Can a county's contract collection attorney go after unpaid restitution owed to a crime victim?

Plain-English summary

Cooke County contracts with a private attorney for collection services under article 103.0031 of the Code of Criminal Procedure. The county auditor ran into a wrinkle. When the county tries to collect court-ordered restitution for a crime victim and the defendant does not pay, can the county hand that delinquent restitution to its contract collection attorney? Her concern came from an earlier AG opinion, KP-0019, which had concluded that criminal restitution funds do not "belong" to the county and so are not required to be deposited with the county treasurer. If the money is not the county's, she asked, can the county still delegate collecting it?

The AG said yes. Article 103.0031 authorizes a commissioners court to contract with a private attorney or vendor to collect a number of criminal fines and fees, and the list of authorized items expressly includes restitution ordered paid by a court serving the county. When a court orders criminal restitution under article 42.037, it directs the money to the victim (or to a crime victims' compensation fund), either directly or through a person or agency that forwards the payments. So the Legislature already understood that a county collecting restitution is handling money it does not own. The AG presumed the Legislature knew that scheme, and chose its words with care, when it listed restitution as a collectible item in article 103.0031. The statute adds no other condition tied to who owns the funds; it only requires that a court serving the county ordered the restitution. Given that, the county's non-ownership of the money does not block it from delegating collection to its contract attorney.

Currency note

This opinion was issued in 2017. 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.

What the opinion meant for those who asked

The county auditor who asked (as the opinion described it): The opinion answered that the county's lack of ownership of the restitution funds does not stop it from referring delinquent victim restitution to the private collection attorney, because article 103.0031 lists restitution ordered by a court serving the county as a collectible item.

Commissioners courts and counties (as the opinion described them): The opinion described the commissioners court as the body authorized to contract for collection services under article 103.0031 and to refer delinquent restitution ordered by a court serving the county to that contract attorney.

Contract collection attorneys and vendors (as the opinion described them): The opinion treated a private attorney under an article 103.0031 contract as authorized to collect delinquent restitution owed to a crime victim, so long as a court serving the county ordered it.

Crime victims (as the opinion described them): The opinion described restitution as money directed to the victim, either directly or through an entity that forwards the payments, with the county able to use its contract attorney to pursue it when the defendant is delinquent.

Common questions

Can a county use its contract collection attorney to collect restitution owed to a crime victim?
Under this opinion, yes. The AG concluded that article 103.0031 lists restitution ordered paid by a court serving the county among the items a contract attorney may collect.

Does it matter that the restitution money is the victim's, not the county's?
The opinion said it does not. It noted that the Legislature already recognized a county collecting restitution does not own the funds, yet still included restitution as a collectible item in article 103.0031.

What is the one condition the statute attaches?
That a court serving the county ordered the restitution. The opinion described that as the only prerequisite article 103.0031 imposes regarding restitution.

Who is the restitution actually paid to?
Under article 42.037, the defendant pays the victim, either directly or through a person or agency that accepts and forwards the payments, or in some instances a crime victims' compensation fund.

Was this the same as saying restitution belongs to the county?
No. The opinion reaffirmed the earlier conclusion in KP-0019 that restitution funds do not belong to the county, and held only that the county may still delegate their collection.

Background and statutory framework

Article 103.0031(a) of the Code of Criminal Procedure authorizes a commissioners court to contract with a private attorney or a public or private vendor for the provision of collection services for a number of criminal fines and fees, and that authority includes collection of restitution ordered paid by a court serving the county (Tex. Code Crim. Proc. art. 103.0031(a), (a)(1)(A)). A court orders a defendant to make restitution under article 42.037(a), directing payment to the victim or, in some instances, to a crime victims' compensation fund; if the defendant does not pay directly, payment is made to the person or agency that accepts and forwards restitution (Tex. Code Crim. Proc. art. 42.037(g)(4)).

The auditor's question arose from KP-0019, which concluded that restitution funds ordered in a criminal judgment do not belong to a county and so are not required to be deposited with the county treasurer under section 113.021(a) of the Local Government Code (Tex. Att'y Gen. Op. No. KP-0019 (2015)). Reading the statutes together, the AG applied the rule that courts interpret a statute to effectuate legislative intent from the plain meaning of the text as a whole (Janvey v. Golf Channel, Inc., 487 S.W.3d 560, 572 (Tex. 2016)), presuming the Legislature acts with knowledge of existing law (Wichita Cty. v. Hart, 917 S.W.2d 779, 782 (Tex. 1996)) and chooses its words with care (Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n, 518 S.W.3d 318, 325-26 (Tex. 2017)). Because article 103.0031 imposes no prerequisite other than that a court serving the county ordered the restitution, the AG concluded a contract attorney may collect delinquent restitution owed to a crime victim.

Citations

Statutes:

• Tex. Code Crim. Proc. arts. 103.0031, 103.0031(a), 103.0031(a)(1), 103.0031(a)(1)(A), 42.037(a), 42.037(g)(4)
• Tex. Loc. Gov't Code § 113.021(a)
• Tex. Att'y Gen. Op. No. KP-0019 (2015)

Cases:

• Janvey v. Golf Channel, Inc., 487 S.W.3d 560 (Tex. 2016)
• Wichita Cty. v. Hart, 917 S.W.2d 779 (Tex. 1996)
• Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n, 518 S.W.3d 318 (Tex. 2017)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0173
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0173.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

November 13, 2017

Ms. Shelly Atteberry Opinion No. KP-0173
Cooke County Auditor
101 South Dixon Street Re: Whether an attorney serving a county
Gainesville, Texas 76240 pursuant to a collection contract under article
103.0031 of the Code of Criminal Procedure
may collect delinquent restitution owed to a
crime victim (RQ-0166-KP)

Dear Ms. Atteberry:

    You tell us that Cooke County (the "County") contracts with a private attorney for collection services under the authority of article 103.0031 of the Code of Criminal Procedure. [1] You ask, when the County "attempts to collect court ordered restitution on behalf of crime victims" and the restitution is not paid, whether the County may turn the case over to the private collection attorney pursuant to article 103.0031. Request Letter at 2. Article 103.0031 authorizes a commissioners court to "enter into a contract with a private attorney or a public or private vendor for the provision of collection services" for a number of criminal fines and fees. TEX. CODE CRIM. PROC. art. 103.0031(a). Relevant here, this authority includes collection of "restitution ordered paid by ... a court serving the county." Id. art. 103.0031(a)(1)(A). However, you question whether the statute permits the collection of "delinquent restitution that while collected by the County is not owed directly to the County." Request Letter at 1. You explain that your question stems from an attorney general opinion concerning the nature of criminal restitution. Id. at 2. In Attorney General Opinion KP-0019, this office concluded that restitution funds ordered in a criminal judgment by a statutory county court do not "belong" to a county, and thus they are not statutorily required to be deposited with the county treasurer or in the county treasury. See Tex. Att'y Gen. Op. No. KP-0019 (2015) at 2 (referring to section 113.021(a) of the Local Government Code, which mandates that 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"). You ask, in essence, whether the County's non-ownership of the crime victim restitution funds impacts the County's ability to delegate its collection to the attorney employed under article 103.0031. See Request Letter at 1-2.

    A court's primary objective when interpreting a statute "is to ascertain and effectuate the Legislature's intent," which a court derives "from the plain meaning of the text construed in light of the statute as a whole." Janvey v. Golf Channel, Inc., 487 S.W.3d 560, 572 (Tex. 2016). Article 103.0031(a)(1)(A) expressly authorizes collection contracts "for ... restitution ordered paid by ... a court serving the county." TEX. CODE CRIM. PROC. art. 103.0031(a)(1)(A). A court ordering a convicted defendant to make restitution does so pursuant to the authority granted in article 42.037(a) of the Code of Criminal Procedure, which provides that the court may order the defendant to make restitution to the "victim of the offense" or, in some instances, to a crime victims' compensation fund. Id. art. 42.037(a). If the defendant does not make restitution "directly" to the victim or the compensation fund, he or she must make it "directly to the person or agency that will accept and forward restitution payments" as appropriate. Id. art. 42.037(g)(4). Thus, in authorizing a court to order criminal restitution, the Legislature recognized that an entity collecting restitution on the victim's or the fund's behalf, such as a county, does not itself own the funds. See Tex. Att'y Gen. Op. No. KP-0019 (2015) at 2 (concluding that "the specific language of article 42.037 ... 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"). We presume the Legislature was aware of this statutory scheme when it included restitution as an authorized item of collection under article 103.0031(a)(1). See Wichita Cty. v. Hart, 917 S.W.2d 779, 782 (Tex. 1996) (noting the rule of statutory construction that the Legislature is presumed to act "with complete knowledge of the existing law and with reference to it"). We also presume, as courts do, that the Legislature "chooses a statute's language with care, including each word chosen for a purpose, while purposefully omitting words not chosen." Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n, 518 S.W.3d 318, 325-26 (Tex. 2017) (quotation marks omitted). Other than specifying the entity that must have ordered payment of restitution, article 103.0031 contains no other prerequisites regarding restitution. Thus, if "a court serving the county" ordered the restitution, a private attorney under contract with the County under article 103.0031 may collect delinquent restitution owed to a crime victim. TEX. CODE CRIM. PROC. art. 103.0031.

                                SUMMARY

                  If a court serving the County orders a defendant to make restitution to a crime victim and payment is delinquent, a commissioners court may refer the matter to a private collections attorney under contract with the County pursuant to article 103.0031(a)(1)(A) of the Code of Criminal Procedure.

                                      Very truly yours,

                                      KEN PAXTON
                                      Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] See Letter from Ms. Shelly Atteberry, Cooke Cty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (June 23, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").