Can a Texas justice of the peace keep part of the fines he collects to pay for extra staff if the commissioners court approves?

Texas AG Opinion JM-1120: Can a Justice of the Peace Keep Part of the Fines to Pay for Staff?

Plain-English summary

A justice of the peace in Jim Wells County was, in the county attorney's words, "swamped with hot checks under $20.00," and the commissioners court would not give the office more help. The proposed fix was creative: let the justice assess a $50 fine on every Class C misdemeanor bad-check case and keep part of that money to pay the salary of an extra employee, with the commissioners court's approval. The county attorney asked the Attorney General whether that was legal.

The Attorney General said no, for two independent reasons. First, a commissioners court is not a general-purpose local government. It can exercise only the powers the constitution or the statutes specifically give it, and neither the constitution nor any statute lets a commissioners court authorize a justice of the peace to keep a slice of the fines he assesses to hire staff. So the commissioners court simply had no power to approve the arrangement.

Second, the scheme would run into the constitution. Under section 12.23 of the Penal Code, a Class C misdemeanor is punishable by a fine of up to $200. Forcing a minimum $50 fine on every hot-check case in one county, purely to raise money for an employee, would make the punishment for the same state-defined crime heavier in Jim Wells County than elsewhere. In Texas, court costs and fines in misdemeanor cases are treated as part of the punishment, and the Attorney General had already held (in Opinion JM-880) that letting different counties assess different amounts for the same offense would violate both due process and equal protection. The same logic doomed this plan.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG 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.

The statutes cited here (Local Government Code section 112.052 and Penal Code section 12.23) have been amended and recodified over the years, and Class C misdemeanor fine limits and justice-court fine accounting rules may read differently today. The constitutional principle, that the punishment for a state crime cannot be manipulated county by county to raise revenue, remains the core point, but anyone dealing with a present-day fine or fee question should check current law.

Who this opinion affected (as of 1989)

Justices of the peace and their commissioners courts: The opinion closed off a revenue workaround. A justice court that needed more staff could not fund it by keeping a cut of the fines, and the commissioners court could not authorize it. The remedy for an overloaded office was a budget appropriation, not a self-funding fine.

Defendants in Class C misdemeanor cases: The opinion protected them from a county-specific minimum fine imposed to raise money rather than to fit the offense. Their punishment could not be inflated just because they happened to be prosecuted in a particular county.

County budget officials: The opinion reinforced that funding for court staff has to come through the ordinary appropriations process, not by earmarking a portion of criminal fines.

Common questions

Can a commissioners court let a JP keep part of his fines to pay for an employee?
No. The Attorney General concluded the commissioners court has no such power. It can exercise only the authority the constitution or statutes specifically give it, and none of them allow this.

What is wrong with a mandatory $50 minimum fine on hot-check cases?
It would make the penalty for the same state-defined crime differ from county to county, which the Attorney General concluded violates due process and equal protection. Fines and costs in misdemeanor cases are treated as part of the punishment in Texas.

So how is a swamped justice court supposed to get more help?
Through the normal county budget process. The opinion did not authorize any self-funding mechanism; extra staff has to be appropriated, not paid for out of retained fines.

Background and statutory framework

Section 112.052 of the Local Government Code provides that a fine imposed by a justice of the peace is charged against the justice, who may discharge the resulting indebtedness by filing a county treasurer's receipt with the county clerk, by showing to the commissioners court's satisfaction that he used due diligence to collect the fine, or by showing that the fine was satisfied by imprisonment or labor. (A footnote noted that under Tate v. Short, 401 U.S. 395 (1971), a defendant may not be imprisoned merely because he is too poor to pay a fine; see Attorney General Opinion JM-977 (1988).)

The first ground for the opinion was the limited nature of commissioners court power. Commissioners courts may exercise only such powers as are specifically conferred on them by the constitution or the statutes. Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948); see Tex. Const. art. V, § 18. Neither source empowers a commissioners court to let a justice of the peace retain a portion of assessed fines to hire an additional employee.

The second ground was constitutional. Section 12.23 of the Penal Code sets the maximum Class C misdemeanor fine at $200. A mandatory $50 minimum in every hot-check case in Jim Wells County would set the penalty there at not less than $50 nor more than $200, higher at the floor than in other counties. Quoting Attorney General Opinion JM-880 (1988), which had found unconstitutional a statute letting a commissioners court set fees in misdemeanor cases, the opinion reasoned that costs in misdemeanor criminal cases are assessed as part of the punishment (Ex parte Carson, 159 S.W.2d 126 (Tex. Crim. App. 1942); Ex parte Mann, 46 S.W. 828 (Tex. Crim. App. 1898); see also Attorney General Opinion JM-443 (1986); cf. United States v. Palmer, 809 F.2d 1504 (11th Cir. 1987) (imposition of costs as punishment constitutional)), and that letting different counties assess different amounts for the same penal offense would let the penalty for state-defined crimes vary from county to county, violating both due process and equal protection (U.S. Const. 5th and 14th Amends.; Tex. Const. art. I, §§ 3, 19; see Memet v. State, 642 S.W.2d 518 (Tex. App. - Houston [14th Dist.] 1982, pet. ref'd); see also Ex parte Ferguson, 132 S.W.2d 408 (Tex. Crim. App. 1939); Ex parte Sizemore, 8 S.W.2d 134 (Tex. Crim. App. 1928)). Applying that to the proposal, the opinion concluded the minimum-fine scheme would result in a different penalty for a state-defined crime in Jim Wells County than in other counties and would violate due process and equal protection.

Citations

Statutory and constitutional authorities:

• Local Government Code § 112.052 (fines charged against the justice; discharge of indebtedness)
• Penal Code § 12.23 (Class C misdemeanor punishable by a fine not to exceed $200)
• Texas Constitution art. V, § 18 (commissioners courts); art. I, §§ 3, 19 (equal rights; due course of law)
• U.S. Constitution, 5th Amendment; 14th Amendment (due process and equal protection)

Cases:

• Tate v. Short, 401 U.S. 395 (1971) (imprisonment for nonpayment by the indigent)
• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948) (commissioners courts exercise only powers specifically conferred)
• Ex parte Carson, 159 S.W.2d 126 (Tex. Crim. App. 1942); Ex parte Mann, 46 S.W. 828 (Tex. Crim. App. 1898); Ex parte Ferguson, 132 S.W.2d 408 (Tex. Crim. App. 1939); Ex parte Sizemore, 8 S.W.2d 134 (Tex. Crim. App. 1928) (costs as part of punishment)
• United States v. Palmer, 809 F.2d 1504 (11th Cir. 1987) (costs as punishment held constitutional)
• Memet v. State, 642 S.W.2d 518 (Tex. App. - Houston [14th Dist.] 1982, pet. ref'd)

Attorney General opinions referenced:

• JM-977 (1988); JM-880 (1988); JM-443 (1986)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1120
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1120.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

December 19, 1989

Honorable Jesusa Sanchez-Vera
Jim Wells County Attorney
P.O. Drawer 2080
Alice, Texas 78333

Opinion No. JM-1120

Re: Whether a commissioners court may authorize a justice of the peace to retain a portion of assessed fines for the purpose of funding additional positions (RQ-1851)

Dear Ms. Sanchez-Vera:

You ask whether a justice of the peace may, with the authorization and approval of the commissioners court, assess a $50 fine in a Class C misdemeanor "bad check" case and retain a portion of the fine to pay the salary of an additional employee in his office.

You advise that a justice of the peace "is swamped with hot checks under $20.00" and the commissioners court refuses to provide additional help for the office. The justice requests the authorization and approval of the commissioners court to assess each hot check violator a fine of $50 and retain a portion of the fine to pay the salary of an additional employee for his office.

Section 112.052 of the Local Government Code provides that a fine imposed by a justice of the peace shall be charged against the justice. Subsection (b) of section 112.052 provides that the justice may discharge the indebtedness by filing a county treasurer's receipt for the amount with the county clerk, showing to the satisfaction of the commissioners court that the justice has used due diligence in an attempt to collect the fine, or showing that the fine has been satisfied by imprisonment or labor.[Footnote 1]

Commissioners courts may exercise only such powers as are specifically conferred upon them by the constitution or the statutes. Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948); see Tex. Const. art. V, § 18. Neither the constitution nor the statutes empower the commissioners court with authority to allow a justice of the peace to retain a portion of fines assessed to hire an additional employee.

To permit a justice of the peace to assess a minimum fine of $50 in every Class C misdemeanor hot check case to pay the salary of an employee would also violate the United States and Texas Constitutions. Section 12.23 of the Penal Code provides that a person adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $200. The system under consideration would make the penalty in a Class C misdemeanor hot check case in Jim Wells County a fine of not less than $50 nor more than $200. In Attorney General Opinion JM-880 (1988) a statute allowing a commissioners court to set fees in misdemeanor cases was found unconstitutional. Attorney General Opinion JM-880 stated:

In Texas, costs in misdemeanor criminal cases are assessed as part of the punishment. Ex parte Carson, 159 S.W.2d 126 (Tex. Crim. App. 1942); Ex parte Mann, 46 S.W. 828 (Tex. Crim. App. 1898). See also Attorney General Opinion JM-443 (1986). Cf. United States v. Palmer, 809 F.2d 1504 (11th Cir. 1987) (holding imposition of costs as punishment to be constitutional). A law allowing different costs to be assessed in different counties for the same penal offense would have the effect of allowing the penalty for state-defined crimes to vary from county to county and would violate both 'due process' and 'equal protection' constitutional rights. U.S. Const., 5th Amend., 14th Amend.; Tex. Const., art. I §§ 3, 19; Ex parte Carson, supra. See Memet v. State, 642 S.W.2d 518 (Tex. App. - Houston [14th Dist.] 1982, pet. ref'd). See also Ex parte Ferguson, 132 S.W.2d 408 (Tex. Crim. App. 1939); Ex parte Sizemore, 8 S.W.2d 134 (Tex. Crim. App. 1928). (Emphasis added.)

Id. at 3. Assessment of a minimum $50 fine in every Class C misdemeanor hot check case in order to defray the cost of an additional employee would result in the penalty for a state defined crime to be different in Jim Wells County than it is in other counties and would violate both "due process" and "equal protection" constitutional rights.

SUMMARY

A county commissioners court may not authorize a justice of the peace to retain a portion of assessed fines for the purposes of funding an additional employee.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General

Footnote 1: The United States Supreme Court in Tate v. Short, 401 U.S. 395 (1971) held that a defendant may not be imprisoned because he is too poor to pay his fine. See Attorney General Opinion JM-977 (1988).