Can a Texas county keep a handling fee out of my cash bail refund?

Plain-English summary

When a defendant posts a cash bail bond, the money is parked with the court while the case proceeds, and once the defendant meets the bond's conditions, the court orders it refunded. The Denton County Criminal District Attorney asked the Attorney General about a recurring snag: did the county clerk get to keep a handling fee out of that refund?

The tension was between two statutes. Article 17.02 of the Code of Criminal Procedure governs cash bail bond refunds. Local Government Code section 117.055 lets a county clerk, on withdrawing certain registry funds that earned no interest, deduct a fee equal to five percent of the withdrawal, capped at $50, to cover accounting and administrative expenses. For years, the Attorney General had treated the two as irreconcilable and let the fee stand: under the older version of article 17.02 (which said the cash "shall be refunded to the defendant"), and because section 117.055 had been enacted later, two earlier opinions (JC-0163 in 1999 and GA-0436 in 2006) concluded that section 117.055 prevailed and the fee could be deducted.

The Legislature amended article 17.02 in 2011, which forced a fresh look. The amended statute says any cash funds deposited "shall be ... refunded ... in the amount reflected on the face of the receipt" to the person named on the receipt (including the defendant), or to the defendant if no one else can produce a receipt. By tying the refund to the full amount on the receipt, the amended article re-enacted the requirement that the entire cash bail amount be returned. That still conflicts with section 117.055, which would shave off a fee. The difference now is timing: under the code-construction rule in Government Code section 311.025(a), when two statutes irreconcilably conflict, the one enacted later prevails. The 2011 amendment to article 17.02 is the most recent enactment, so it controls over section 117.055 for cash bail bond refunds.

The practical result: the county is no longer entitled to deduct the fee, and the first two questions (which asked whether the clerk could withhold the section 117.055 fee) were answered no. Because that 2011 amendment changed the law, the opinion expressly held that the older opinions, JC-0163 and GA-0436, were superseded by legislative enactment, even though each had correctly read the law in force when it issued. The opinion declined to take up the remaining questions (about receipts, identification, notice, and how a clerk decides someone is "unable to produce a receipt"), explaining that those were practical and logistical matters for the county clerk in the first instance, not purely legal questions for the opinion process.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Denton County and county clerks (as the opinion described it): The opinion read the 2011 amendment to article 17.02 to bar deducting the section 117.055 fee from a cash bail bond refund. It answered the first two questions in the negative.

Defendants and others entitled to a refund (as the opinion described it): The opinion treated the refund as owed in the full amount reflected on the receipt, with no administrative fee carved out.

On the remaining procedural questions (as the opinion described it): The opinion declined to answer questions about receipts, identification, and notice, calling them practical and logistical matters for the county clerk, not purely legal questions for the opinion process.

Common questions

Can a county still take a handling fee out of a cash bail refund?
No, as the opinion read the law after the 2011 amendment. Article 17.02 now requires the refund in the full amount on the receipt, and as the later-enacted statute it prevails over the fee in Local Government Code section 117.055.

What changed in 2011?
The Legislature amended article 17.02 to require the refund to be paid in the amount reflected on the face of the receipt, to the person named on the receipt (or to the defendant if no one else can produce one). That made it the most recent enactment in the conflict.

Why were the older opinions superseded?
Because they rested on the prior statutory landscape. The opinion said JC-0163 and GA-0436 correctly read the law when issued, but the 2011 amendment to article 17.02 changed which statute was later-enacted, so their conclusion allowing the fee no longer held.

Did the opinion explain exactly how clerks should verify receipts and identity?
No. It said those were practical and logistical issues for the county clerk to handle in the first instance, not purely legal questions, so it did not address them.

Background and statutory framework

Article 17.01 defines bail, and article 17.02 governs bail bonds, including cash bail bonds (a defendant's cash deposit, as recognized in Melton v. State). The 2011 amendment to article 17.02 keyed the refund to the amount on the receipt. Local Government Code section 117.055 authorizes a clerk to deduct a fee (five percent, capped at $50) from certain non-interest-bearing registry-fund withdrawals; registry funds include cash bail bonds (sections 117.001(3) and 117.052(c)(6)). Government Code section 311.025(a) provides that when statutes irreconcilably conflict, the later enactment prevails.

The opinion drew on In re Tharp and Professional Bondsmen of Texas v. Carey (forms of bail bonds), McConathy v. State (a cash bail bond secures the defendant's appearance and is not a revenue measure), and Clark v. Young (the presumption behind section 311.025). It superseded its prior opinions JC-0163 (1999) and GA-0436 (2006), and cited GA-0876 (2011) for the rule that the opinion process answers purely legal questions.

Citations

Cases:

• In re Tharp, 351 S.W.3d 598, 600 (Tex. App.—Austin 2011, no pet.)
• Prof'l Bondsmen of Tex. v. Carey, 762 S.W.2d 691, 693 (Tex. App.—Amarillo 1988, no writ)
• Melton v. State, 993 S.W.2d 95, 97 (Tex. 1999)
• McConathy v. State, 528 S.W.2d 594, 596 (Tex. Crim. App. 1975)
• Clark v. Young, 787 S.W.2d 166, 168-69 (Tex. App.—Fort Worth 1990, writ denied)

Statutes:

• Tex. Code Crim. Proc. Ann. art. 17.01 (West 2005)
• Tex. Code Crim. Proc. Ann. art. 17.02, 17.02(1) (West Supp. 2011)
• Tex. Code Crim. Proc. Ann. arts. 17.03 (West Supp. 2011), 17.04 (West 2005)
• Tex. Loc. Gov't Code Ann. § 117.055, 117.001(3), 117.052(c)(6) (West 2008)
• Tex. Gov't Code Ann. § 311.025(a) (West 2005)
• Act of May 27, 1965, 59th Leg., R.S., ch. 722, 1965 Tex. Gen. Laws 317, 374

Prior Attorney General opinions referenced:

• Tex. Att'y Gen. Op. Nos. IM-1162 (1990), DM-282 (1994), JC-0024 (1999), JC-0163 (1999), GA-0436 (2006), GA-0773 (2010), GA-0876 (2011)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0960
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0960.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

August 17, 2012

The Honorable Paul Johnson Opinion No. GA-0960
Denton County Criminal District Attorney
Post Office Box 2850 Re: Refund of cash bail bonds under article 17.02,
Denton, Texas 76202 Code of Criminal Procedure (RQ-1045-GA)

Dear Mr. Johnson:

You pose several questions about the refund of cash bail bonds and the possible conflict between article 17.02 of the Code of Criminal Procedure and section 117.055 of the Local Government Code.[1]

Bail is "the security given by the accused that he will appear and answer before the proper court the accusation brought against him." TEX. CODE CRIM. PROC. ANN. art. 17.01 (West 2005). Under the Code of Criminal Procedure, bail can take at least two forms, a bail bond or a personal bond.[2] See id; see also In re Tharp, 351 S.W.3d 598, 600 (Tex. App.—Austin 2011, no pet.) (characterizing the two types of bonds). A bail bond can be satisfied through either a third-party surety guaranteeing the appearance of the defendant or by the defendant's depositing a set amount of cash with the court. See TEX. CODE CRIM. PROC. ANN. art. 17.02 (West Supp. 2011); see also Prof'l Bondsmen of Tex. v. Carey, 762 S.W.2d 691, 693 (Tex. App.—Amarillo 1988, no writ) ("[I]t is clear that a bail bond can be satisfied by posting either a surety bond or a cash bond in the amount set by the court."). Such a cash deposit by a defendant is a cash bail bond. See Melton v. State, 993 S.W.2d 95, 97 (Tex. 1999).

Article 17.02 provides for the refund of a cash bail bond. See TEX. CODE CRIM. PROC. ANN. art. 17.02 (West Supp. 2011). Prior to a 2011 amendment, article 17.02 provided that the refund of a cash bail bond could be made only to the defendant. See Act of May 27, 1965, 59th Leg., R.S., ch. 722, 1965 Tex. Gen. Laws 317, 374 ("Any cash funds deposited ... shall be refunded to the defendant ...."); see also Tex. Att'y Gen. Op. Nos. GA-0773 (2010) at 2 (noting article 17.02's mandatory duty to refund the cash bond to the defendant), JC-0024 (1999) at 2 (recognizing that cash bail bond refund belongs to the defendant). With the amendment, article 17.02 now provides that

[a]ny cash funds deposited under this article shall be receipted for by the officer receiving the funds and, on order of the court, be refunded, after the defendant complies with the conditions of the defendant's bond, to:

(1) any person in the name of whom a receipt was issued, in the amount reflected on the face of the receipt, including the defendant if a receipt was issued to the defendant; or

(2) the defendant, if no other person is able to produce a receipt for the funds.

TEX. CODE CRIM. PROC. ANN. art. 17.02 (West Supp. 2011).

The other provision about which you ask is section 117.055 of the Local Government Code. It pertains to the administration of county expenses and provides that

[t]o compensate the county for the accounting and administrative expenses incurred in handling the registry funds[3] that have not earned interest, including funds in a special or separate account, the clerk shall, at the time of withdrawal, deduct from the amount of the withdrawal a fee in an amount equal to five percent of the withdrawal but that may not exceed $50.

TEX. LOC. GOV'T CODE ANN. § 117.055 (West 2008) (footnote added).

You seek clarification on the following questions relating to the two provisions:

(1) If a court orders a cash bond refund, are the requirements of article 17.02(1) met if a clerk withdraws from the registry the amount reflected on the face of the receipt, deducts the handling fee provided for in [section] 117.055, and refunds the balance to the person in whose name the receipt was issued?

(2) May a court include in its refund order instructions to deduct the handling fee provided for in [section] 117.055? Is this necessary before a clerk may deduct the fee from the amount refunded to a person described in [article] 17.02(1) (a person in whose name a receipt was issued)?

(3) Does [article] 17.02(2) presume that a receipt was issued in the name of someone other than the defendant?

(4) Does [article] 17.02(1) require the person named in the receipt (defendant or other named person) to produce his own receipt before the refund will be issued? Or, may the clerk issue a refund to the person named in the (state's copy of the) receipt? If so, what identification, if any, must the clerk require of the named person before issuing the refund?

(5) How may the clerk determine when a person is "unable to produce a receipt." For example, is the person entitled to notice of the refund order and an opportunity to claim his refund within a certain time?

Request Letter at 3.

Because under former article 17.02 all cash deposited as a bail bond was to be refunded to the defendant, and under section 117.055 an administrative fee was to be withheld from a cash bail refund, this office previously determined that the two provisions irreconcilably conflicted and that section 117.055, as the later-enacted statute, prevailed. See Tex. Att'y Gen. Op. No. JC-0163 (1999) at 3. We subsequently reaffirmed that conclusion. See Tex. Att'y Gen. Op. No. GA-0436 (2006) at 2, 4 (concluding that because article 17.02 had not been amended subsequent to the issuance of Opinion JC-0163, section 117.055 remained the later-enacted statute and still prevailed).

Because the Legislature amended article 17.02 in 2011, we must reconsider those opinions. The new language in subarticle 17.02(1) requires the cash bail bond refund to be "in the amount reflected on ... the receipt." TEX. CODE CRIM. PROC. ANN. art. 17.02(1) (West Supp. 2011). By referring to the receipt, which is issued with respect to "any cash funds deposited under this article," subarticle 17.02(1) re-enacts the statutory requirement that the full amount paid as the cash bail bond must be returned. See id. (emphasis added). Cf. McConathy v. State, 528 S.W.2d 594, 596 (Tex. Crim. App. 1975) (recognizing that the primary purpose of a bail bond, including a cash bail bond, is to secure the trial of the accused, and "is not a revenue measure intended to be a substitution for a fine"). Accordingly, article 17.02 as amended continues to conflict irreconcilably with section 117.055, which requires the deduction of a fee. Because the 2011 amendment is the most recent legislative enactment, subarticles (1) and (2) are now the later-enacted provisions and therefore prevail over section 117.055 with respect to cash bail bond refunds. See TEX. GOV'T CODE ANN. § 311.025(a) (West 2005); see also Clark v. Young, 787 S.W.2d 166, 168-69 (Tex. App.—Fort Worth 1990, writ denied) (stating that "we assume section 311.025 rests upon the presumption that when enacting new law that is in conflict with older law, it is presumed that the legislature intends to amend the older law").

This conclusion requires that your first two questions be answered in the negative because the amended statute prohibits the county from deducting the fee. Although Attorney General Opinions JC-0163 and GA-0436 correctly interpreted the law as it existed at the time they were each issued, their conclusion that a county may deduct the fee was superseded by the 2011 amendment to article 17.02.

Your remaining questions are not purely legal questions but instead raise practical and logistical considerations that must be addressed by the county clerk in the first instance. Accordingly, they are inappropriate for the opinion process and we do not address them. See Tex. Att'y Gen. Op. No. GA-0876 (2011) at 1 (stating that "the role of the opinion committee is to advise authorized requesters about purely legal questions").

SUMMARY

Due to the recent legislative amendment to article 17.02 of the Code of Criminal Procedure, a county is no longer entitled to deduct a fee for accounting and administrative expense from the refund of a cash bail bond.

Attorney General Opinions JC-0163 and GA-0436 are superseded due to legislative enactment.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[1] Letter from the Office of Denton Cnty. Criminal Dist. Att'y, Honorable Paul Johnson, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Mar. 8, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] A personal bond is a bond with no sureties or other security. See TEX. CODE CRIM. PROC. ANN. arts. 17.03 (West Supp. 2011) (providing for personal bonds), 17.04 (West 2005) (providing the requisites of a personal bond).

[3] "Registry funds" subject to chapter 117 are "funds tendered to the clerk for deposit into the registry of the court." TEX. LOC. GOV'T CODE ANN. § 117.001(3) (West 2008). These funds include funds deposited as a cash bail bond. See id. § 117.052(c)(6); Tex. Att'y Gen. Op. Nos. DM-282 (1994) at 2 (concluding that cash bail bonds fall within the scope of chapter 117); IM-1162 (1990) at 2 (same). You do not tell us whether the cash bail bonds are deposited in non-interest bearing accounts. Because you ask specifically about section 117.055, we assume for purposes of this opinion that they are.