Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEYGENERAL OF TEXAS
GREG ABBOTT
March 2 1,2005
The Honorable Jeri Yenne Opinion No. GA-03 13
Brazoria County Criminal District Attorney
111 East Locust, Suite 408A Re: Whether a county commissioners court may
Angleton, Texas 775 15 compel a justice of the peace to use a vendor
under contract with the county to collect court
tines, fees, and costs (RQ-0276-GA)
Dear Ms. Yemre:
You ask whether a county commissioners court may compel a justice of the peace to use a
vendor under contract with the county to collect court fines, fees, and costs.’ You indicate that the
Brazoria County Commissioners Court has contracted with a private attorney to collect unpaid fines,
fees, and court costs under articles 103.003 and 103.003 1 ofthe Code of Criminal Procedure, which
pertain to the collection of tines, fees, court costs, and restitution for which a public officer has
issued a written bill. See TEX. CODEGRIM.PROC.ANN. arts. 103.003, .0031 (Vernon Supp. 2004-
05); see also id. art. 103 .OO1 (describing payable costs); Request Letter, supra note 1, at 1.
I. Code of Criminal Procedure articles 103.003 and 103.0031
Article 103.003(a) authorizes “[dlistrict and county attorneys, clerks of district and county
courts, sheriffs, constables, and justices of the peace” to collect monies for which an officer has
produced a written bill. TEX. CODEGRIM.PROC.ANN. art. 103.003 (Vernon Supp. 2004-05); see
also id. art. 103.001 (defining payable costs). Subsection (c) indicates that the commissioners court
has authority to contract for the collection of the fines, fees, court costs, and restitution: “This article
does not limit the authority of a commissioners court to contract with a private vendor or private
attorney” to provide “collection services under Article 103.0031.” Id. art. 103.003(c).
Article 103.0031(a) expressly authorizes a county commissioners court to “enter into a
contract with a private attorney or a public or private vendor for the provision of collection services
for. : (1) debts and accounts receivable such as unpaid fines, fees, court costs, forfeited bonds,
and restitution ordered paid by: (A) a court serving the county .” Id. art. 103.0031(a)(l)(A).
Under subsection (b), a commissioners court that enters into a collection contract “may authorize the
‘See Letter from Honorable Jeri Yenne, Brazoria County Criminal District Attorney, to Honorable Greg Abbott,
Texas Attorney General, at 1 (Sept. 20,2004) (on file with the Opinion Committee, also availableaf http://www.oag
.state.tx.us) [hereinafter Request Letter].
The Honorable Jeri Yenne - Page 2 (GA-0313)
addition of a collection fee in the amount of 30 percent on each item described in Subsection (a) that
is more than 60 days past due and has been referred to the attorney or vendor for collection,”
although a defendant whom the court of original jurisdiction has determined is indigent is not liable
forthecollectionfee. Id. art. 103.0031(b),(d); see&o id. art. 103.0031(f) (instructingwhenanitem
subject to collection services and to the additional collection fee is 60 days past due). “The
collection fee does not apply to a case that has been dismissed by a court of competent jurisdiction
or to any amount that has been satisfied through time-served credit or community service.” Id. art.
103.003 l(b). The county may use the 30% collection fee only to compensate the attorney or vendor
(the “collection agent”) who earns the fee. See id. art. 103.0031(g).
II. Facts
According to your letter, Brazoria County has contracted with aprivate attorney under article
103.003 l(a) to collect delinquent court costs and fees. See Request Letter, supra note 1, at 1. The
attorney collects a 30% collection fee, as article 103.0031(b) authorizes the attorney to do. See id.;
see also TEX. CODEGRIM.PROC.ANN. art. 103.0031(b) (Vernon Supp. 2004-05).
You further indicate that Brazoria County has contracted with the Texas Department of
Public Safety (the “Department”) under Transportation Code section 706.002. See Request Letter,
supra note 1, at 1; see TEX. TRANSP.CODE ANN. 5 706.002 (Vernon Supp. 2004-05). Section
706.002 authorizes a political subdivision, such as a county, to contract with the Department
to provide information necessary for the [Dlepartment to deny
renewal of the driver’s license of a person who fails to appear for a
complaint or citation or fails to pay or satisfy a judgment ordering
payment of a fine and cost in the manner ordered by the court in a
matter involving any offense that a court has jurisdiction of under
Chapter 4, Code of Criminal Procedure.
TEX. TRANSP.CODEANN. 5 706.002(a) (Vernon Supp. 2004-05); see also id. 5 706.001(2)-(3), (7)
(defining the terms “department,” “driver’s license,” and “political subdivision”). The term
“complaint” for purposes of chapter 706 is defined to mean “notice of an offense,” id. 5 706.001(l),
“for which maximum possible punishment is by tine only or” for a parking offense, TEX. CODE
GRIM.PROC.ANN. art. 27.14(d) (Vernon Supp. 2004-05). See also id. art. 45.019 (setting out
complaint requisites). A citation is defined for purposes of chapter 706 to include only citations for
traffic-law violations. See TEX. TFUNSP.CODEANN. 5 706.003(a) (Vernon Supp. 2004-05). Upon
receiving the necessary information from a political subdivision that has contracted with the
Department under section 706.002, the Department may deny renewal of a driver’s license to the
person who failed to appear or to pay or satisfy a judgment. See id. 5 706.004(a). A person who
fails to appear for a complaint or citation must pay a $30 administrative fee “for each complaint or
citation reported to the department under” a chapter 706 contract, payable when (1) the court enters
judgment; (2) the court dismisses the underlying offense; or (3) “bond or other security is posted to
reinstate the charge for which the warrant was issued.” Id. 5 706.006(a). Similarly, a “person who
fails to pay or satisfy a judgment ordering the payment of a fine and cost shall be required to pay
The Honorable Jeri Yemre - Page 3 (GA-0313)
an administrative fee of $30.” Id. 8 706.006(b). The $30 fee, which is remitted to the offrcer who
collects the fine, is split between the local government’s general fund, the Texas Comptroller, and
the Department. See id. 5 706.007(a), (d)-(e).
The Department has contracted with aprivatevendor, OmniBase Services ofTexas, to collect
and store information regarding violators who fail to satisfy a fine and court costs. See Request
Letter, supra note 1, at 1. The Department can obtain the information from OmniBase “to deny the
renewal of a violator’s driver’s license.” Id.
III. Analvsis
You ask first whether a person who has failed to pay court-ordered tines, fees, or costs must
pay both the 30% fee under Code of Criminal Procedure article 103.0031(g) and the $30 fee under
Transportation Code section 706.002. Request Letter, supra note 1, at 2. You characterize both
contracts as collection contracts. See id. In other words, you ask, is a county “allowed to have more
than one collection contract” and if so, “is each collection entity allowed to charge a collection fee,
30% by one and $30.00 by the other.” Id. We assume you limit this question to judgments in
matters covered by section 706.002 of the Transportation Code.
A contract under section 706.002 is not a contract to collect delinquent tines, fees, or court
costs. Rather, it is a contract to provide informationregardingpersons who fail to pay court-ordered
judgments so that the Department can deny renewals of their drivers’ licenses. See TEX. TRANSP.
CODE ANN. 5 706.002(a) (Vernon Supp. 2004-05). Because the county’s contract with the
Department is not a collection contract and was not entered under Code of Criminal Procedure article
103.0031, the county has not entered two collection contracts. A county is expressly authorized to
enter a contract both (1) for the collection oftines, fees, and costs under article 103.003 1 ofthe Code
of Criminal Procedure, and (2) to provide information to the Department under section 706.002 of
the Transportation Code.
Additionally, both statutes authorize the collection of a fee, and the fees are cumulative.
Article 103.003 l(b) expressly permits a county to add a 30% fee to delinquent fines, fees, and costs
collected by the collection agent under contract with the county. See TEX. CODEGRIM.PROC.ANN.
art. 103.0031(b) (Vernon Supp. 2004-05). Section 706.006 expressly permits imposing a $30
administrative fee on a person who fails to appear or fails to pay a fine and cost in certain criminal
matters. See TEX. TRANSP.CODEANN. 5 706.006(b) (Vernon Supp. 2004-05). We thus conclude
that a defendant in such a criminal matter whose delinquent payment is collected under a contract
entered in accordance with article 103.0031 may be charged both fees: a fee equal to 30% of the
delinquent payment for the services of the collection agent, and a fee of $30 to provide the
information regarding the delinquent payment to the Department. See infra at p. 6 (discussing
calculation of the 30% collection fee where both the collection fee and the $30 administrative fee
are due).
You next ask whether a commissioners court that has entered a contract with a collection
agent under article 103.0031 of the Code of Criminal Procedure may compel justices of the peace
The Honorable Jeri Yemre - Page 4 (GA-0313)
to use the agent. See Request Letter, supra note 1, at 2. Under article 103.003(a), a justice of the
peace “may collect money payable under this title,” which appears to recognize a justice’s authority
to receive tines and fees or to dispose of fines and fees using the statutory means provided in chapter
45 ofthe Code ofCriminal Procedure. TEX. CODEWM. PROC.ANN. art. 103.003(a) (Vernon Supp.
2004-05); see also id. arts. 45.045, ,046, .047, ,049 (Vernon Supp. 2004-05); infra (describing
permissible means by which a justice may collect or otherwise dispose of a fine). Yet, subsection
(c) stipulates that article 103.003 “does not limit” a commissioners court’s authority “to contract with
a private vendor or private attorney” to provide collection services. Id. art. 103.003(c).
Justices of the peace are constitutional officers created by article V, section 18 of the Texas
Constitution. See TEX. CONST.art. V, 5 18. Article V, section 19 sets out thejurisdiction of a justice
of the peace: “Justice of the peace courts shall have original jurisdiction in criminal matters of
misdemeanor cases punishable by tine only, exclusive jurisdiction in civil matters where the amount
in controversy is two hundred dollars or less, and such other jurisdiction as may be provided by law
. . .” Id. art. V, 5 19. In a criminal action in which the defendant is convicted, the justice must issue
a judgment that the defendant pay a tine and costs to the state. TEX. CODEGRIM.PROC.ANN. art.
45.041(a) (Vernon Supp. 2004-05). The justice may order the defendant to pay:
(A) the entire tine and costs when sentence is pronounced;
(B) the entire fine and costs at some later date; or
(C) a specified portion of the tine and costs at designated intervals.
Id. 5 45.041(b)(l). We are concerned here with a defendant who fails to pay the fine and costs, or
a portion thereof, by the date specified in the judgment.
A court has inherent authority to enforce a final judgment, see Ku&h v. DelMur College, 83 1
S.W.2d 506,510 (Tex. App.-Corpus Christi 1992, nowrit), and several statutes in Code ofcriminal
Procedure chapter 45 provide ajustice with means for collecting or disposing of delinquent tines and
fees. For example, a justice court may order a capiasprofine for the arrest of an adult defendant
who has defaulted on the court’s judgment. TEX. CODEGRIM.PROC.ANN. art. 45.045(a) (Vernon
Supp. 2004-05); see also BLACK’SLAWDICTIONARY200 (7th ed. 1999) (defining “capiusprofine”
aa “a writ for the arrest of a person who had not paid an imposed tine”). Or the justice may order
the defaulting defendant confined in jail until the judgment is “discharged by iaw,” and may order
the tine and costs “collected by execution against the defendant’s property.” TEX. CODE GRIM.
PROC.ANN. arts. 45.046(a), ,047 (Vernon Supp. 2004-05); see also id. art. 45.048 (stating when a
fine and costs are discharged by law). In the alternative, a justice may require a defaulting defendant
“to discharge all or part” of a tine or costs “by performing community service.” Id. art. 45.049(a).
Finally, a justice may hold a defaulting defendant in contempt of court in certain circumstances. See
id. art. 45.050.
We are to harmonize statutes to the extent it is possible to do so. See TEX. GOV’T CODE
iiNN. 5 3 11.025(b) (Vernon 2005). In this situation, we note that a collection agent may collect a fee
The Honorable Jeri Yemre - Page 5 (GA-0313)
in the amount of 30% only on tines, fees, and court costs that are “more than 60 days past due” and
that have been “referred” to the collection agent. TEX. CODEGRIM.PROC.ANN. art. 103.0031(b)
(Vernon Supp. 2004-05). As a practical matter, even though a collection agent may collect a debt
that is less than 60 days past due, the agent will not do so because he or she is not authorized to
collect a fee. On the other hand, ajustice of the peace has authority to enforce a judgment that is not
timely satisfied from the moment the payment is late. See id. arts. 45.045(a), .046(a), ,049. In those
counties that have contracted with a collection agent, a tine or cost that is more than 60 days late may
be collected by a collection agent, but the justice of the peace’s authority to collect or otherwise
dispose of the tine using the means the justice is statutorily authorized to use, by, for example,
allowing the defendant to satisfy all or part of the tine through time-credit or community service or
by determining the defendant is indigent, is not thereby abrogated. See id. art. 103.0031(b), (d)
(indicating that the collection fee may not be collected if the court has made certain findings or
ordered all or part of the fine satisfied through time served or community service); see also id. arts.
45.045(a), .046(a), ,049 (authorizing ajustice court to discharge a delinquent tine through capiaspro
fine, time-served credit, or community service). In other words, the commissioners court may not,
by entering a contract with a collection agent, force a justice court to refrain from taking those
actions the court is statutorily authorized to take with respect to the overdue fines and costs.
You next ask about the proper remedy in the event that a justice of the peace, or any other
elected official who is authorized to collect fees under article 103.003(a), “refuses to forward their
delinquent costs or fees to the collection entity under the contract.” Request Letter, supra note 1,
at 2. We presume you ask about fines or costs that are at least 60 days delinquent.
Article 103.003 l(b) authorizes imposing a 30% collection fee only on items that “have been
referred to” the collection agent. TEX. CODE CRIM. PROC.ANN. art. 103.003 l(b) (Vernon Supp.
2004-05). The article does not indicate, however, how the items are to be referred. The
commissioners court has authority to enter a contract that binds the justice courts (although the
commissioners court may not thereby abrogate the justice’s authority), and Brazoria County has
entered a contract that obligates the county to refer “all delinquent accounts” to the collection agent
“by electronic or magnetic medium.” Contract for Court Fees and Fines Collection Services II,
attached to Request Letter, supra note 1. The justices of the peace are subject to the contract, but
the contract itself does not appear to impose specific duties on the justices.
The remedies we list are premised on an assumption that a particularjustice’s actions violate
the law, but we do not here consider whether anyjustice’s conduct rises to that level. Assuming that
a justice is violating the law, chapter 103 of the Code of Criminal Procedure does not specify a
remedy, nor does chapter 27 of the Government Code, which provides generally for justice courts.
See TEX. CODECRIM. PROC. ANN. ch. 103 (Vernon Supp. 2004-05); TEX. GOV’T CODE ANN. ch. 27
(Vernon 2004). An action for writ of mandamus may be brought in a statutory county court to
compel a justice of the peace to comply with the law if the amount in controversy is within the
county court’s jurisdiction. See TEX. GOV’T CODE ANN. 5 25,0004(a) (Vernon 2004) (providing
statutory county courts withjutisdiction over writs ofmandamus); Meridien Hotels, Inc. v. LHOFin.
Pship I, 97 S.W.3d 731, 736 (Tex. App.-Dallas 2003, no pet.) (construing Government Code
section 25,0004(a)). A justice of the peace who, in an official capacity, intentionally or knowingly
The Honorable Jeri Yenne - Page 6 (GA-0313)
violates the law may, in certain circumstances, be prosecuted for abuse of official capacity under
Penal Code section 39.02. See TEX. PEN. CODE ANN. 5 39.02 (Vernon 2003); Tex. Att’y Gen. Op.
No. DM-396 (1996) at 8. A justice also may be removed from office ifthe justice’s wrongful actions
constituteoffcial misconduct. SeeT~x.Loc. GOV’TCODEANN. 55 87.01 l(3), .012(14), .013(a)(2)
(Vernon 1999); Tex. Att’y Gen. Op. No. DM-396 (1996) at 9. A justice ofthe peace is subject to
the Code of Judicial Conduct and may be disciplined by the State Commission on Judicial Conduct.
See TEX. CONST. art. V, 5 l-a(6); Tex. Att’y Gen. Op. No. DM-396 (1996) at 9. Imposing these
remedies depends on the facts in a particular situation, and we do not consider here whether any
particular justice may be subject to any of these remedies.
You also ask that we respond to two questions raised by local justices of the peace. See
Request Letter, supra note 1, at 2; Memorandum f?om Justices of the Peace attached to Request
Letter. Positing a scenario in which “[a]n original warrant is issued on September 1,2004 for a total
dollar amount of $300.00,” the justices ask:
[ 1.1 After 60 days from issuance of the original warrant, can a
Justice of the Peace office forward the warrant to a collection firm
adding 30% ($90.00) to the original cost of the warrant and to Omni
adding $30.00 to the now $390.00 warrant at the same time bringing
the total due on the warrant to $420.00?
[2.] Can [the] Commissioners court of a county enter into an
agreement with a collection firm to collect warrants in a Justice ofthe
Peace office against the will of the Justice of the Peace?
Memorandum from Justices of the Peace attached to Request Letter, supva note 1.
Withrespect to thejustices’ first question, article 103.0031(b)permits acommissioners court
to authorize a collection agent to add a 30% collection fee “on each item described in Subsection
(a),” including unpaid tines, fees, and court costs, “that is more than 60 days past due and has been
referred to the” collection agent. TEX. CODE GRIM. PROC. ANN. art. 103.0031(b) (Vernon Supp.
2004-05); see id. art. 103.003 l(a) (listing items for which a county may engage a collection agent).
Under section 706.006 ofthe Transportation Code, a $30 administrative fee is assessed when either
a defendant (a) fails to appear for a complaint or citation or (b) fails to pay or satisfy a court
judgment. See TEX. TRANSP. CODE ANN. 3 706.006(a)-(b) (Vernon Supp. 2004-05). Whether a
collection agent may collect a 30% collection fee on the $30 administrative fee, as well as on the
other fines, fees, and costs depends on whether the administrative fee is 60 days past due. For
example, the $30 administrative fee is 60 days past due simultaneously with fines, fees, and costs
assessed in an action in which the defendant failed to appear, since all were assessed at the same
time. If the $30 administrative fee is 60 days past due, the collection agent may collect a 30% fee
on the administrative fee, so that the total due is $429: ($300 + $30) x 30% = $429. On the other
hand, if the $30 administrative fee accrued when the defendant failed to pay or satisfy a court
judgment, the court judgment is 60 days past due before the administrative fee is 60 days past due.
In this circumstance, the agent may not collect a 30% fee on the $30 if it is not yet 60 days past due,
The Honorable Jeri Yenne - Page 7 (GA-0313)
and the total due of the defendant is $420: ($300 x 30%) + $30 = $420. The total due in any
particular circumstance will depend, therefore, on the facts.
With respect to the justices’ second question, the county has authority to enter a contract with
a collection agent under article 103.0031 even if the justice court is against the contract. See TEX.
CODEGRIM:PROC.ANN. art. 103.0031(a) (Vernon Supp. 2004-05). Moreover, the collection agent
may collect fines and costs that are over 60 days late even though the justice of the peace with
original jurisdiction of the case disapproves of the contract.
The Honorable Jeri Yemre - Page 8 (GA-0313)
SUMMARY
A defendant in a matter described in section 706.002 of the
Transportation Code who has failed to pay court-ordered fines or
costs must pay both (1) a 30% fee if the county has contracted with
a collection agent under Code of Criminal Procedure article
103.003 1(g) and (2) a $30 fee if the county has entered a contract
under Transportation Code section 706.002.
Under articles 103.003 and 103.0031 ofthe Code ofCriminal
Procedure, a county commissioners court may contract with a private
collection agent to collect delinquent fines and court costs that were
imposed by a justice court. The commissioners court may not thereby
abrogate the justice court’s authority to collect or otherwise dispose
of the tines and costs, however.
Whether a collection agent may collect a 30% collection fee
under article 103,0031(b) of the Code of Criminal Procedure on
the $30 administrative fee levied under section 706.006 of the
Transportation Code will depend on whether the $30 fee is 60 days
past due.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee