Can a Virginia circuit court clerk charge a returned check fee when the check was for a civil case filing or related civil cost?

Plain-English summary

A Virginia circuit court clerk asked whether his office could charge a returned check fee when a litigant's check for a civil case bounced. The AG concluded that he could not.

Three statutes were in play. Section 2.2-614.1 gave public bodies, generally, the ability to add a penalty when a check came back unpaid, but only "subject to" § 19.2-353.3. Section 17.1-275 listed circuit clerk fees and allowed a returned check fee, but only "in accordance with" § 19.2-353.3. And § 19.2-353.3 itself was limited by its own text to "fees, fines, restitution, forfeiture, penalties and costs collected for offenses tried" in a circuit or district court. That meant criminal and traffic, not civil.

Because both general statutes cross-referenced the criminal-side statute, and because the criminal-side statute was textually limited to offenses, the AG read the package together to confine the clerk's returned check fee authority to criminal cases. There was no equivalent provision anywhere in Titles 8.01, 16.1, or 17.1 for civil cases. The specific (criminal) controls over the general (any public body charge), and the absence of any civil-side analogue meant no authority.

Currency note

This opinion was issued in 2012. 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.

Common questions

Did this opinion address district court clerks?
No, only circuit court clerks. Section 19.2-353.3 also covers district courts, but the opinion's holding rested on the absence of any civil-side analogue and is limited to the question that was asked.

Could the underlying party still be held liable for a bounced check?
Yes. The opinion did not erase the underlying obligation. Section 2.2-614.1 makes clear that when a payment comes back unpaid, the amount is charged back to the person who tendered it as if no payment had ever been made. The opinion was strictly about adding the per-check penalty fee.

Was there any other remedy if a civil litigant's check bounced?
The opinion left that question to other law, which could include civil collection, contempt for non-payment of court costs, or the bank's own returned-item charges. The opinion only said the clerk couldn't add the statutory returned check fee in a civil case.

Why did this matter?
Circuit clerks process thousands of civil filings. If a clerk had been collecting a $20 or 10% returned check fee under § 2.2-614.1 on civil filings, those collections lacked statutory authority and would need to be refunded or stopped going forward.

Background and statutory framework

The opinion involved three Virginia statutes that worked together:

• Section 2.2-614.1 lets any "public body" responsible for revenue collection accept checks and credit cards. If the check is returned unpaid, a $35-or-costs penalty is added on top, "subject to § 19.2-353.3."

• Section 17.1-275(A)(28) lists the circuit court clerk's fees, including, for any returned check, $20 or 10 percent of the amount, "in accordance with § 19.2-353.3."

• Section 19.2-353.3 itself authorizes the same returned check fee but limits its reach to "all fees, fines, restitution, forfeiture, penalties and costs collected for offenses tried" in a district or circuit court.

The AG applied two interpretive canons. First, that statutes addressing the same subject matter are read together to give effect to legislative intent. Second, that a specific statute controls over a general one. Both cross-references in §§ 2.2-614.1 and 17.1-275 pointed back at § 19.2-353.3, which is limited to offenses. The general civil titles, 8.01, 16.1, and 17.1, contain no parallel grant of authority for civil cases.

Citations

• Va. Code § 2.2-505 (Attorney General opinions)
• Va. Code § 2.2-614.1 (public body returned check penalty)
• Va. Code § 17.1-275 (clerk's fees)
• Va. Code § 19.2-353.3 (returned check fee for offenses)
• Va. Code § 58.1-12 (related penalty exception)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2012/12-028_Wingfield.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

June 8, 2012

The Honorable Eugene C. Wingfield
Clerk of Court, Lynchburg Circuit Court
900 Court Street
Post Office Box 4
Lynchburg, Virginia 24505

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Mr. Wingfield:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented
You inquire whether the clerk of a circuit court can assess a returned check fee in civil cases.

Response
It is my opinion that the clerk cannot collect a returned check fee in a civil case.

Applicable Law and Discussion
Three sections of the Code of Virginia are applicable to your inquiry. First, § 2.2-614.1 provides, in pertinent part:

A. Subject to § 19.2-353.3, any public body that is responsible for revenue collection, including, but not limited to, taxes, interest, penalties, fees, fines or other charges, may accept payment of any amount due by any commercially acceptable means, including, but not limited to, checks, credit cards, debit cards, and electronic funds transfers.

C. If any check or other means of payment tendered to a public body in the course of its duties is not paid by the financial institution on which it is drawn, ... and the check or other means of payment is returned to the public body unpaid, the amount thereof shall be charged to the person on whose account it was received, and his liability and that of his sureties, shall be as if he had never offered any such payment. A penalty of $35 or the amount of any costs, whichever is greater, shall be added to such amount. This penalty shall be in addition to any other penalty provided by law, except the penalty imposed by § 58.1-12 shall not apply.

Second, § 17.1-275 sets forth which fees shall be collected by circuit court clerks. It provides, in relevant part:

A. A clerk of a circuit court shall, for services performed by virtue of his office, charge the following fees:

28. For the return of any check unpaid by the financial institution on which it was drawn or notice is received from the credit card issuer that payment will not be made for any reason, the clerk shall collect, if allowed by the court, a fee of $20 or 10 percent of the amount to be paid, whichever is greater, in accordance with § 19.2-353.3.

This statute contains no other reference to fees for returned checks.

Lastly, § 19.2-353.3, which both § 2.2-614.1 and § 17.1-275 reference, provides that:

[P]ersonal checks and credit cards shall be accepted in lieu of money to collect and secure all fees, fines, restitution, forfeiture, penalties and costs collected for offenses tried in a district court, including motor vehicle violations, committed against the Commonwealth or against any county, city or town. . . . [P]ersonal checks shall be accepted in lieu of money to collect and secure all fees, fines, restitution, forfeiture, penalties and costs collected for offenses tried in a circuit court, including motor vehicle violations, committed against the Commonwealth or against any county, city or town. . . . If a check is returned unpaid by the financial institution on which it is drawn or notice is received from the credit card issuer that payment will not be made, for any reason, the fees, fine, restitution, forfeiture, penalty or costs shall be treated as unpaid, and the court may pursue all available remedies to obtain payment. The clerk of the court to whom the dishonored check or credit card was tendered may impose a fee of twenty dollars or ten percent of the value of the payment, whichever is greater, in addition to the fine and costs already imposed.

There is no equivalent provision in Titles 8.01, 16.1 or 17.1, which govern, generally, civil procedure, courts not of record and circuit courts, respectively.

Statutes are to be construed according to their plain language, and those dealing with the same subject matter should be construed together to achieve a harmonious result, resolving conflicts to give effect to legislative intent. The phrases "subject to § 19.2-353.3" and "in accordance with § 19.2-353.3" as found in §§ 2.2-614.1 and 17.1-275, respectively, evince an intent by the General Assembly that the collection of fees for returned checks by clerks of circuit court is to be governed by § 19.2-353.3, rather than by the more generally applicable fee provisions. Moreover, in instances where it is not clear which of a number of statutes is applicable, or when statutes provide different procedures on the same subject matter, the more specific prevails over the more general. By its terms, § 19.2-353.3 is limited to the collection of fees by the clerk for "offenses ... committed against the Commonwealth or against any county, city or town . . . ." I therefore conclude that there is no authority for a clerk of a circuit court to collect a returned check fee in a civil case.

Conclusion
Accordingly, it is my opinion that in a civil case, after a check received in the course of the clerk's duties is returned, the clerk of a circuit court cannot assess a fee related to the returned check.

With kindest regards, I am
Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General