Does criminal restitution collected by a Texas county clerk have to go into the county treasury?

Plain-English summary

Lucinda Vickers, the Atascosa County Attorney, asked the Attorney General how her county should handle restitution money. When the Atascosa County Court at Law sentences someone, the defendant pays the county clerk fines, court costs, and, when ordered, restitution to a crime victim. The county had been depositing all of it, including the restitution, into the fines-and-fees account in the county treasury, then cutting checks to victims from there. Vickers wanted to know whether the law actually required restitution to go into the county treasury, or whether that practice was off.

The question turned on one phrase. Section 113.021 of the Local Government Code requires money "belonging to a county" to be deposited with the county treasurer. So the issue was whether court-ordered restitution "belongs to the county."

The AG said it does not. The restitution statute, article 42.037 of the Code of Criminal Procedure, lets a court order a defendant to make restitution to the victim, on top of any fine, and directs that the payment go "to the victim," either directly or through a person or agency that accepts and forwards it. When a court orders restitution paid to the county clerk, the clerk's job is to accept and forward the payment to the victim. The AG noted that restitution is a crime victim's statutory right, meant to compensate the victim and make the offender address the harm caused, and that the Court of Criminal Appeals has described the Legislature's intent the same way. Because the money is always meant for the victim and never for the county's use, the AG concluded a court would likely find that restitution collected by a county clerk under article 42.037 is not money "belonging to the county" and therefore is not required to be deposited with the county treasurer or in the county treasury under section 113.021. The AG drew support from a prior opinion reaching the same result for bad-check restitution passed through a court, and from a provision saying a county check for restitution does not need the county auditor's countersignature that normally validates a county expenditure.

Currency note

This opinion was issued in 2015. 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 mentioned here.

What the opinion meant for those who asked

County clerks collecting court payments (as the opinion described it): The opinion described a clerk who receives court-ordered restitution as accepting and forwarding it to the victim, not as collecting county money. It treated restitution differently from fines and court costs.

County treasurers and auditors (as the opinion described it): The opinion described restitution as not required to be deposited with the county treasurer or in the county treasury under section 113.021, and noted that a county check for restitution does not need the auditor's countersignature that normally validates a county expenditure.

Crime victims owed restitution (as the opinion described it): The opinion described restitution as the victim's money and a statutory right of the victim, meant to compensate for the harm caused, with the clerk acting only as a conduit.

County attorneys reviewing local practice (as the opinion described it): The opinion answered the legal characterization question, that restitution is not county funds, but, as an attorney general opinion, did not order any particular bookkeeping change. It described what a court would likely conclude about whether section 113.021 applies.

Common questions

Does court-ordered restitution have to go into the county treasury in Texas?
The AG said a court would likely conclude it does not. Restitution collected by a county clerk under article 42.037 of the Code of Criminal Procedure is not money "belonging to the county," so section 113.021's deposit requirement does not apply to it.

Why isn't restitution treated like fines and court costs?
The AG explained that fines and many court costs are collected for the county's use, but restitution is the victim's money. The restitution statute directs payment "to the victim," and the clerk's role is to accept and forward it, so it is never meant for the county.

What does the county clerk actually do with a restitution payment?
Under the statute, when a court orders restitution paid through the clerk, the clerk accepts the payment and forwards it to the victim. The AG described this as a pass-through, not a deposit of county funds.

Does a restitution check need the county auditor's countersignature?
The AG pointed to a provision indicating it does not. A county check paid for restitution does not require the auditor's countersignature that normally validates a payment as a proper, budgeted county expenditure, which the AG read as further evidence that restitution is not county money.

Was Atascosa County doing it wrong by using its treasury account?
The opinion did not impose a penalty or label the practice unlawful. It answered the underlying legal question: restitution is not money belonging to the county, so it is not required to be deposited with the county treasurer or in the treasury under section 113.021.

Background and statutory framework

Article 42.037 of the Code of Criminal Procedure lets a court order a defendant to make restitution to a victim of the offense (or, in some cases, to a crime victim compensation fund), in addition to any fine, and requires the order to direct restitution to the victim, either directly, through a person or agency that accepts and forwards it, or through a community supervision and corrections department for transfer to the victim (Tex. Code Crim. Proc. Ann. art. 42.037(a), (g)(3), (g)(4)). When restitution is ordered paid to a county clerk, the clerk accepts and forwards it to the victim.

Chapter 113 of the Local Government Code governs county money and requires fees, commissions, funds, and other money "belonging to a county" to be deposited with the county treasurer (Tex. Loc. Gov't Code Ann. § 113.021(a); § 113.003). The AG noted that various statutes direct the county clerk to deposit certain money into the treasury, but none encompass restitution (Tex. Gov't Code Ann. § 25.0008; § 51.402(c); Tex. Loc. Gov't Code Ann. § 133.052(c)). Whether particular funds belong to the county depends on the nature of the funds, and the AG had previously concluded that bad-check restitution passed through a court does not belong to the county but to the holder of the dishonored check (Tex. Att'y Gen. Op. Nos. DM-396 (1996), JC-0031 (1999)).

The AG explained that restitution is a crime victim's statutory right, meant to restore the victim and make the offender remedy the harm, and that the Court of Criminal Appeals has described the Legislature's intent as compensating the victim while punishing the offender (Hanna v. State, 426 S.W.3d 87, 91 (Tex. Crim. App. 2014)). Because article 42.037 directs restitution "to the victim," the AG reasoned the money is never meant for the county's use and concluded a court would likely find it is not money "belonging to the county" under section 113.021. The AG added that a county check for restitution does not require the county auditor's countersignature that normally validates a county expenditure, reinforcing that restitution is collected on behalf of an individual rather than for the county (Tex. Loc. Gov't Code Ann. § 113.043; § 112.006(a)).

Citations

Statutory provisions:

• Tex. Code Crim. Proc. Ann. art. 42.037(a), (g)(3), (g)(4) (restitution to crime victims; how it is paid)
• Tex. Loc. Gov't Code Ann. § 113.021(a) (deposit of county money with the treasurer)
• Tex. Loc. Gov't Code Ann. § 113.003 (county treasurer receives money belonging to the county)
• Tex. Gov't Code Ann. § 25.0008; § 51.402(c) (clerk fees and fines for the use of the county)
• Tex. Loc. Gov't Code Ann. § 133.052(c) (criminal and civil fees)
• Tex. Loc. Gov't Code Ann. § 113.043 (restitution checks; auditor countersignature)
• Tex. Loc. Gov't Code Ann. § 112.006(a) (county auditor oversight of county money)

Cases:

• Hanna v. State, 426 S.W.3d 87, 91 (Tex. Crim. App. 2014)

Prior Attorney General opinions referenced:

• Tex. Att'y Gen. Op. Nos. DM-396 (1996), JC-0031 (1999)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0019
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0019.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 11, 2015

The Honorable Lucinda A. Vickers Opinion No. KP-0019
Atascosa County Attorney

1 Courthouse Circle Drive #3-B Re: Deposit of restitution funds ordered in a

Jourdanton, Texas 78026 criminal judgment by a statutory county court
(RQ-1231-GA)

Dear Ms. Vickers:

You ask whether restitution funds ordered in a criminal judgment by a statutory county court and collected by the county clerk are funds "belonging to the county" such that they are required to be deposited with the county treasurer or in the county treasury pursuant to section 113.021 of the Local Government Code. [1] You tell us that "individuals ordered ... to make payments for criminal offenses" by the Atascosa County Court at Law make such payments to the county clerk, which "include fines, court costs, and restitution, if applicable." Request Letter at 1. The current practice, you explain, is that "[t]he county clerk accepts the payments, including the restitution, and deposits the payment[s] into the fines and fees account in the county treasury. The portion of the payment to be remitted as restitution and the name of the victim are documented by the county clerk." Id. The county clerk submits monthly requests for approval and payment to the county auditor, who then issues individual checks to victims entitled to receive restitution. Id. You question whether this practice is appropriate in light of section 113.021. Id. at 1, 4.

We begin with the statute authorizing restitution payments. A court "may order the defendant to make restitution to any victim of the offense" or, in certain instances, to a crime victim compensation fund established by statute. TEX. CODE CRIM. PROC. ANN. art. 42.037(a) (West Supp. 2014). Such restitution is "[i]n addition to any fine authorized by law." Id. The court's order

must require the defendant to: (i) make restitution directly to the person or agency that will accept and forward restitution payments to the victim ... ; (ii) make restitution directly to the victim ... ; or (iii) deliver the amount or property due as restitution to a community supervision and corrections department for transfer to the victim or person.

Id. art. 42.037(g)(4). Unless otherwise provided by the court, "the defendant shall make restitution immediately." Id. art. 42.037(g)(3). Thus, under the plain language of the statute, if a court order provides that restitution shall be paid to a county clerk, the clerk is to "accept and forward restitution payments to the victim." Id. art. 42.037(g)(4).

Under chapter 113 of the Local Government Code, which governs the management of county money, all "fees, commissions, funds, and other money belonging to a county shall be deposited with the county treasurer by the person who collects the money." TEX. LOC. GOV'T CODE ANN. § 113.021(a) (West Supp. 2014) (emphasis added); see also id. § 113.003 (West 2008) (directing the county treasurer to receive "all money belonging to the county from whatever source it may be derived" (emphasis added)). There are various other statutes directing the county clerk to collect and deposit certain moneys into the county treasury, but none of the statutes encompass restitution funds. See, e.g., TEX. GOV'T CODE ANN. §§ 25.0008 (West 2004) (referring expressly to "the same fees as are prescribed by law relating to county judge's fees"), 51.402(c) (West 2013) (describing fines and jury fees that are "for the use of the county"); TEX. LOC. GOV'T CODE ANN. § 133.052(c) (West 2008) (referring to statutorily-defined criminal and civil fees). This office has previously concluded, however, that restitution on a bad check made "through" a court under a specific Penal Code provision is not "money belonging to a county" for purposes of section 113.021. Tex. Att'y Gen. Op. No. DM-396 (1996) at 4 (noting that restitution with such pass through handling "clearly does not belong to the county; rather, it belongs to the holder of the dishonored check").

Whether any particular funds "belong to the county" depends on the nature of the particular funds. Tex. Att'y Gen. Op. No. JC-0031 (1999) at 2. Restitution is a statutory right of a crime victim, serving in part to "restor[e] the victim to the status quo and forc[e] an offender to address and remedy the specific harm that he has caused." Hanna v. State, 426 S.W.3d 87, 91 (Tex. Crim. App. 2014). The Court of Criminal Appeals has acknowledged that, in enacting the restitution statute at issue, "[t]he legislature intended restitution to adequately compensate the victim of the offense in the course of punishing the criminal offender." Id. (quotation marks omitted). Consistent with this purpose, the specific language of article 42.037 of the Code of Criminal Procedure directs that restitution payments are to be made "to the victim," either directly or by way of transfer, suggesting that the money is never meant for use by the county. [2] TEX. CODE CRIM. PROC. ANN. art. 42.037(a), (g)(4) (West Supp. 2014). Therefore, a court would likely conclude that restitution funds ordered in a criminal judgment by a statutory county court and collected by the county clerk pursuant to article 42.037 of the Code of Criminal Procedure are not funds "belonging to the county" required to be deposited with the county treasurer or in the county treasury pursuant to section 113.021 of the Local Government Code.

SUMMARY

A court would likely conclude that restitution funds ordered in a criminal judgment by a statutory county court and collected by the county clerk pursuant to article 42.037 of the Code of Criminal Procedure are not funds "belonging to the county," and thus they are not required to be deposited with the county treasurer or in the county treasury pursuant to section 113.021 of the Local Government Code.

Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Lucinda A. Vickers, Atascosa Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1, 4 (Nov. 10, 2014), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] This view is bolstered by the fact that a check paid by the county treasurer for restitution does not have to be countersigned by the county auditor who normally countersigns a disbursement "to validate it as a proper and budgeted item of expenditure." TEX. LOC. GOV'T CODE ANN. § 113.043 (West Supp. 2014) (referring to restitution as money "collected on behalf of an individual as authorized by law" (emphasis added)); see also id. § 112.006(a) (giving the county auditor general oversight of books and records of officers who collect money "that is intended for the use of the county or that belongs to the county").