                                ATTORNEY GENERAL OF TEXAS
                                              GREG        ABBOTT




                                                February 11,2004



The Honorable Jeri Yenne                                  Opinion No. GA-01 47
Brazoria County Criminal District Attorney
Brazoria County Courthouse                                Re: Whether, under Code of Criminal Procedure
111 East Locust, Suite 408A                               article 45.041 (b)(l)(C), a justice of the peace may
Angleton, Texas 775 15                                    order a convicted defendant to pay a fine before
                                                          court costs (RQ-0093-GA)

Dear Ms. Yenne:

        You ask whether, under article 42.15(b)(3) of the Code of Criminal Procedure, a justice of
the peace may order a convicted defendant to pay a fine or fines before court costs.’ TEX. CODE
CRIM.PROC.hN.art. 42.15(b)(3)(V emon 1979). If the defendant pays only part of the total due,
you ask whether, in accordance with the long-established costs-first allocation rule, the payments
must be allocated to costs and fees before satisfying the fine. See Request Letter, supra note 1,
at 1.

        Although you frame the issue in terms of the requirements of article 42.15, it is article 45.041
that applies to justice courts. See TEX. CODECRIM.PROC.ANN. art. 45.041 (Vernon Supp. 2004);
Request Letter, supra note 1, at 1. Article 42.15, which applies to courts in general, requires a court
to order a defendant who is fined to “pay the amount of the fine and all costs to the state.” TEX.
CODECRIM.PROC.ANN. art. 42.15(a) (Vernon 1979). The article further authorizes a court to direct
the defendant to pay the fine and costs either in a lump sum or in installments. See id. art. 42.15(b).
Using substantially similar language, article 45.041 (a) requires a justice of the peace to order a
convicted defendant to “pay the amount of the fine and costs to the state.” Id. art. 45.04 1(a) (Vernon
Supp. 2004); cf: id. art. 42.15(a) (Vernon 1979). With respect to the costs and fine, the justice may
require the convicted defendant to pay either a lump sum or in installments:

                  The justice . . . may direct the defendant:

                           (1) to pay:

                                   (A) the entire fine and costs when sentence is
                           pronounced;


         ‘See Letter from Honorable Jeri Yenne, Brazoria County Criminal District Attorney, to Honorable Greg Abbott,
Texas Attorney General, at 1 (Aug. 12,2003) (on file with Opinion Committee) [hereinafter Request Letter].
  The Honorable    Jeri Yenne   - Page 2       (GA-0147)




                                   (B) the entire fine and costs at some later date;
                          or

                                   (C) a specified portion of the fine and costs at
                          designated intervals[ .]

  Id. art. 45.041(b)(l) (‘Vemon Supp. 2004). Because article 45.041(b)(l)(C)           applies specifically   to
  justice courts, we refer to it rather than to article 42.15.

           You ask first whether, under article 45.041 (b)(l)(C), a justice of the peace may bifurcate the
  total amount of money due so that a defendant pays the fines by a specified date and the costs by a
  later date. Request Letter, supra note 1, at 2.

           In this regard, you suggest that the allocation rule developed by this office is inconsistent with
  article 45.04 1. You describe the rule as a “pro-rata rule for fine and court costs,” id. at 2, but we
  believe the rule may be more accurately denominated a costs-first allocation rule. For over sixty
  years, this office has stated that, where a defendant pays only part of the required fines and costs,
  “the money collected should go first to the payment of the costs and the balance, if any, to the
  amount of the fine.” Tex. Att’y Gen. Op. Nos. O-755 (1939) at 2,0-469 (1939) at 2; accord Tex.
  Att’y Gen. Op. Nos. M-1076 (1972) at 3-4; O-4924 (1942) at 10; O-1792 (1940) at 6-7; see also
  Tex. Att’y Gen. Op. No. DM-407 (1996) at 6 (“We have no reason to believe that Attorney General
  Opinion M-l 076 incorrectly states the law.“). If the defendant does not pay even enough to cover
  all of the costs, “the money collected should be pro-rated” among the various costs due, with none
  going toward fines. Tex. Att’y Gen. Op. Nos. O-755 (1939) at 2,0-469 (1939) at 2; accord Tex.
  Att’y Gen. Op. Nos. M-l 076 (1972) at 3-4; O-4924 (1942) at 10; O-l 792 (1940) at 6-7.

           No judicial opinions have discussed the allocation rule. The legislature has not enacted any
  statute that preempts the allocation rule. See Cities of Austin, Dallas, Fort Worth, & Hereford v.
  S. K Bell Tel. Co., 92 S.W.3d 434,445 (Tex. 2002) (stating that a court will construe a statute that
  is subject to a “long-standing administrative construction” that the legislature has not amended since
  the administrative construction was articulated “as the agency did”); Guar. Mut. Life Ins. Co. v.
  Harrison, 358 S.W.2d 404,408 (Tex. Civ. App.-Austin 1962, writ ref d n.r.e.) (stating that a court
  is to give weight to “long standing departmental construction of a statute by the officials charged
  with its enforcement and the opinions of the Attorney General” in construing an ambiguous statute
  unless no such long standing construction exists or the Attorney General’s construction is in error).

           You suggest that article 45.041 (b) may affect the allocation rule’s application.          The
  legislature adopted the substance of article 45.041 (b)(l)(C) (and of article 42.15(b)(3)), permitting
  the use of installment payments, in 1971. See Act of May 26, 1971,62d Leg., R-S., ch. 987, $0 1,
  5,197 1 Tex. Gen. Laws 2990,2990-91. Prior to the 1971 amendments, the law ordered a defendant
  convicted of a fine-only offense who failed to pay costs and fines to be imprisoned, even if the
  defendant’s failure to pay was due to indigency. See Act of May 27,1965,59th Leg., R.S., ch. 722,
  $1, arts. 42.15,45.50,1965   Tex. Gen. Laws 317,502,528; Tatev. Short, 401 U.S. 395,399 (1971).
* In 1971 the United States Supreme Court held this practice unconstitutional.     See Tate, 401 U.S. at
  400. The Supreme Court indicated that a state may provide “alternatives” to imprisonment “to serve
The Honorable   Jeri Yenne - Page 3        (GA-0147)




its concededly valid interest in enforcing payment of fines,” such as a procedure “for paying fines
in installments.” Id. at 399,400 n.5. On remand to the Texas Court of Criminal Appeals, the court
suggested that the legislature amend article 42.15 and the substance of article 45.041 to provide the
requisite alternative means for collecting fines and costs from defendants.       Ex parte Tate, 471
S. W.2d 404,406 (Tex. Crim. App. 197 1). The bill analysis of the 197 1 bill amending these articles
suggests that the amendments were intended to comply with the Supreme Court’s ruling: “It has
been declared unconstitutional for the courts to confine a man to jail because of his inability to pay
a fine. This has made it necessary for the state to revise the punishment provisions under the Code
of Criminal Procedure.” HOUSECOMM.ONGRIM.JURISPRUDENCE,               BILLANALYSIS,Tex. H.B. 887,
62d Leg., R.S. (1971). Thus, the 1971 amendments were not related to a legislative intent to
overrule the costs-first allocation rule.

          In accordance with its plain language, article 45.041 authorizes a justice of the peace to
determine only the form in which a convicted defendant must render monies due: a lump sum or in
installments.    Article 45.041 is not relevant to any authority a court may have to specify how the
county must allocate the monies, when they have been received (either a lump sum or in
installments), and the legislature has not adopted any other statute that preempts the long-standing
costs-first allocation rule. Accordingly, whether a defendant pays a lump sum or in installments
under article 45.041, the monies must be used to satisfy court costs first and fines second.

         You ask second about a situation in which a defendant is ordered to pay in several
installments: “[I]n the event a defendant is able to pay one or more installments but fails to pay the
entire amount . . . , is the last partial payment prorated or must the court incorporate the prior
installments that were successfully paid into an amount that should be prorated?” Request Letter,
supra note 1, at 3.

         The entire sum received must be allocated in accordance with the costs-first allocation rule.
Under article 45.04 1, a lump sum payment and payment in installments are interchangeable, and the
allocation of monies received in either form should be treated the same way. Thus, costs must be
satisfied first, and any remaining money may be used towards the fine. If the sum total is insufficient
to satisfy even the costs due, then the money must be divided, pro rata, among the costs.

        Given this answer, you ask whether the county treasurer must “retain all monies received
through the payment of installments until the total aggregate amount is collected or it is determined
that such amount cannot and will not be fully paid.” Request Letter, supra note 1, at 3.

        In accordance with chapter 133 of the Local Government Code, which became effective on
January 1,2004, all criminal fees due to the state must be remitted to the comptroller quarterly. See
TEX. Lot. GOV’TCODE ANN. 05 133.055(a)(l), .012(a) (Vernon Supp. 2004); see also Act of June
1,2003,78th    Leg., R.S., ch. 209, 9 62(b), 2003 Tex. Gen. Laws 979,998 (stating effective date).
Thus, with respect to costs due to the state, the portion of payments received that is due to the state
must be timely paid.

        To the extent chapter 133 does not apply, regulations adopted by the county auditor and the
comptroller may prescribe how a county treasurer should handle installment payments. In a county
The Honorable Jeri Yenne      - Page 4      (GA-0147)




the size of Brazoria County, the county auditor prescribes a system of accounting for the county and
may adopt accounting regulations. See TEX. LOC. GOV’T CODEANN. $ 112.002 (Vernon Supp.
2004) (applying to counties with populations greater than 190,000); see also UNITED STATES
CENSUSBUREAU,U.S. DEP’T OF COMMERCE,2000 CENSUSOF POPULATION:State and County
Quick Facts (population of Brazoria County is 241,767), available at http://quickfacts.census.
gov/qfd/states/48/48039/   (last visited Jan. 12, 2004). The auditor’s rules must comport with the
comptroller’s rules regarding the manner of keeping and stating a county official’s accounts. See
TEX. Lot. GOV’T CODEANN. $112.003(a) (Vernon Supp. 2004).

        To the extent that the county auditor’s and comptroller’s rules do not resolve your question,
we believe a commissioners court should instruct the treasurer how to proceed in this situation. A
county treasurer must “pay and apply” county funds “as required by law and as the commissioners
court may require or direct, not inconsistent with law.” Id. 0 113.041(a).

         You also ask how the allocation rule should be applied if a court order provides for a
different allocation of the collected monies. As we have already determined, article 45.041 is not
relevant to the allocation of costs and fines, and no other statute has been enacted that preempts the
application of the costs-first allocation rule. Thus, the money received must be allocated to cover
costs first, and then to the fine.

          You finally ask us to “comment as to what bearing, if any, the terms of a third party
collections contract,” entered under article 103.003 1 of the Code of Criminal Procedure, has on the
costs-first allocation rule or a court order issued under article 45.041 (b). Request Letter, supra note
1, at 3. As amended by the legislature in 2003, article 103.003 1 permits a county commissioners
court or a municipal governing body to contract with a private attorney or private vendor to collect,
among other things, unpaid fines and court costs ordered paid by a court serving the county. See
TEX. CODE GRIM. PROC.ANN. art. 103.0031(a)(l)(A)             (V emon Supp. 2004). The contract may
authorize the private attorney or vendor to collect from a defendant a fee equal to thirty percent of
each fine or court cost that is more than sixty days past due and that has been referred to the attorney
or vendor for collection. Id. art. 103.003 1(b); see also id. art. 103.003 1(f) (providing for calculation
of sixty days past due). But see id. art. 103.003 l(d) (p roviding that an indigent defendant is not
liable for collection fees). Subsection (e), as renumbered and amended in 2003, provides for a
situation in which the collector does not recover the total amount due:

                         If a county or municipality has entered into a contract . . . and
                a person pays an amount that is less than the aggregate total to be
                collected . . . , the allocation to the comptroller, the county or
                municipality, and the private attorney or vendor shall be reduced
                proportionally.

Id. art. 103.003 1(e).

         In our opinion, under article 103.003 l(e), the private collector would receive thirty percent
of the aggregate amount collected. The amount of collected monies remaining after the private
collector has received his or her share must be allocated in accordance with the costs-first allocation
rule.
TheHomrable JeziYeme - Page 5              (GA-0147)




                                        SUMMARY

                        Article 45.041(b)(l)    of the Code of Criminal Procedure
               authorizes ajustice of the peace to order a convicted defendant to pay
               costs and fines due either as a lump sum or in installments, but it does
               not preempt the application of the long-standing costs-first allocation
               rule. Under the allocation rule, a county must allocate monies
               received from a defendant first to pay costs and then to pay a fine. If
               the monies received do not cover all of the costs, then the monies
               must be allocated to costs on a pro rata basis. If a justice of the peace
               has ordered installment payments, the total sum received must be
               allocated in accordance with the allocation rule.

                       If a private collector collects the costs and fines under article
               103.003 1 of the Code of Criminal Procedure, the private collector
               will receive thirty percent of the aggregate amount collected.
               Remaining monies must be allocated to costs first, on a pro rata basis,
               and then to the fine.




                                               Attorney General of Texas


BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT.
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly IS. Oltrogge
Assistant Attorney General, Opinion Committee
