Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
June 17,2005
The Honorable Christopher G. Taylor Opinion No. GA-0332
Tom Green County Attorney
Justice Center Re: Authority of a commissioners court to assign the
122 West Harris duties of collecting criminal fines, costs and fees to a
San Angelo, Texas 76903 county treasurer’s deputies (RQ-0301 -GA)
Dear Mr. Taylor:
You request an opinion on the authority of a commissioners court to assign the duties of
collecting criminal fines, costs and fees to a county treasurer’s deputies.’
According to your letter, the Commissioners Court of Tom Green County (the “County”)
created a collections department, consisting of three deputized and bonded county employees, and
placed it under the authority of the county treasurer. Request Letter, supra note 1, at 1. The three
deputies collect the “criminal fines, fees . . . and other debts”’ owed to the county, and also act as
cashiers. Id. at l-2. Money collected by the deputies is deposited into the county treasury pursuant
to article 103.004 of the Code of Criminal Procedure and section 113.022 of the Local Government
Code. Id. at 2.
You also inform us that a dispute has arisen regarding whether it is appropriate for the county
treasurer, through the collections department, to collect these criminal fees and fines. Id. The
dispute has arisen because article 103.003 of the Code of Criminal Procedure does not expressly list
the county treasurer as a county officer that “may collect money under this title.” Id. You indicate
that because the county clerk does not act as cashier and collect the fines or fees, and must rely on
the records provided by the collections department, the clerk is concerned about the clerk’s duty to
provide accurate reports to the commissioners court as required by the Code of Criminal Procedure.
Id. You indicate that the county clerk is also concerned about potential liability for erroneously
‘See Letter from Honorable Christopher G. Taylor, County Attorney, Tom Green County, to Honorable Greg
Abbott, Texas Attorney General (Dec. 14,2004) (on file with Opinion Committee, also avaiZabZe at http:/www.oag.state
.tx.us) [hereinafter Request Letter].
‘Chapter 102 of the Code of Crimina 1 Procedure establishes various fees and costs payable by criminal
defendants. See, e.g., TEX. CODECRIM.PROC.ANN. arts. 102.002 (witness fees), 102.004 (jury fee), 102.011 (fees for
services of peace officers), 102.014(h) (court costs for school crossing guard programs), 102.017 (courthouse security
fund), 102.0173 (justice court technology fund) (Vernon Supp. 2004-05).
The Honorable Christopher G. Taylor - Page 2 (GA-0332) *
issuing a capias pro fine’ because of information provided by the collections department. Id.
Pursuant to these concerns, you inform us the county clerk now “refuses to give consent for these
collections or to deputize these employees.” Id. You thus present two queries:
1. Does Article 103.003 1 give the commissioners court the authority
to create a collections department under the authority of the
county treasurer for the purpose of collecting criminal fines and
fees? Can the commissioners court create the collections
department under the jurisdiction of the county treasurer without
the consent of the county clerk?
2. Who defines the clerk of the court? Can the judge of the County
Court at Law designate a deputy of the county treasurer as the
clerk of the court for purposes of collecting criminal fines and
fees?
Id.
Commissioners courts “can exercise only such powers as the Constitution itself or the
statutes have ‘specifically conferred upon them.“’ Canales v. Laughlin, 214 S.W.2d 451,453 (Tex.
1948) (quotingMills County v. Lampasas County, 40 S.W. 403,404 (Tex. 1897)). When it exercises
powers that are expressly conferred upon it, a commissioners court has broad discretion. See id.
Implied powers of the commissioners court must necessarily flow from some express grant of
authority. See id.; see also Tex. Att’y Gen. Op. No. GA-0154 (2004) at 3-4. Moreover, where the
legislature expressly grants a commissioners court a power and prescribes how that power is to be
used, the prescribed method excludes all other methods and must be followed. See Canales, 214
S.W.2d at 457.
You first question whether article 103.003 1 provides the requisite authority to the Tom Green
County Commissioners Court4 We therefore limit our discussion to the authority provided by article
103.0031.
“‘A ‘capias’ is a writ issued by the court or clerk, and directed ‘To any peace officer of the State of Texas,’
commanding him to arrest a person accused of an offense and bring him before that court immediately, or on a day or
at a term stated in the writ.” TEX. CODECm. PROC.ANN. art. 23.01 (Vernon 1989). A capiasprofine is defined as
a ‘writ for the arrest of a person who had not paid an imposed fine.” BLACK’SLAW DICTIONARY 200 (7th ed. 1999).
4We note that article 103.003(b) authorizes a “community supervision and corrections department serving a
county with a population of 2.8 million or more” to collect criminal fines and fees. TEX.CODECm. PROC.ANN. art.
103.003(b) (Vernon Supp. 2004-05). We also note that article 103.0031(c) authorizes the “governing body of a
municipality with a population of more than 1.9 million” to add the collection fee to collection programs run by
employees of the municipality. Id. art. 103.003 l(c). Because the population of Tom Green County is less than the
population figures contained in both of these provisions, they do not apply. See BUREAUOFTHECENSUS,U.S. DEP’T
OFCOMMERCE, 2000 CENSUSOFPOPULATION:Profile of General Demographic Characteristics: Texas (population of
Tom Green County is 104,010), available at www.factfrmder.census.gov.
The Honorable Christopher G. Taylor - Page 3 (GA-0332)
Article 103.003 1 provides, in pertinent part, that the “commissioners court of a county . . .
may enter into a contract with a private attorney or a public or private vendor for the provision of
collection services for one or more of [specified] items.” TEX. CODE CRIM. PROC. ANN. art.
103.0031(a) (Vernon Supp. 2004-05). The remainder of article 103.0031 provides for particular
aspects of any collections contract into which a commissioners court enters. See id. art.
103.003 1(a)( 1) (listing items for which collections contract is authorized), .003 1(b) (authorizing 30
percent collection fee), .003 l(f) (providing that item more than 60 days past due is subject to
collection fee), .0031(g) (limiting county’s use of 30 percent collection fee).
We believe the answer to your first question is governed by the plain language of the statute.
See City of San Antonio v. Bullock, 34 S.W.3d 650,655 (Tex. App.-San Antonio 2000, pet. denied)
(“A fundamental rule of statutory construction is that a court should first ascertain the Legislature’s
intent in enacting the statute as expressed in its plain language.“). A literal reading of the statute will
direct the interpretation unless the literal text is unclear or would lead to an absurd result. See State
v. Webb, 12 S.W.3d 808, 811 (Tex. Crim. App. 2000). Article 103.0031 clearly authorizes a
commissioners court to enter into a collections contract with a “private attorney” or a “public or
private vendor.” TEX.CODEGRIM.PROC.ANN.art. 103.0031 (Vernon Supp. 2004-05). A county
treasurer clearly is not a private attorney or based on these facts a private vendor. Moreover, article
103.003 1 authorizes a commissioners court to enter into a contract for collection services. Creation
of a collections department is not entry into a contract. For these reasons, we conclude that article
103.003 1 does not provide a commissioners court with express authority to create a collections
department under the auspices of the county treasurer. Cf: Tex. Att’y Gen. Op. No. JM-1074 (1989)
at 4 (concluding that county commissioners court does not have authority to create a payroll
department pursuant to section 115.021 of the Local Government Code). Additionally, without
express authorization, the authority to create a collections department under the auspices of the
county treasurer cannot be implied. See Tex. Att’y Gen. Op. No. DM-183 (1992) at 2 (citing
Pritchard &Abbott v. McKenna, 350 S.W.2d 333 (Tex. 1961)).
There is another limitation on the authority of a commissioners court that is relevant to this
question which supports our conclusion. A commissioners court “cannot deprive [a county] officer
of the authority, rights and duties which inhere in his office, nor require him to delegate the same to
another person . . . ; nor can it displace an officer by authorizing another person to perform duties
devolved upon him by statute.” Tex. Att’y Gen. Op. No. JM-1074 (1989) at 4 (citing AZdrich v.
Dallas County, 167 S.W.2d 560, 565 (Tex. Civ. App.-Dallas 1942, writ dism’d)); CJ Comm ‘rs
Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex. 1997) (stating that commissioners court
may delegate a function that neither the constitution nor the legislature has exclusively delegated to
one officer). You inform us that the three employees of the collections department act as cashiers.
Request Letter, supra note 1, at 1. We understand you to mean that they physically receive the fine
and fee money paid to the County. We believe this practice deprives the cotmty clerk, as clerk of
the court, of the ability to discharge the clerk’s duties. See TEX. CONST.art. V, 0 20 (county clerk
shall be clerk of county and commissioners court); TEX. GOV’TCODEANN. 3 25.0010(b) (Vernon
2004) (county clerk shall serve as clerk of statutory county court). Title II of the Code of Criminal
Procedure and the Government Code mandate that the clerk collect certain criminal fines and fees.
See TEX. CODECRIM.PROC.ANN. art. 102.017(d) (Vernon Supp. 2004-05) (“The clerks of the
The Honorable Christopher G. Taylor - Page 4 (GA-0332)
respective courts shaZZ collect the [security fee] and pay them to the county or municipal treasurer
. . . .“); TEX.GOV’T CODEANN. $9 102.061 (Vernon Supp. 2004-05) (“The clerk of a statutory
county court shall collect fees and costs on conviction of a defendant . . . .“); 102.08 1 (“The clerk
of a county court shall collect fees and costs on conviction of a defendant . . . .“).
You suggest that a provision of the Local Government Code might nonetheless allow for the
collections department to operate as the County has established it. Request Letter, supra note 1,
at 3. Local Government Code section 113.903(a) provides that “[wlith the prior consent of the
commissioners court and the officer to whom funds are owed, a district, county, or precinct officer
authorized by law to receive or collect money. . . that belongs to the county may receive or collect,
on behalf of another district, county, or precinct officer, money. . . owed to the county.” TEX.LX.
GOV’T CODEANN. 5 113.903(a) (Vernon 1999). While a county treasurer is the county officer
authorized to “receive all money belonging to the county,” id. 5 113.003, the court clerk is one of
the officers statutorily authorized to collect criminal fines and fees imposed by county courts, and
therefore is one of the officers to whom the money is owed.’ See TEX.CODEGRIM.PROC.ANN. art.
102.017(d) (Vernon Supp. 2004-05); TEX.GOV’TCODEANN. $9 102.061, .081 (Vernon Supp. 2004-
05). However, pursuant to the express language of section 113.903(a), “prior consent of the
commissioners court and the officer to whom funds are owed” is required before one officer may
collect money on behalf of another. TEX. Lot. GOV’T CODE ANN. $113.903(a) (Vernon 1999). We
believe that this section would allow the deputies in the collections department under the auspices
of the county treasurer to collect fines and fees owed to the clerk only if the commissioners court and
clerk consented. We understand from your letter that the clerk has not consented. Request Letter,
supra note 1, at 2. Without the clerk’s consent, section 113.903(a) does not operate to allow for the
creation of the collections department here.
Similarly, we do not believe that section 113.902 of the Local Government Code authorizes
the commissioners court to establish a collections department under the auspices of the county
treasurer. Section 113.902(a) provides that the “county treasurer shall direct prosecution for the
recovery of any debt owed to the county . . . and shall supervise the collection of the debt.” TEX.
Lot. GOV’T CODEANN. $ 113.902(a) (V emon Supp. 2004-05). By its express terms, section
113.902(a) authorizes the treasurer to “direct prosecution for the recovery of any debt” and
“supervise the collection of the debt.” Id. (emphasis added). This office has previously determined
that generally a “fine imposed in a criminal case . . . is not considered . . . ‘debt’ because a debt is
. defined as an obligation arising from a contractual agreement.” Tex. Att’y Gen. Op. No. JC-
bb24 (1999) at 3 (citing Thompson v. State, 557 S.W.2d 521,525 (Tex. Crim. App. 1977)); cJ: TEX.
CODE GRIM.PROC.ANN. art. 103.003 1(a)( 1) (differentiating debt from “accounts receivable such
as unpaid fines, fees, court costs”); .003 1(f)( 1) (differentiating debt from “fine, fee, forfeited bond,
or court cost”). Instead, the fine is a penalty owed to the political subdivision for violation of a
criminal law. See Exparte Chambers, 898 S.W.2d 257,267 (Tex. 1995). Because criminal fines
‘103.003 also authorizes district and county attorneys, sheriffs, constables, and justices of the peace to collect
the fines and fees established in chapter 102, Code of Criminal Procedure. See TEX. CODEGRIM.PROC.ANN. art.
103.003 (Vernon Supp. 2004-05). A county treasurer is not included as one authorized to collect the fines and fees. See
id.
The Honorable Christopher G. Taylor - Page 5 (GA-0332)
and fees do not constitute debt, we do not believe that the authority given a treasurer in section
113.902 includes the authority to act as a cashier for the collection of criminal fees and fines.
To the extent that your first question asks whether article 103.003(a)6 authorizes a
commissioners court to create a collections department under the auspices of the county treasurer,
our conclusion does not change. Article 103.003(a) lists the offricers that are authorized to collect
fees provided for in title II of the Code of Criminal Procedure. See TEX. CODE GRIM.PROC.ANN.
art. 103.003(a) (Vernon Supp. 2004-05). Those officers are: district and county attorneys, clerks
of district and county courts, sheriffs, constables, and justices of the peace. See id. The county
treasurer is not included as an officer who may collect, i.e., act as cashier for the collection of, title
II fines and fees.
Finally, you inquire: “Who defines the clerk of the court? Can the judge of the County Court
at Law designate a deputy of the county treasurer as the clerk of the court for purposes of collecting
criminal fines and fees?’ Request Letter, supra note 1, at 2. In connection with your query, you
inform us that the Tom Green County Courts at Law are statutory county courts. Id. at 3. The Texas
Constitution defines the clerk of the county court: “There shall be elected for each county . . . a
County Clerk, who shall hold his office for four years, who shall be the clerk of the County and
Commissioners Courts . . . .” TEX.CONST.art. V, 0 20. Texas statutes also define the clerk of the
county court. Section 25.0010(b), Texas Government Code, expressly states that “the county clerk
shall serve as clerk of each statutory county court.” TEX. GOV’T CODE ANN. 0 25.0010(b) (Vernon
2004). The position of court clerk is filled pursuant to the constitution and statute and not by judicial
appointment. Accordingly, the judge of the county court is not authorized to appoint the clerk of the
county court or statutory court and, therefore, may not appoint a deputy of the county treasurer as
the clerk of the court for purposes of collecting criminal fines and fees.7
6Article 103.003(a) states: “District and county attorneys, clerks of district and county courts, sheriffs,
constables, andjustices of the peace may collect money payable under this title.” TEX.CODECFUM.PROC.ANN. art.
103.003(a) (Vernon Supp. 2004-05).
71naddition, the clerk, as a county officer, has sole discretion in appointing deputy clerks. See TEX.LOC.&W’T
CODEANN.0 151.001(a) (Vernon 1999); Hooten v. Enriquez, 863 S.W.2d 522,529 (Tex. App.-El Paso 1993, no writ)
(“The commissioners court may either grant or deny the authority to appoint such deputies . . . but it has no power over
naming the individuals to be appointed.“).
The Honorable Christopher G. Taylor - Page 6 (GA-0332)
SUMMARY
Article 103.003 1 of the Texas Code of Criminal Procedure
does not authorize a county commissioners court to establish a
collections department under the authority of a county treasurer
without the consent of the county clerk.
The county clerk serves as the clerk of a county court or
statutory county court pursuant to the Texas Constitution and Texas
statutes. A judge of a county court is not authorized to appoint the
clerk of the county court or statutory court and, therefore, may not
appoint a deputy of the county treasurer as the clerk of the court for
purposes of collecting criminal fines and fees.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee