Untitled Texas Attorney General Opinion

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
November 13, 2017
Ms. Shelly Atteberry Opinion No. KP-0173
Cooke County Auditor
101 South Dixon Street Re: Whether an attorney serving a county
Gainesville, Texas 76240 pursuant to a collection contract under article
103.0031 of the Code of Criminal Procedure
may collect delinquent restitution owed to a
crime victim (RQ-0166-KP)
Dear Ms. Atteberry:
You tell us that Cooke County (the "County") contracts with a private attorney for
collection services under the authority of article 103.0031 of the Code of Criminal Procedure. 1
You ask, when the County "attempts to collect court ordered restitution on behalf of crime victims"
and the restitution is not paid, whether the County may turn the case over to the private collection
attorney pursuant to article 103 .0031. Request Letter at 2. Article 103 .0031 authorizes a
commissioners court to "enter into a contract with a private attorney or a public or private vendor
for the provision of collection services" for a number of criminal fines and fees. TEX. CODE CRIM.
PROC. art. 103.003 l(a). Relevant here, this authority includes collection of "restitution ordered
paid by ... a court serving the county." Id art. 103.003l(a)(l)(A). However, you question
whether the statute permits the collection of "delinquent restitution that while collected by the
County is not owed directly to the County." Request Letter at 1. You explain that your question.
stems from an attorney general opinion concerning the nature of criminal restitution. Id at 2. In
Attorney General Opinion KP-0019, this office concluded that restitution funds ordered in a
criminal judgment by£:!. statutory county court do not "belong" to a county, and thus they are not
statutorily required to be deposited with the county treasurer or in the county treasury. See Tex.
Att'y Gen. Op. No. KP-0019 (2015) at 2 (referring to section 113.021(a) of the Local Government
Code, which mandates that 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"). YOU ask, in
essence, whether the County's non-ownership of the crime victim restitution funds impacts the
County's ability to delegate its collection to the attorney employed under article 103.0031. See
Request Letter at 1-2.
A court's primary objective when interpreting a statute "is to ascertain and effectuate the
Legislature's intent," which a court derives "from the plain meaning of the text construed in light
of the statute as a whole." Janveyv. Golf Channel, Inc., 487 S.W.3d 560, 572 (Tex. 2016). Article
'See Letter from Ms. Shelly Atteberry, Cooke Cty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. at I
(June 23, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
Ms. Shelly Atteberry - Page 2 (KP-0173)
103.0031(a)(l)(A) expressly authorizes collection contracts "for ... restitution ordered paid by
... a court serving the county." TEX. CooECRIM. PROC. art. 103.003 l(a)(l)(A). A court ordering
a convicted defendant to make restitution does so pursuant to the authority granted in article
42.037(a) of the Code of Criminal Procedure, which provides that the court may order the
defendant to make restitution to .the "victim of the offense" or, in some instances, to a crime
victims' compensation fund. Id. art. 42.037(a). If the defendant does not make restitution
"directly" to the victim or the compensation fund, he or she must make it "directly to the person
or agency that will accept and forward restitution payments" as appropriate. Id. art. 42.037(g)(4).
Thus, in authorizing a court to order criminal restitution, the Legislature recognized that an entity
collecting restitution on the victim's or the fund's behalf, such as a county, does not itself own the
funds. See Tex. Att'y Gen. Op. No. KP-0019 (2015) at 2 (concluding that "the specific language
of article 42.03 7 ... 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"). We
presume the Legislature was aware of this statutory scheme when it included restitution as an
authorized item of collection under article 103.003 l(a)(l). See Wichita Cty. v. Hart, 917 S.W.2d
779, 782 (Tex. 1996) (noting the rule of statutory construction that the Legislature is presumed to
act "with complete knowledge of the existing law and with reference to it"). We also presume, as
courts do, that the Legislature "chooses a statute's language with care, including each word chosen
for a purpose, while purposefully omitting words not chosen." Cadena Comercial USA Corp. v.
Tex. Alcoholic Beverage Comm 'n, 518 S.W.3d 318, 325-26 (Tex. 2017) (quotation marks
omitted). Other than specifying the entity that must have ordered payment of restitution, article
103.0031 contains no other prerequisites regarding restitution. Thus, if "a court serving the
county" ordered the restitution, a private attorney under contract with the County under article
103 .0031 may collect delinquent restitution owed to a crime victim. TEX. CODE CRIM. PROC. art.
103.0031.
Ms. Shelly Atteberry - Page 3 (KP-0173)
SUMMARY
If a court serving the County orders a defendant to make
restitution to a crime victim and payment is delinquent, a
commissioners court may refer the matter to a private collections
attorney under contract with the County. pursuant to article
103.0031(a)(l)(A) of the Code of Criminal Procedure.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
BECKY P. CASARES
Assistant Attorney General, Opinion Committee