Untitled Texas Attorney General Opinion

Honorable Barry L. Macha Opinion No. JM-557
Criminal District Attorney
Wichita County Courthouse Re: Whether a private check collec-
Wichita Falls, Texas 763CI tion agency may charge the drawer for
the holder’s consequential damages in
addition to the face value of the
check and the maximum processing fee
Dear Mr. Macha:
You have requested our opinion regarding certain fees which may
be charged by a private collection agent for the holder of a dis-
honored check. Article 9022, V.T.C.S., provides:
(a) The holier of a check or its assignee,
agent, representative, or any other person retained
by the holder to seek collection of the face value
of the dishonor~zdcheck on the return of the check
to the holder following its dishonor by a payor s
charge the dra3tr.ror endorser a reasonable fee,
which shall not>-xceed $15.
(b) Nothing herein shall be construed as
affecting any x,i,ghtor remedy to which the holder
of the check may be entitled under any rule,
regulation, written contract, judicial decision, or
other statute. (Emphasis added).
You ask whether this sta’:uteprovides a private collection agent with
the authority to charge the drawer for a holder of a dishonored check
consequential damages (separate bank charge for dishonor fee) in
addition to the face yrnlue of the check and the $15.00 maximum
processing fee. We con&ude that it does not.
When it is necessary to ascertain the true meaning of a statute,
it is permissible to consider the state of the law at the time of its
enactment, the conditions designed to be dealt with, the good intended
to be accomplished, and. the mischief sought to be prevented or
remedied. See Lawson v.--Baker, 220 S.W. 260 (Tex. Civ. App. - Austin
1920, writxf’d); see also 53 Tex. hr. 2d Statutes 9162, at 236
---
(1964). Article 9022 was enacted by the Sixty-eighth Legislature in
1983 to permit retailex,s to charge a processing fee, not to exceed
,- $15.00, for returned ck,ecks. Acts 1983, 68th Leg., ch. 617, §l, at
3873, eff. Aug. 29. 1983; see also Bill Analysis to H.B. No. 921,
p, 2477
Honorable Barry L. Macha - Page 2 (JM-557)
prepared for House Committx on Business and Couanerce,filed in Bill
File to R.B. No. 921, Legislative Reference Library. Prior to the
enactment of article 9022, a retailer, in order to recoup or off-set
the cost of processing a dishonored check, had to prove that the
customer, or drawer of a check, contracted to pay a stipulated flat
fee if the check was dishonored. Id. Article 9022 eliminated this
difficult procedure.
It is clear from the expressed language of section (a) that a
collection "agent" of a holder of a dishonored check may "seek
collection of the face va:Lue" of the dishonored check and charge a
processing fee of $15.00. V.T.C.S. art. 9022(a). See also Trimmier
V. Carlton, 296 S.W. 1070 (Tex. 1927) (unambiguous statutes are
construed to give effect t> its terms). Accordingly, section (a) of
article 9022 specifically authorizes a collection agent of a holder of
a dishonored check to col:Lect the face amount of the check plus a
processing fee not to exceed $15.00. -See Attorney General Opinion
JM-472 (1986).
Section (a) of article;9022 does not authorize any fee in excess
of the $15.00 regardless XE the total cost of collecting the face
value of a dishonored che,ck. As indicated above, the legislative
purpose for allowing the fee was to insure that the agent of the
holder may collect a "reasonable" fee from the drawer or endorser
?
without the necessity of proving that a contract for a flat fee
existed. Bill Analysis to H1.B.No. 921, prepared for House Committee
on Business and Commerce, filed in Bill File to H.B. No. 921, Legisla-
tive Reference Library. Accordingly, the fee was only intended to
off-set the administrative cDst and expense of processing a dishonored
check and not as a compensation for damages. The statute does not
preclude recovery for consequential damages for breach of the payor's
contractual obligations. _--
the V.T.C.S. art. 9022(b); see also Bus. &
Comm. Code 53.802(a)(2) (an action may be maintained on either the
instrument or the obligation).
SUMMARY
Section (a) of article 9022, V.T.C.S., authorizes
a collection agent of a holder of a dishonored check
to collect the f'ace amount of the check plus a
processing fee not to exceed $15.00. However, the
provision does not authorize a collection agent to
charge an amount to compensate for consequential
damages resulting f,comthe collection of a dishonored
check.
, Very/tth
?
JIM MATTOX
Attorney General of Texas
p. 2478
Honorable Barry L. Macha - Page 3 (JM-557)
P
JACK HIGHTOWER
First Assistant Attorney Gmeral
UARY KELLER
Executive Assistant Attormy General
RICK GILPIN
Chairman, Opinion Committee!
Prepared by Tony Guillory
Assistant Attorney General
p. 2479