Can a Texas district attorney keep a commission on bond forfeiture money?

Plain-English summary

The Fannin County Criminal District Attorney asked the Attorney General several questions about commissions on money his office collects through bond forfeiture proceedings. His office prosecutes bond forfeiture cases, collects forfeitures from cash bonds and sureties, and at the time deposited all forfeited amounts into the county general fund. He asked whether he could retain part of that as a commission under Government Code section 41.005, whether the commissioners court must approve it, into which county fund it goes, and for what purposes it may be used.

The opinion answered the first two questions in the district attorney's favor. Section 41.005 says a district attorney "may retain a commission from money collected for the state or a county," and money obtained through bond forfeiture is "money collected for the state or a county" (forfeitures are obligations recovered in the name of the state). Because "may" creates discretionary authority, section 41.005 authorizes a district attorney to retain a commission on bond forfeiture proceeds if he chooses, and because the commission is directly authorized by statute, it does not require commissioners court approval. The opinion was careful to add that a district attorney has no personal claim to these commissions; they are "fees of office" under article XVI, section 61 of the Constitution.

The opinion answered the last two questions by pointing to where the money must go and who controls it. Article XVI, section 61(d) directs that all fees earned by district, county, and precinct officers be paid into the county treasury, and the Legislature cannot authorize what the Constitution prohibits, so section 41.005 cannot be read to let the district attorney keep commissions out of the county treasury. The district attorney therefore has no discretion: the commission goes into the county treasury. Within the treasury, the Local Government Code directs the officer to deposit the money with the county treasurer, who places it in a fund to the credit of the department that collected it, here the district attorney's office. As for use, the commissioners court generally controls county money through its budget. The Legislature has sometimes dedicated specific funds to a specific official's administration (for example, hot check fees), but it did not do so for bond forfeiture commissions; the fact that it dedicated other funds but not these indicates it did not intend to. So the commissioners court generally determines how the commissions may be used, subject to any other legal restrictions.

Currency note

This opinion was issued in 2013. 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

District attorneys (as the opinion described it): The opinion told them section 41.005 allows retaining a commission on bond forfeiture money collected for the state or county, at the district attorney's discretion and without commissioners court approval, while stressing the district attorney has no personal claim to the money.

Commissioners courts (as the opinion described it): The opinion concluded the commission does not require the court's approval to be retained, but the court generally determines how the commission may be used through its budget process, because the Legislature did not dedicate bond forfeiture commissions to the district attorney's administration.

County treasurers (as the opinion described it): The opinion explained the commission must be deposited into the county treasury, and the treasurer places it in a fund to the credit of the department that collected the money.

Common questions

Can a Texas district attorney keep a commission on bond forfeiture collections?
Yes, according to the opinion. Government Code section 41.005 lets a district attorney retain a commission from money collected for the state or a county, and bond forfeiture money qualifies. The word "may" makes it discretionary.

Does the commissioners court have to approve the commission?
No. The opinion concluded the commission is directly authorized by statute, so retaining it does not require commissioners court approval.

Where does the commission money go?
Into the county treasury. The opinion explained that article XVI, section 61(d) of the Constitution requires fees earned by district, county, and precinct officers to be paid into the county treasury, and the treasurer places the money in a fund credited to the collecting department.

Can the district attorney decide how to spend the commission?
Generally no. The opinion concluded the commissioners court generally determines how the commissions may be used, because the Legislature did not dedicate bond forfeiture commissions to the district attorney's office the way it dedicated some other funds.

Background and statutory framework

The opinion turned on Government Code section 41.005, which lets a district attorney retain a commission from money collected for the state or a county and, after deducting commissions, pay the money into the proper treasury. It read "money collected for the state or a county" to include bond forfeiture proceeds, citing Code of Criminal Procedure article 103.004(a) (forfeitures as obligations recovered in the name of the state), and relied on Government Code section 311.016(1) ("may" creates discretionary authority). The "fees of office" point rested on article XVI, section 61 of the Constitution and on Banks v. State, which described such commissions as fees of office to which the official has no personal claim.

For where the money goes, the opinion applied article XVI, section 61(d) (fees paid into the county treasury) and the rule that the Legislature cannot authorize what the Constitution prohibits (Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers' Comp. Comm'n). It traced the deposit mechanics through Local Government Code section 154.003 and section 113.021(a)-(b) (deposit with the county treasurer, credited to the collecting department). For use of the funds, it pointed to the commissioners court's general control of county money (Local Government Code sections 111.001-.095), contrasted the dedicated hot check fee fund (Code of Criminal Procedure article 102.007(f)), and invoked the interpretive principle that the Legislature knows how to dedicate funds when it intends to (FM Props. Operating Co. v. City of Austin).

Citations

Cases:

• Banks v. State, 362 S.W.2d 154, 155 (Tex. Civ. App.-Austin 1962, writ ref'd)
• Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 381 (Tex. 2002)
• FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex. 2000)

Statutes and constitutional provisions:

• Tex. Gov't Code Ann. § 41.005(a)-(b) (West 2004); § 41.005(a); § 41.005(b); § 41.005; § 311.016(1) (West 2005)
• Tex. Code Crim. Proc. Ann. art. 103.004(a) (West 2006); art. 102.007(f) (West Supp. 2012)
• Tex. Const. art. XVI, § 61; art. XVI, § 61(d)
• Tex. Loc. Gov't Code Ann. § 154.003 (West 2008); § 113.021(a)-(b) (West Supp. 2012); §§ 111.001-.095 (West 2008 & Supp. 2012)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0997
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga0997.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

April 3, 2013

The Honorable Richard E. Glaser Opinion No. GA-0997
Fannin County Criminal District Attorney
101 East Sam Rayburn Drive, Suite 301 Re: Whether a district attorney may, pursuant to
Bonham, Texas 75418 section 41.005, Government Code, retain a
commission on bond forfeiture collection
(RQ-1090-GA)

Dear Mr. Glaser:

You ask several questions relating to whether a district attorney may retain a commission on money collected through bond forfeiture proceedings.[1] You tell us that your office "prosecutes all bond forfeiture cases arising in Fannin County, collects the forfeitures from cash bonds and sureties, as applicable, and deposits the proceeds with the appropriate officer" and that "[c]urrently, all forfeited amounts are deposited into the general fund of the county." Request Letter at 1.

You first ask whether section 41.005 of the Government Code authorizes you to retain a portion of the bond forfeiture funds your office collects as a commission. Id. Section 41.005 of the Government Code provides that a district attorney "may retain a commission from money collected for the state or a county" and that "after deducting the commissions provided by this section," the district attorney shall deposit the money collected into the state or county treasury. TEX. GOV'T CODE ANN. § 41.005(a)-(b) (West 2004). Money obtained through bond forfeiture proceedings constitutes "money collected for the state or a county" under section 41.005. See TEX. CODE CRIM. PROC. ANN. art. 103.004(a) (West 2006) (referring to forfeitures as "obligations recovered in the name of the state"). In addition, the word "'may' creates discretionary authority" for the district attorney to retain a commission if he so chooses. TEX. GOV'T CODE ANN. § 311.016(1) (West 2005). Thus, section 41.005 authorizes district attorneys to retain as a commission on behalf of the state a portion of money collected in bond forfeiture proceedings. We note that a district attorney has no personal claim to commissions collected under section 41.005. See TEX. CONST. art. XVI, § 61; Banks v. State, 362 S.W.2d 154, 155 (Tex. Civ. App.-Austin 1962, writ ref'd) (noting that after the enactment of article XVI, section 61, commissions paid to probate judges "constituted 'fees of office,' but to which the official had no personal claim").

Your second question is whether "such a commission is subject to the approval of the Commissioners Court." Request Letter at 1. As noted above, chapter 41 of the Government Code explicitly provides that the district attorney "may retain a commission from money collected for the state or a county." TEX. GOV'T CODE ANN. § 41.005(b) (West 2004). Thus, state law allows a commission to be retained if the district attorney chooses. Id. § 311.016(1) (West 2005) ("'may' creates discretionary authority"). The commission is directly authorized by statute and therefore does not require the approval of the commissioners court.

You next ask, "Into which county fund is such a commission properly deposited . . . ?" Id. Article XVI, section 61 of the Constitution directs that "[a]ll fees earned by district, county and precinct officers shall be paid into the county treasury." TEX. CONST. art. XVI, § 61(d) (emphasis added). Section 41.005 of the Government Code states that a "district . . . attorney shall, after deducting the commissions provided by this section, pay the money into the treasury of the state or of the county to which it belongs." TEX. GOV'T CODE ANN. § 41.005(a) (West 2004). It is a fundamental principle of statutory construction that "the Legislature may not authorize an action that our Constitution prohibits." Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 381 (Tex. 2002). Thus, to the extent that language in section 41.005(a) were interpreted to authorize the withholding of a commission from the county treasury, such language would be void. Subsection 41.005(a) need not be interpreted to conflict with article XVI, section 61, however, because nothing in section 41.005(a) directs the district attorney to place commissions in an account other than the county treasury. Article XVI, section 61, of the Texas Constitution requires the district attorney to deposit the commission into the county treasury, and the district attorney has no discretion to do otherwise. TEX. CONST. art. XVI, § 61(d).

Section 41.005 does not specify any particular fund within the county treasury into which money collected on behalf of the state shall be deposited. See TEX. GOV'T CODE ANN. § 41.005 (West 2004). Generally, however, salaried officers "shall charge and collect . . . all . . . commissions . . . for official services performed" and "shall dispose of the collected money as provided by Subchapter B, Chapter 113." TEX. LOC. GOV'T CODE ANN. § 154.003 (West 2008) (emphasis added). Subchapter B, chapter 113 of the Local Government Code directs the officer to deposit the commission with the county treasurer, who in turn "shall deposit the money in the county depository in the proper fund to the credit of the person or department collecting the money." Id. § 113.021(a)-(b) (West Supp. 2012). Thus, the Local Government Code requires the commission to be deposited with the county treasurer, who is required to place the money in a fund to the credit of the district attorney's office, which is the department responsible for collecting the money.

Finally, you ask for what purpose a commission under section 41.005 may be used. Request Letter at 1. You note that commissions "are proceeds of actions initiated and prosecuted by the District Attorney's office" and suggest that it would "seem[] reasonable to use them in a manner comparable to the uses of other funds retained by the District Attorney; namely, for the official purposes of the [district attorney's] office." Id. at 2. The commissioners court generally controls county money and determines how to spend it through its annual budget process. See generally TEX. LOC. GOV'T CODE ANN. §§ 111.001-.095 (West 2008 & Supp. 2012). In certain instances, however, the Legislature has specified the use for county funds and provided that a specific county official shall administer particular funds. See, e.g., TEX. CODE CRIM. PROC. ANN. art. 102.007(f) (West Supp. 2012) (establishing a special fund for hot check fees "to be administered by the county attorney, district attorney, or criminal district attorney" and noting that expenditures from it are "at the sole discretion of the attorney" for specified purposes). In this case, the Legislature has not specified that bond forfeiture commissions shall be used for the district attorney's office, nor has it determined that the district attorney is authorized to administer the fund into which they are placed. The fact that the Legislature has dedicated other funds, but not commissions, for the use and administration by the district attorney's office indicates that it did not intend to limit the funds in this manner. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex. 2000) (relying on the principle of statutory construction that the Legislature knows how to enact laws effectuating its intent). Therefore, the commissioners court generally determines how bond forfeiture commissions may be used, subject to any other legal restrictions on its authority.

SUMMARY

Section 41.005 of the Government Code authorizes a district attorney to separate a portion of bond forfeiture collections as a commission without the approval of the commissioners court. By statute, the commission shall be deposited in the county treasury in a fund to the credit of the person or department collecting the money. The commissioners court generally determines how such commissions may be used, subject to any other legal restrictions on its authority.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chairman, Opinion Committee

Becky P. Casares
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Richard E. Glaser, Fannin Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Oct. 3, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").