Untitled Texas Attorney General Opinion ( 2002 )

OFFICE OF THE ATTORNEY GENERP,L . STATE OF TEXAS
JOHN CORNYN
June 24,2002
The Honorable Robert B. Scheske Opinion No. JC-05 16
Gonzales County Attorney
P. 0. Box 3 Re: Applicability of article 103.003 1 of the Code
Gonzales, Texas 78629-0003 of Criminal Procedure when a defendant has
failed to appear in a Class C misdemeanor case
(RQ-0485-JC)
Dear Mr. Scheske:
You have asked this office whether a fine suggested by a justice of the peace in connection
with the issuance of an arrest warrant for the failure of a defendant to appear in a Class C
misdemeanor case is a “debt[] [or] account[] receivable . . . ordered to be paid by a court,” TEX.
CODE GRIM. PROC. ANN. art. 103.0031(a) (Vernon Supp. 2002), that may be collected by a private
vendor pursuant to article 103.003 1 of the Code of Criminal Procedure. We conclude that, absent
an order by the magistrate, a “suggested” fine is not within the terms of article 103.003 1.
Chapter 103 of the Code of Criminal Procedure is generally concerned with the powers,
means, and procedures for collecting various costs. It forms part of title 2 of the code, a
nonsubstantive recodification enacted by the Sixty-ninth Legislature. See Act of May 17, 1985,
69th Leg., R.S., ch. 269, 1985 Tex. Gen. Laws 1300, 1305-06. Article 103.003 l(a) provides:
The commissioners court of a county or the governing body
of a municipality may enter into a contract with a private attorney or
a public or private vendor for the provision of collection services for
debts and accounts receivable such as fines, fees, restitution, and
other debts or costs, other than forfeited bonds, ordered to bepaid by
a court serving the county or a court serving the municipality, as
appropriate.
Id. (emphasis added). Such contracts may authorize the addition of collection fees of thirty percent
on debts or accounts receivable that are more than sixty days past due. See art. 103.003 1(b) (Vernon
supp. 2002).
As you explain the situation which gives rise to your request, a traffic citation is issued and
the defendant by signing the ticket makes a promise to appear before the justice of the peace. The
defendant fails to keep that promise, and the justice of the peace issues an arrest warrant based on
The Honorable Robert B. Scheske - Page 2 (JC-0516)
the failure to appear. “Often in connection with this warrant, the court suggests a fine that would
be acceptable to the Justice of the Peace upon the arrest of the violator. The acceptable fine can be
paid to the magistrate when arrested.“’ As your second letter to us makes clear, you are not
concerned with a situation in which a fine has been ordered after a judicial hearing, but rather “class
C misdemeanor cases in which there has been no appearance in the case by the defendant and the
amount of the fine is suggested as an acceptable fine by the judge or justice.“* We take this to mean
that no order has been issued and that only an informal suggestion has been made.
The debts that may be collected under article 103.003 1 are, according to the plain language
of the statute, those which have been “ordered to be paid by a court.” TEX. CODE CRIM. PROC. ANN.
art. 103.003 1(a). It has been suggested in a brief submitted to this office that, in line with the
doctrine of the last antecedent, see, e.g., In re M.A.M., 35 S.W.3d 788,790 (Tex. App.-Beaumont
200 1, no pet.), the phrase “ordered to be paid by a court” might be held only to modify “fines, fees,
restitution, and other debts or costs” and not “the more remote words ‘debts and accounts
receivable’ .“3
One principal difficulty with this argument is that the phrase “such as fines, fees, restitutions,
and other debts or costs” is a single illustrative series referring precisely to “debts and accounts
receivable.” Further, subsection (d) of article 103.003 1 begins with the words, “If a private attorney
or private vendor collects from a person owing costs orderedpaid by the court an amount that is less
than the total costs . . . .” TEX. CODE CRIM. PROC. ANN. art. 103.003 l(d) (Vernon Supp. 2002)
(emphasis added). Reading the language of subsections (a) and (d) together, then, it is clear that the
sums a lawyer or collection agency may contract with the commissioners to collect are those
“ordered paid by the court.” See Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998) (statutory
provisions to be considered in context of entire act).
In the situation you describe, however, there has been no such order. When, as here, no order
has been issued, article 103.0031 is not, by its terms, applicable. See, e.g., Marx v. State, 987
S.W.2d 577, 582 (Tex. Crim. App. 1999) (en bane) (in construing statute, court “necessarily
focus[es] . . . attention on the literal text of the statute in question.“).
‘Letter from Honorable Robert B. Scheske, Gonzales County Attorney, to Susan Dent-non Gusky, Chair,
Opinion Committee, Office of Attorney General, at 1 (Dec. 27,200l) (on file with Opinion Committee).
‘Letter from Honorable Robert B. Scheske, Gonzales County Attorney, to Susan Dernnon Gusky, Chair,
Opinion Committee, Office of Attorney General, at 1 (Jan. 22,2002) (on file with Opinion Committee).
3Brief from F. Duane Force, Linebarger, Goggan, Blair, Pena & Sampson, L.L.P., to Honorable John Comyn,
Texas Attorney General, at 6 (Jan. 17,200[2]) (on file with Opinion Committee).
The Honorable Robert B. Scheske - Page 3 (JC-0516)
SUMMARY
Article 103.003 1 of the Code of Criminal Procedure is
inapplicable in a case in which a justice of the peace has informally
suggested an acceptable fine.
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN DENMON GUSKY
Chair, Opinion Committee
James E. Tourtelott
Assistant Attorney General, Opinion Comrnittee