If a Virginia defendant defaults on court fines and their case went to collections, can they get back on a payment plan without facing a show cause?

Plain-English summary

Virginia Beach's general district court chief judge and Commonwealth's Attorney sent the AG a procedural question about defendants whose fines, costs, or restitution have gone into collections after default. Two questions: (1) can the court enter a new payment plan at the defendant's request, without issuing process like a show cause or capias? (2) Can the Commonwealth's Attorney's collection agent offer its own payment plan?

Question 1. Yes. The Code requires that when a defendant cannot pay within 30 days, the court must provide a payment plan (§ 19.2-354). If the defendant defaults and the account goes 90 days delinquent, the case is referred to the Commonwealth's Attorney for collection (§ 19.2-349). The court may issue a show cause or capias under § 19.2-358 in some cases, but it does not have to before considering a new payment plan. Section 19.2-354.1(D) says: "A court shall consider a request by a defendant who has defaulted on a payment agreement to enter into a subsequent payment agreement." The plain language requires consideration, and nothing requires a show cause first. Same reasoning extends to restitution payable on a separate schedule under § 19.2-305.1, reading the statutes together (and citing American Tobacco Co. v. Patterson, 456 U.S. 63 (1982)) to avoid an "untenable distinction."

Question 2. Yes. Nothing in the Code or the Master Guidelines Governing Collection bars the Commonwealth's Attorney's collection agent from extending its own payment plans, as long as the court retains its § 19.2-354.1 authority to grant plans on petition. Where the collection agent is the Virginia Department of Taxation, § 58.1-1817 gives the Department express authority to extend payment plans.

Currency note

This opinion was issued in 2021. 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.

Background and statutory framework

When a Virginia defendant is sentenced to pay fines, costs, or restitution, the Code prescribes a layered framework:

• § 19.2-354. If the defendant is unable to pay within 30 days, the court must provide a payment plan.
• § 19.2-349. If the defendant defaults and the account is more than 90 days delinquent, the court refers the account to the Commonwealth's Attorney for collection. Collection can also go to the Department of Taxation as the Commonwealth's Attorney's agent.
• § 19.2-358. Upon default, the court may issue a show cause for failure to pay, or in narrower circumstances a capias (where the defendant had been ordered to appear on a date certain in the event of nonpayment and failed to appear).
• § 19.2-354.1. Authorizes deferred, modified-deferred, and installment payment agreements. Subsection (C) prohibits denying a defendant the opportunity to enter into a payment agreement "solely because the fines and costs have been referred for collections pursuant to § 19.2-349." Subsection (D) makes consideration of a subsequent payment agreement after default mandatory and sets the maximum down-payment as 10% (if total owed ≤ $500) or 5% or $50 (whichever is greater, if owed > $500).

The key textual move in the opinion is reading § 19.2-354.1(D) and (C) together: courts must consider a request, they must not deny the opportunity solely because the case is in collections, and the statute does not require issuing a show cause or capias first. The court can simply consider and grant the new plan, which by its terms removes the case from collections.

For restitution scheduled separately under § 19.2-305.1, the opinion reads § 19.2-354.1 and § 19.2-305.1 together to permit the same treatment, citing the principle that statutes should be interpreted to avoid "untenable distinctions and unreasonable results" (American Tobacco Co., 456 U.S. at 71).

On the second question, the AG notes that the Master Guidelines Governing Collection of Unpaid Delinquent Court-Ordered Fines and Costs (under § 19.2-349) do not bar the Commonwealth's Attorney's collection agent from offering its own plans. The court's § 19.2-354.1 authority is preserved alongside. Where the Department of Taxation is the agent, § 58.1-1817 explicitly authorizes Tax Department payment plans.

Common questions

Q: I'm a defendant whose fines went to collections. Can I get back on a payment plan without going to jail?
A: Per this 2021 opinion, yes. You can ask the court to enter a new payment plan under § 19.2-354.1(D), and the court must consider your request without first issuing a show cause or capias. You will likely need to make a small down payment (5%, 10%, or $50 minimum, depending on the amount you owe). This pulls the case out of collections.

Q: What if my unpaid balance includes restitution to a victim?
A: The opinion confirms the same path is available for restitution scheduled separately under § 19.2-305.1. The court can grant a new payment plan that covers fines, costs, and restitution.

Q: Does the court have to grant the new plan?
A: The statute requires the court to "consider" a request and to "consider any change in the defendant's circumstances." It is not a guaranteed approval, but the consideration is mandatory. Refusal is reviewable under standard abuse-of-discretion standards.

Q: I'm a Commonwealth's Attorney collection agent. Can I offer payment plans myself?
A: Yes, per this opinion. Your authority operates alongside the court's, and your plans must not impair the court's ability to grant a plan on the defendant's petition. The Department of Taxation has even more explicit authority under § 58.1-1817.

Q: What's the maximum down payment a court can require?
A: For fines and costs of $500 or less, 10% of the total. For more than $500, 5% of the total or $50, whichever is greater.

Q: I've heard about license suspensions for unpaid fines. Does this opinion address that?
A: Not directly. This opinion is about payment plans and the show-cause/capias question. License-suspension reforms moved through other legislation in this period. Check current law before acting on suspension-related questions.

Citations and references

Statutes:

• Va. Code § 19.2-305.1 (Restitution)
• Va. Code § 19.2-349 (Referral to collections)
• Va. Code § 19.2-354 (Payment plans)
• Va. Code § 19.2-354.1 (Deferred and installment payment agreements)
• Va. Code § 19.2-358 (Show cause and capias)
• Va. Code § 58.1-1817 (Tax Department payment plans)

Cases:

• Haley v. Haley, 272 Va. 703, 636 S.E.2d 400 (2006) (Virginia Supreme Court; plain-language rule)
• American Tobacco Co. v. Patterson, 456 U.S. 63 (1982) (U.S. Supreme Court; avoiding untenable distinctions)

Administrative materials:

• Master Guidelines Governing Collection of Unpaid Delinquent Court-Ordered Fines and Costs (July 1, 2020)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2021/20-041-20-042-Lahne-Stolle.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

January 29, 2021

The Honorable Daniel R. Lahne
Chief Judge, Virginia Beach General District Court

The Honorable Colin D. Stolle
Virginia Beach Commonwealth's Attorney

Dear Gentlemen:

I am responding to your requests for an official opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You have submitted separate requests for an opinion from this Office involving situations where a defendant has defaulted on an agreement with the general district court for the payment of fines, costs, and/or restitution and the person's account has gone into collection.

In particular, you ask:

• May the general district court enter into a new payment plan agreement with the defendant (and therefore take the case out of collections) at the request of the defendant and without issuing process such as a show cause or capias?
• Does the collection agent of the Commonwealth's Attorney have the authority to enter into payment plans with the defendant?

Applicable Law and Discussion

1. The general district court may enter into a new payment plan agreement with the defendant at the request of the defendant without issuing process such as a show cause or capias.

The Code of Virginia provides that when a defendant is convicted of a crime or traffic infraction and is "unable to make payment of the fines, costs, or restitution within 30 days," the court must provide the person with a payment plan.[1] If the person fails to comply with the payment plan and the account becomes more than 90 days delinquent, § 19.2-349 provides that the court shall refer the account to the Commonwealth's Attorney for collection. Independent of this collections process, the Code of Virginia provides that, upon a defendant's default, the court may issue a show cause, or in some cases a capias,[2] for failure to pay under § 19.2-358.

Section 19.2-354.1(D) of the Code of Virginia, however, provides that a court also may take certain actions at the request of a defendant who has defaulted on an existing payment agreement. Specifically, it provides that

[a] court shall consider a request by a defendant who has defaulted on a payment agreement to enter into a subsequent payment agreement. In determining whether to approve the request for a subsequent payment agreement, the court shall consider any change in the defendant's circumstances. A court shall require a down payment to enter into a subsequent payment agreement, provided that the down payment required to enter into a subsequent payment agreement shall not exceed (i) if the fines and costs owed are $500 or less, 10 percent of such amount or (ii) if the fines and costs owed are more than $500, five percent of such amount or $50, whichever is greater.[3]

In my opinion, the language of this provision is clear and unambiguous.[4] Nothing in § 19.2-354.1(D) prohibits the court from considering a defendant's request if the account has already been referred to collections; to the contrary, the plain language of the statute states that the court "shall consider" all such requests.[5] Nor does the statute require that a show cause or capias for nonpayment be issued before such a request is considered. Stated differently, the court may consider such a request outside the context of a show cause or capias issued pursuant to § 19.2-358.

Relevant to Mr. Stolle's request, this same conclusion applies to situations where restitution was made payable on a different schedule than fines and costs pursuant to a restitution order entered by the court under § 19.2-305.1. Although § 19.2-305.1 of the Code does not expressly reference the authority of a court under § 19.2-354.1 to grant a new payment plan, in my opinion the two statutes should be read together to permit such action. The Supreme Court of the United States has emphasized that "[s]tatutes should be interpreted to avoid untenable distinctions and unreasonable results whenever possible."[6] Here, a contrary interpretation would mean that the General Assembly intended to treat similarly-situated individuals differently based solely on the differences in their payment schedules. It would also frustrate the intent of the General Assembly, reflected in the statutory scheme, to facilitate the payment of restitution.

Accordingly, it is my opinion that a general district court may enter into a new payment plan agreement with a defendant (and therefore take the case out of collections) at the request of the defendant and without issuing process such as a show cause or capias.

2. The Commonwealth's Attorney's collection agent may extend its own payment plans to a defendant.

In my opinion, nothing in the Code of Virginia or the Master Guidelines Governing Collection[7] prohibit a Commonwealth's Attorney's collection agent from extending its own payment plans to a defendant, so long as the court retains its authority to grant payment plans upon petition of the defendant under § 19.2-354.1. Additionally, where the collection agent is the Virginia Department of Taxation, the Department has explicit authority to extend payment plans to a defendant under § 58.1-1817.

Conclusion

It is my opinion that a general district court may enter into a new payment plan agreement with a defendant (and therefore take the case out of collections) at the request of the defendant and without issuing process such as a show cause or capias. It is further my opinion that nothing in the Code of Virginia or the Master Guidelines for Collection prohibits a Commonwealth's Attorney's collection agent from extending its own payment plans to a defendant, so long as the court retains its authority to grant payment plans upon petition of the defendant under § 19.2-354.1. Where the collection agent is the Virginia Department of Taxation, the agent has explicit authority to extend payment plans to a defendant under § 58.1-1817.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General

1. Va. Code Ann. § 19.2-354. This and all other citations to the Code of Virginia herein are from the electronic version of the Code on LexisNexis and are current through the 2020 Special Session I of the General Assembly.

2. A capias may only be issued if the court had previously ordered the defendant "to appear on a date certain in the event of nonpayment ... and the defendant failed to appear." Va. Code Ann. § 19.2-358(A).

3. Emphasis added.

4. "When the statutory language is clear and unambiguous, we apply the statute according to its plain language." Haley v. Haley, 272 Va. 703, 707, 636 S.E.2d 400, 402 (2006) (internal quotation marks omitted; citation omitted).

5. Accord Va. Code Ann. § 19.2-354.1(C) (stating that "[t]he court shall not deny a defendant the opportunity to enter into a deferred, modified deferred, or installment payment agreement solely ... because the fines and costs have been referred for collections pursuant to § 19.2-349").

6. American Tobacco Co. v. Patterson, 456 U.S. 63, 71 (1982).

7. See Master Guidelines Governing Collection of Unpaid Delinquent Court-Ordered Fines and Costs Pursuant to Virginia Code § 19.2-349 (July 1, 2020), available at https://www.scb.virginia.gov/docs/guidelinesfinesandfees.pdf.