misdemeanor.
“Fees associated with dishonored checks include a fee for collecting and processing a sight order
that the county attorney, district attorney, or criminal district attorney may collect under Code of Criminal
procedure article 102.007, see Attorney General Opinion MW-188 (1980) at 3 (recognizing that justice of
peace, on behalf of district attorney, may collect fee for processing hot checks), and a processing fee that
the holder of a dishonored check may collect pursuant to V.T.C.S. article 9022. As we have stated above,
see supro note 1, article 102.0071 of the Code of Criminal Procedure authorizes a justice of the peace to
collect from the defendant, in appropriate cases, and pay to the holder of a dishonored check the fee
permitted by V.T.C.S. article 9022.
taThe Seventy-fourth Legislature added to section 112.052 of the Local Government Cc& a new
subsection, subsection (c), which excuses a justice of the peace from liability for a fine imposed or
judgment rendered by the justice in either of two situations. See Act of May 12, 1995,74th Leg., RS., ch.
217, g 5, 1995 Tex. Sess. Law Serv. 1959, 1959-50. First, a justice is excused from liability if a public or
private vendor collects the tine or judgment under Code of Crhninal Procedure article 103.003 1. Id.
Second a justice is excused from liability if the county auditor or county treasurer collects the fine or
judgment in accordance with local Government Code section 154.011. Id.
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(2) showing to the satisfaction of the commissioners court that
the justice has used due diligence to collect the amount without avail;
or
(3) showing to the satisfaction of the commissioners court that
the indebtedness has been satisfied by imprisonment or labor.
Local Gov’t Code $112.052(b).
This office previously has concluded that one of a justice of the peace’s ‘%nan-
datory duties” is “to exercise due diligence to collect fines assessed in his Court .”
Attorney General Opinion V-312 (1947) at 4. We also have concluded that a justice of
the peace is liable for an uncollected judgment. See Attorney General Opinions MW-37
(1979) at 1.0-6740 (1945) at 6; see also Code Crim. Proc. arts. 45.51, .52.
Article 103.004(a) of the Code of Criminal Procedure requires a justice of the
peace who collects fines under any provision “of this title” of the Code of Criminal
Procedure immediately to pay the money to the county treasurer for the county for which
the money was collected. Article 103.004 is part of title 2 of the Code of Criminal
Procedure. Article 45.50, which requires a justice of the peace to order a convicted
defendant to pay a fine, is found in title 1 of the Code of Criminal Procedure. We believe,
however, that article 103.004 applies to the collection of fines pursuant to article 45.50.
In 1985 the legislature nonsubstantively revised and renumbered article 1006 of the
Code of Criminal Procedure as article 103.004(a). See Act of May 17, 1985, 69th Leg.,
R.S., ch. 269, 5 1, 1985 Tex. Gen. Laws 1300, 1300 caption, 1305. Article 1006
pertained to “all fines collected under any provision ofthis Code.” (Emphasis added.)
Because article 1006 applied to fines collected pursuant to article 45.50, article 103.004(a)
also applies to fines a justice of the peace collects pursuant to article 45.50.
We therefore conclude, pursuant to article 103.004 of the Code of Criminal
Procedure, that the justice of the peace immediately must deposit the fines with the county
treasurer of the county for which the money was collected. See Attorney General Opinion
M-65 (1967) at 3 (concluding that Harris County may not accept and retain fine assessed
in felony case transferred from Harris County to Brazes County on change of venue).
Article 103.004 of the Code of Criminal Procedure, by its requirement that the justice of
the peace “immediately” deposit fines he or she has collected with the county treasurer,
does not permit a justice of the peace to first deposit any fines he or she collects into a
separate checking account and subsequently to deposit the iimds into the county treasury.
Chapter 103 of the Code of Criminal Procedure does not provide a penalty for
violations of article 103.004. C’ Code Crim. Proc. art. 103.012 (providing penalty for
violation of Code of Criminal Procedure article 103.010 or 103.011). Of course, a justice
of the peace who intentionally or knowingly violates the law in his or her official capacity
and who intends, by his or her conduct, to obtain a benefit or to harm another may be
prosecuted for official misconduct under section 39.02(a) of the Penal Code.
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Furthermore, a justice of the peace may be removed from office for official misconduct.
Local Gov’t Code @87.012(14), .013(a)(2); see also id. 5 21.002(2) (defining “official
misconduct” for purposes of removal of mayor or alderman in general-law municipality);
Code Crim. Proc. art. 3.04(l) (defining “official misconduct” for purposes of Code of
Criminal Procedure). In addition, article V, section l-a(6) of the Texas Constitution
authorizes the State Commission on Judicial Conduct to remove from office or discipline a
justice of the peace for, among other things, “incompetence in performing the duties of the
office, . , or will!%1or persistent conduct that is clearly inconsistent with the proper
performance of his duties or casts public discredit upon the judiciary or administration of
justice.”
SUMMARY
The enactment and amendment of section 32.41(e) of the Penal
Code overrule the conclusion this ofice reached in Attorney General
Opinion W-222 (1980). Pursuant to section 32.41(e), the issuer of
a dishonored check may pay restitution “‘through the court,”
provided the court in which the offense is filed approves. Of course,
the county auditor is authorized to oversee the books and records of
the justice of the peace, including records documenting the justice’s
separate account into which he or she deposits restitution received
under section 32.41(e) of the Penal Code. Additionally, a justice of
the peace who misapplies restitution received under section 32.41(e)
of the Penal Code may be subject to a criminal action, e.g., under
Penal Code section 39.02(a)(2), or removed from office for official
misconduct.
Sections 113.021 and 113.022 of the Local Government Code
do not apply to a justice of the peace who receives restitution on
behalf of a dishonored check holder pursuant to section 32.41(e) of
the Penal Code. Furthermore, section 112.001 does not authorize a
county auditor of a county with a population less than 190,000 to
regulate the “collecting, checking, and accounting” of restitution a
justice of the peace receives under section 32.41(e) of the Penal
Code. Accordingly, nothing prohibits a justice of the peace in a
county with fewer than 190,000 residents from depositing restitution
received under section 32.41(e) of the Penal Code into a separate
account.
Article 103.004 of the Code of Criminal Procedure, which
requires the justice of the peace “immediately” to deposit with the
county treasurer fines he or she collects, does not permit a justice of
the peace first to deposit fines into a separate checking account and
subsequently to deposit the tinds into the county treasury. A justice
of the peace who violates article 103.004 may be prosecuted for
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abuse of official capacity under section 39.02(a) of the Penal Code;
the justice of the peace also may be removed From office under
section 87.013(a)(2) of the Local Government Code or under article
V, section l-a(6) of the Texas Constitution.
Yours very truly, P
DAN MORALES
Attorney General of Texas
JORGE VEGA
First Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by Kymberly K. Oltrogge
Assistant Attorney General
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