                                ATTORNEYGENERAL OF TEXAS
                                             GREG         ABBOTT


                                                  June 23,2004



The Honorable Tim Curry                                          Opinion No. GA-0207
Tan-ant County Criminal District Attorney
Justice Center                                                   Re: When a surety is entitled to a refund under
401 West Belknap                                                 Government      Code section 41.258, which
Fort Worth, Texas 76196-0201                                     mandates an officer taking a bail bond to
                                                                 require the surety to pay a cost (RQ-0153-GA)


Dear Mi-. Curry:

         You ask a number of questions about the refund provision in Government Code section
41.258, which mandates that an officer taking a bail bond require the surety to pay a cost, most of
which is ultimately deposited in the state treasury in the “felony prosecutor supplement fund” and
the “fair defense account.“’

I.       LePal Backw-ound: The Government Code Section 41.258 Cost

         Chapter 41, subchapter D of the Government Code provides for longevity pay for assistant
prosecutors. See TEX. GOV’T CODE ANN. $5 41.252-.253 (Vernon 2004). Section 41.258, enacted
by the legislature in 2003,2 provides a funding mechanism for longevity pay. It creates the “felony
prosecutor supplement fund” in the state treasury, see id. $41.258(a), and mandates an officer taking
a bail bond to require the surety to pay a cost:

                         A court, judge, magistrate, peace officer, or other officer
                 taking a bail bond for an offense other than a misdemeanor
                 punishable by fine only under Chapter 17, Code of Criminal
                 Procedure, shall require the payment of a $15 cost by each surety
                 posting the bail bond, provided the cost does not exceed $30 for all
                 bail bonds posted at that time for an individual and the cost is not
                 required on the posting of a personal or cash bond.

Id. 5 41.258(b). In some circumstances, a bail bond surety may later be entitled to a refund under
section 41.258(f), which provides that “[a] surety paying a cost under Subsection (b) may apply for


          ‘Letter from Honorable Tim Curry, Tarrant County Criminal District Attorney, to Honorable       Greg Abbott,
Texas Attorney        General   (Dec.     19, 2003)  ( on file with the Opinion  Committee,   also        available at
http://www.oag.state.tx.us)   [hereinafter Request Letter].

        *See Act of May 30,2003,78th    Leg., R.S., ch. 1083,s    4,2003   Tex. Gen. Laws 3111,3112-13.
 The Honorable Tim Curry - Page 2                          (GA-0207)




 and is entitled to a refund of the cost not later than the 18 1st day after the date the state declines to
 prosecute an individual or the grand jury declines to indict an individual.” Id. 5 41.258(f).

          An officer collecting a cost from a bail bond surety under section 41.258 “shall deposit the
 cost in the county treasury” in accordance with article 103.004 of the Code of Criminal Procedure,
 see id. 9 41.258(c), keep separate records of the funds collected, see id. 9 41.258(d)(l), and file the
 reports required by article 103.005 of the Code of Criminal Procedure, see id. $ 41 .258(d)(2).3

          The custodian of the county treasury is required to “( 1) keep records of the amount of funds
 on deposit that are collected under this section” and “(2) send to the comptroller not later than the
 last day of the month following each calendar quarter the funds collected under this section during
 the preceding quarter.” Id. 9 41.258(e). A county may retain ten percent of the funds collected under
 section 41.258 and may also retain all interest accrued on the funds if the custodian “(1) keeps
 records of the amount of funds on deposit” and “(2) remits the funds to the comptroller as prescribed
 by Subsection (e).” Id. $ 41.258(g).

         The comptroller is required to deposit one-third of these funds in the fair defense account and
two-thirds of the funds in the felony prosecutor supplement fund. See id. 9 41.258(i). The fair
defense account “is an account in the general revenue fund that may be appropriated only to the Task
Force on Indigent Defense for the purpose of implementing” Government Code chapter 71,
subchapter D. See id. 5 71.058. The comptroller must use the felony prosecutor supplement fund
to pay supplements to counties for prosecutor longevity pay under chapter 41. See.id. 0 41 .258(j).4
A county funds prosecutor longevity pay with money it receives from the comptroller.              See id.
9 41.255.

          Prior to these 2003 amendments to chapter 41, this office construed chapter 41 to require a
county to provide longevity pay to prosecutors even if the legislature has not appropriated funds to
reimburse the county. See Tex. Att’y Gen. Op. No. JC-0438 (2001) at 2. According to the
legislative history, the legislature intended the 2003 amendments to “maker] plain that counties have
no obligation to pay the longevity supplement unless state funds are appropriated for that purpose.”
HOUSE COMM. ON JUDICIALAFFAIRS,BILL ANALYSIS, Tex. H.B. 1940, 78th Leg., R.S. (2003)
(CommitteeReport);see        also SENATERESEARCHCENTER,SENATECOMM.ONCRIMINALJUSTICE,
BILLANALYSIS,Tex. H.B. 1940,78th Leg., R.S. (2003) (Engrossed Version dated May 11,2003);
SENATERESEARCHCENTER,SENATECOMM.ONCRI~~MALJUSTICE,BILLANALYSIS,T~~.H.B.~~~~,
78th Leg., R.S. (2003) (Committee Report dated May 21, 2003). The legislature established the


          ‘Article 103.004 requires an offker collecting bail bonds, fines, and other obligations in the name of the state
to deposit the money in the county treasury within a certain time frame. See TEX.CODEGRIM.PROC.ANN. art. 103.004
(Vernon Supp. 2004). Article 103.005 requires an offker who collects money for the county or the state to report certain
information to the commissioners court or district court with jurisdiction in the county. See id. art. 103.005(a) (report
to commissioners court), (b) (report to district court). The report must state the amount of money collected by the offricer,
when and from whom the money was collected, the process by which the money was collected, and the disposition of
the money. See id. art. 103.005(c).

           4Although the Seventy-eighth Legislature generally abolished dedicated revenues and special accounts in the
state treasury, it expressly excepted the felony prosecutor supplement fund. See Act of May 30,2003,78th   Leg., R.S.,
ch. 1296, $9 2,19,2003      Tex. Gen. Laws 4705,4705,4707.
The Honorable Tim Curry - Page 3                   (GA-0207)




felony prosecutor fund in the state treasury, “with the funds being generated by” the section 41.258
cost imposed on bail bond sureties, “[i]n order to provide funds in today’s challenging fiscal
environment.” HOUSE COMM. ON JUDICIALAFFAIRS,BILL ANALYSIS,Tex. H.B. 1940,78th Leg.,
R.S. (2003) (Committee Report).

II.     Analvsis

        You ask six questions about the refund provision, section 41.258(f).   See TEX. GOV’T CODE
ANN. $41.258(f) (V     emon 2004)  (“A surety  paying a cost under Subsection  (b) may apply for and
is entitled to a refund of the cost not later than the 181st day after the date the state declines to
prosecute an individual or the grand jury declines to indict an individual.“):

                1.      How does one determine           “the date the state declines        to
                prosecute an individual?”

                2.       How does one determine the date when a grand jury “declines
                to indict?”

                3.      When is interest owed to the surety on the amount refunded?

                4.       To whom should a surety “apply” for a refund: the officer
                collecting the fee, the county treasurer, or the State Comptroller?

                5.       If an application for   a refund of    costs previously sent to the
                State is properly made to the    local county    treasurer, may the treasurer
                remit the net funds collected    each quarter   to the state-that is, the costs
                collected minus any refunds       paid during   the quarter?

                6.       What kind of entitlement “proof’ should a local officer or
                treasurer require before issuing refunds to sureties?

Request Letter, supra note 1, at 2-5.

        A.      Refund Entitlement Date

                 Your first two questions involve the two grounds for obtaining a refund under section
41.258(f). The section 41.258 cost is paid by a surety posting “a bail bond for an offense other than
a misdemeanor punishable by tine only.” TEX. GOV’T CODE ANN. 9 41.258(b) (Vernon 2004).
Under section 41.258(f), a surety “is entitled to and may apply for a refund of the cost not later than
the 18 1st day after the date the state declines to prosecute an individual or the grand jury declines
to indict an individual.” Id. 0 41.258(f). You ask how one determines the date the state declines to
prosecute or the date the grand jury declines to indict.

       Because section 41.258(f) conditions refunds on events in the criminal justice process, see
id., we construe it in light of Code of Criminal Procedure provisions governing criminal
The Honorable Tim Curry - Page 4                         (GA-0207)




prosecutions.   See id. 5 3 11 .Ol 1(b) (Vernon 1998) (“Words and phrases that have acquired a
technical or particular meaning, whether by legislative definition or otherwise, shall be construed
accordingly.“). “A ‘bail bond’ is a written undertaking entered into by the defendant and his sureties
for the appearance of the principal . . . before some court or magistrate to answer a criminal
accusation.” TEX. CODE CFUM.PROC. ANN. art. 17.02 (Vernon 1977); see also id. art. 17.09(l), (3)
(A bail bond surety is liable for the defendant’s appearance before the court in any proceeding related
to the charges for the proceedings’ duration, unless the court finds that the bond is defective,
excessive, or insufficient in amount or that the sureties are unacceptable.).      A defendant may be
released on bail after arrest for an offense before being formally charged.5 A defendant is formally
charged with an offense either by indictment or by information. See id. arts. 2 1.Ol, 2 1.20 (Vernon
 1989). An “indictment” is “the written statement of a grand jury accusing a person . . . of some act
or omission which, by law, is declared to be an offense.” Id. art. 21.01. “An ‘information’ is a
written statement filed and presented in behalf ofthe State by the district or county attorney, charging
the defendant with an offense which may by law be so prosecuted.” Id. art. 21.20.

         When a complaint is made to a district or county attorney that an offense has been committed
in the district or county, the attorney “shall reduce the complaint to writing and cause the same to
be signed and sworn to by the complainant, and it shall be duly attested by said attorney.” Id. art.
2.04 (Vernon 1977). Generally, if the offense is a misdemeanor,              the attorney prepares an
information and files it with the appropriate court, See id. art. 2.05. If the offense is a felony, the
attorney must file the complaint with a magistrate of the county. See id. ; see also id. art. 1.05 (“No
person shall be held to answer for a felony unless on indictment of a grand jury.“). But see id. art.
1.14 1 (A person represented by legal counsel may “waive the right to be accused by indictment of
any offense other than a capital felony.        On waiver . . . , the accused shall be charged by
information.“).    In addition, an attorney representing the state may go before the grand jury to
“inform them of offenses liable to indictment.” Id. art. 20.03.

         In the ordinary case, “‘so long as the prosecutor has probable cause to believe that the
accused committed an offense defined by statute, the decision whether or not to prosecute, and what
charge to tile or bring before a grand jury, generally rests in his discretion.“’ Roise v. State, 7
S.W.3d 225,243 (Tex. App.-Austin 1999, pet. ref d) (citing Border&z&her v. Hayes, 434 U.S. 357,
364 (1978)); see also Taylor v. Gately, 870 S.W.2d 204, 204-05 (Tex. App.-Waco              1994, writ
dism’d) (holding that mandamus will not issue against prosecuting attorney for failure to institute
a criminal case) (noting that “upon the prosecuting attorneys rests the power of determining whether



          *See eg TEX. CODE GRIM. PROC. ANN. arts. 20.22 (Vernon Supp. 2004) (“The fact of a presentment of
indictment by a &kid jury shall be entered upon the minutes of the court, if the defendant is in custody or under bond,
noting briefly the style of the criminal action and the file number of the indictment and the defendant’s name. If the
defendant is not in custody or under bond at the time of the presentment of indictment, the entry in the minutes of the
court relating to said indictment shall be delayed until such time as the capias is served and the defendant is placed in
custody or under bond.“), 32.01 (“When a defendant has been detained in custody or held to bail for his appearance to
answer any criminal accusation before the district court, the prosecution, unless otherwise ordered by the court, for good
cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not
presented against such defendant on or before the last day of the next term of the court which is held after his
commitment or admission to bail or on or before the 180th day after the date of commitment or admission to bail,
whichever date is later.“).
The Honorable Tim Curry - Page 5                         (GA-0207)




prosecution in any given case shall be inaugurated, or, if inaugurated, pushed to a successful
conclusion”) (citing TEX. CONST. art. V, 0 21 inter-p. commentary (Vernon 1993)).

         With respect to indictments, a grand jury “shall inquire into all offenses liable to indictment
of which any member may have knowledge, or of which they shall be informed by the attorney
representing the State, or any other credible person.” TEX. CODE CRIM. PROC. ANN. art.20.09
(Vernon 1977). Under Code of Criminal Procedure article 20.19, the grand jury votes “as to the
presentment of an indictment” and, if nine members “concur in finding the bill, the foreman shall
make a memorandum.       . . with such data as will enable the attorney who represents the State to write
the indictment.” Id. art. 20.19; see also id. art. 20.20 (grand jury foreman to deliver indictment to
the court).

          Based on section 41.258’s plain language and these Code of Criminal Procedure provisions
initiating criminal prosecution by information or indictment, we conclude that “the date the state
declines to prosecute an individual, ” TEX. GOV’T CODE ANN. 9 41.258(f) (Vernon 2004), refers to
the date a prosecutor decides not to institute a criminal proceeding against a person, either by
deciding not to charge a person by information, by deciding not to present the allegations to the
grand jury, or by deciding not to file a felony “complaint with a magistrate of the county.” See TEX.
CODE GRIM.PROC. ANN. arts. 2.04-.05,20.09         (Vernon 1977). We also conclude that “the date . . .
the grand jury declines to indict an individual, ” TEX.GOV’T CODE ANN. 9 41.258(f) (Vernon 2004),
refers to the date a grand jury votes not to indict the person. See TEX. CODE GRIM. PROC.ANN. art.
20.19 (Vernon 1977) (grand jury vote on presentment of an indictment).

        We agree with your conclusion that the former phrase, “the date the state declines to
prosecute an individual, ” does not refer to a date a court dismisses a criminal case pursuant to the
prosecutor’s motion after the defendant has been charged by information or indictment.             For
example, charges against a defendant may be dismissed upon the prosecutor’s motion with the
court’s approval at any time pursuant to article 32.02 of the Code of Criminal Procedure6 or after the
defendant has successfully completed community supervision as provided by article 42.12.7
Construing section 41.258 not to permit a refund after a court dismisses a case against a defendant


           6See id. art. 32.02 (Vernon 1989) (“The attorney representing the State may, by permission of the court, dismiss
a criminal action at any time upon tiling a written statement with the papers in the case setting out his reasons for such
dismissal, which shall be incorporated in the judgment of dismissal. No case shall be dismissed without the consent of
the presiding judge.“).

            ‘See id. art. 42.12, $4 5(c) (Vernon Supp. 2004) (L‘On expiration of a community supervision period imposed
under Subsection (a) of this section, if the judge has not proceeded to adjudication of guilt, the judge shall dismiss the
proceedings against the defendant and discharge him.“), 20(a) (“At any time, after the defendant has satisfactorily
completed one-third of the original community supervision period or two years of community supervision, whichever
is less, the period of community supervision may be reduced or terminated by the judge. Upon the satisfactory fi.rltilhnent
of the conditions of community supervision, and the expiration of the period of community supervision, the judge, by
order duly entered, shall amend or modify the original sentence imposed, if necessary, to conform to the community
supervision period and shall discharge the defendant. If the judge discharges the defendant under this section, the judge
may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint,
information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities
resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty” with certain
exceptions.).
The Honorable Tim Curry - Page 6                         (GA-0207)




who has been formally charged is consistent with the provision’s purpose to fund prosecutor
longevity pay and indigent defendants’ defense, both of which are expenses in prosecuting criminal
cases. See TEX. GOV’T CODE ANN. 9 41.258(i)-(j) (Vernon 2004); see also supra pp. 2-3
(summarizing bill analyses). In permitting refunds in cases in which the state declines to prosecute
or the grand jury declines to indict, section 41.258(f) appears to contemplate circumstances in which
defendants who have posted bail are never formally charged with an offense by indictment or
information, which are matters resolved with little state expense. The legislature does not appear
to have contemplated refunds in cases where defendants are formally charged, which necessarily
involve more state expense. See TEX. GOV’T CODE ANN. $3 11.023 (Vernon 1998) (“In construing
a statute, . . . court may consider among other matters the: (1) object sought to be attained; (2)
circumstances     under which the statute was enacted; (3) legislative history; . . . [and] (5)
consequences of a particular construction . . . .“). Furthermore, construing this phrase to refer only
to a prosecutor’s initial decision to decline to prosecute is consistent with the second refund ground,
a grand jury’s decision not to indict, which also happens at an early point in a prosecution. See id.
5 311.021(2)-(3) (“In enacting a statute, it is presumed that: . . . the entire statute is intended to be
effective [and] a just and reasonable result is intended.“).

         With respect to the latter phrase, “the date. . . the grand jury declines to indict an individual,”
you note that grand jury proceedings are secret, see TEX. CODE GRIM.PROC.ANN. art. 20.02 (Vernon
 1977), and that the Code of Criminal Procedure does not require a grand jury to “issue any
instrument when a matter is concluded and voted upon without an indictment being issued.” Request
Letter, supra note 1, at 3. However, you state that it is the practice in your county “to terminate a
previously filed case whenever a grand jury considers a matter, takes a vote, and fails to indict.” Id.
The district attorney’s office sends a letter informing the court clerk and other relevant parties about
the “grand jury’s ‘no-bill.“’ Id.8 We agree with your assessment that a bail bond surety is entitled
to a refund under section 41.258 when a prosecutor terminates a filed case because the grand jury
failed to indict. See id. Of course, the surety would be entitled to apply for a refund after the date
the grand jury declines to indict an individual even if the prosecutor does not send such a letter.

          You are concerned that sometimes a defendant whose prosecution has been terminated due
to the “grand jury’s ‘no-bill”’ may later be indicted by the same grand jury or by a different grand
jury. See id. Seegenerally Rachalv. State, 917 S.W.2d 799,807 (Tex. Crim. App. 1996) (“A Grand
Jury’s no-bill is merely a finding that the specific evidence brought before the particular Grand Jury
did not convince them to formally charge the accused with the offense alleged.“). If a defendant and
the bail bond surety are released from the first bond after a grand jury “no-bill” and the defendant
is indicted at a later time, presumably the defendant will be required to post a new bail bond. Unless
the new bond is a personal or cash bond, the officer taking the new bond would collect a section
41.258 cost.


          ‘In addition, we note that a defendant could learn that a grand jury has declined to indict based on grand jury
information. Article 20.02(d) of the Code of Criminal Procedure provides that a defendant may petition a court to order
disclosure of secret grand jury information upon showing “particularized need.” Id. art. 20.02(d) (Vernon 1977) (“The
defendant may petition a court to order the disclosure of information otherwise made secret by this article or the
disclosure of a recording or typewritten transcription under Article 20.012 as a matter preliminary to or in connection
with a judicial proceeding. The court may order disclosure of the information, recording, or transcription on a showing
by the defendant   of a particularized   need.“).
The Honorable    Tim Curry - Page 7             (GA-0207)




        B.      Refund Proof

                In a related question, you ask what kind of proof a bail bond surety should be required
to submit to obtain a refund. See Request Letter, supra note 1, at 5 (question 6). In particular, you
are concerned that no particular legal instrument “documents a prosecutor’s failure to prosecute or
a grand jury’s failure to indict.” Id.

         Section 41.258 is silent on this issue. By implication, section 41.258 requires the entity or
officer charged with processing refund applications to grant a timely application based on any
documents that establish that (i) the bail bond surety paid a section 41.258 cost posting bond for a
defendant and (ii) that “the state decline[d] to prosecute” or that “the grand jury decline[d] to indict”
the defendant. See TEX. GOV’T CODE ANN. 9 41.258(b), (f) (V emon 2004). A number of documents
could establish these facts. You mention “documentation from the applicable prosecutor that he has
declined prosecution as of a particular date or that a grand jury has declined to indict as of a
particular date.” Request Letter, supra note 1, at 4. A bail bond surety might also be able to
demonstrate that the prosecutor declined to prosecute or that the grand jury declined to indict based
on a court order or docket entry regarding the case’s disposition.

        C.      Procedural Matters: Refund Application Processing and Refund Accounting

                  You ask two questions about how refund applications should be administered and
paid. You ask, “To whom should a surety ‘apply’ for a refund: the officer collecting the fee, the
county treasurer, or the State Comptroller. 7” Id. at 4 (question 4). You point out that by the time a
bail bond surety seeks a refund, the surety’s payment may have been deposited in the county treasury
or transferred from the county treasury to the state treasury.           See TEX. GOV’T CODE ANN.
5 41.258(c), (e)(2), (i) (Vernon 2004). Assuming that the refund will be paid by the county, you also
ask whether a county treasurer may “remit [to the comptroller] the net funds collected each quarter
to the state-that   is, the costs collected minus any refunds paid during the quarter?” Request Letter,
supra note 1, at 4 (question 5). You state it would be unjust to “plac[e] the entire burden of refunds
on local counties who will only benefit from a minority portion of funds which are collected for
statewide distribution, and whose surplus, if any, will eventually be deposited in the State’s general
fund.” Id. at 5.

         Section 41.258 does not specify to whom a bail bond surety may submit a refund application
and does not specify whether the state or the county pays a refund. Given that ninety percent of
section 41.258 costs are ultimately deposited in the state treasury and that the comptroller has general
authority over state and county accounting, the comptroller is the proper official to determine
whether section 41.258 refund applications should be processed at the state or county level and
whether refunds should be paid by the state or the county.              See TEX. GOV’T CODE ANN.
9 403.011 (a)(2)-(3), (7) (Vernon Supp. 2004) (authorizing the comptroller to “adopt regulations the
comptroller considers essential to the speedy and proper assessment and collection of state
revenues “*, “supervise, as the sole accounting officer of the state, the state’s fiscal concerns and
manage those concerns as required by law “; “prescribe the mode and manner of keeping and stating
of accounts of persons collecting state revenue”); TEX. Lot. GOV’T CODE ANN. 0 112.003(a)
(Vernon Supp. 2004) (“The comptroller of public accounts shall prescribe and prepare the forms to
The Honorable Tim Curry - Page 8                 (GA-0207)




be used by county officials in the collection of county revenue, funds, fees, and other money and in
the disbursement of funds. The comptroller shall prescribe the manner of keeping and stating the
accounts of the officials.“). Of course, in the absence of direction from the comptroller, counties
may accept refund applications and provide refunds.

         Assuming that the counties pay refunds, section 41.258 is silent with respect to how a county
should account for refunds and whether refunds may be deducted fi-om amounts sent to the
comptroller under section 41.258(e)(2). We believe it is reasonable to construe section 41.258 to
require refunds to come from costs collected under section 41.258(b) rather than other funds in the
county treasury.     The legislative history indicates that the purpose of the “felony prosecutor
supplement fund” and the section 41.258 funding source is to relieve counties of the burden of
paying for attorney salary supplements. See supra pp. 2-3 (summarizing bill analyses). It would not
be consistent with legislative intent to require counties to pay the entire cost of providing refunds
from county funds. Thus, we agree that the legislature did not intend to require counties to shoulder
the entire cost of providing refunds. See TEX. GOV’T CODE ANN. $0 3 11.02 l(2)-(3) (Vernon 1998)
(“In enacting a statute, it is presumed that: . . . the entire statute is intended to be effective [and] a
just and reasonable result is intended.“), 3 11.023 (“In construing a statute, . . . court may consider
among other matters the: (1) object sought to be attained; (2) circumstances under which the statute
was enacted; (3) legislative history; . . . [and] (5) consequences of a particular construction . . . .“).
However, section 41.258 does not expressly provide that a county may deduct refunds from amounts
remitted to the comptroller. See TEX. GOV’T CODE ANN. 4 41.258(e), (g) (Vernon 2004). It is for
the comptroller to determine as an accounting matter whether counties should deduct refunds from
amounts sent to the comptroller or whether the comptroller should reimburse counties for refunds.
See id. 0 403.01 l(a)(2)-(3), (7) (V emon Supp. 2004), TEX. Lot. GOV’T CODE ANN. 0 112.003(a)
(Vernon Supp. 2004).

        D.      Interest on Refunds

                  Finally, you ask, “When is interest owed to the surety on the amount refunded?”
Request Letter, supra note 1, at 3 (question 3). This question assumes that a bail bond surety who
is entitled to a refimd under section 41.258(f) is entitled to interest. Section 41.258 requires officials
taking bail bonds to collect a cost on the state’s behalf. See TEX. GOV’T CODE ANN. 0 41.258(g)
(Vernon 2004) (requiring the county to remit ninety percent of costs collected to the state). With
certain limited exceptions not relevant here, the state is not liable for interest unless expressly
required to pay interest by statute or contract. See State v. Hale, 146 S.W.2d 731,738 (Tex. 1941)
(noting general rule that the State is not liable for interest upon claims or judgments against it, in the
absence of an agreement on the part of the State to pay interest), WaZker v. State, 103 S.W.2d 404,
407 (Tex. Civ. App.-Waco 1937, no writ) (“It is a very well-established rule that a State is not liable
for interest in the absence of a statute or express contract providing for the payment thereof. The act
authorizing the bringing of this suit makes no provision for the recovering of interest. We know of
no statute that grants general authority to recover interest from the State.“). Section 41.258 does not
provide that a bail bond surety is entitled to interest on a refund. See TEX. GOV’T CODE ANN.
5 41.258 (Vernon 2004). Accordingly, we conclude that a bail bond surety who applies for a cost
refund under section 41.258 is not entitled to interest.
The Honorable Tim Curry - Page 9            (GA-0207)




                                     SUMMARY

                      Government Code section 41.258(b) requires an officer taking
             a bail bond to collect a cost from the surety. The officer deposits the
             money in the county treasury and the county later sends most of the
             money to the comptroller, who must deposit it in the fair defense
             account, which may be used only by the Task Force on Indigent
             Defense to implement Government Code chapter 71, subchapter D,
             and the felony prosecutor supplement fund, which is used to pay
             longevity pay to prosecutors.     Pursuant to section 41.258(f), a bail
             bond surety is entitled to a refund of a cost paid under section
             41.258(b) as of the date the prosecutor decides not to institute a
             criminal proceeding against the defendant or the date a grand jury
             votes not to indict the defendant.

                      Given that most of section 41.258 costs are ultimately
             deposited in the state treasury and that the comptroller has general
             authority over state and county accounting, the comptroller is the
             proper official to determine      whether section 41.258 refund
             applications should be processed at the state or county level and
             whether refunds should be paid by the state or the county. In the
             absence of direction from the comptroller, counties may accept refund
             applications and provide refunds.

                      If a county pays a refund, it is reasonable to construe section
             41.258 to require refunds to come from costs collected under section
             41.258(b) rather than other funds in the county treasury. However, it
             is for the comptroller to determine as an accounting matter whether
             counties should deduct refunds from amounts sent to the comptroller
             or whether the comptroller should reimburse counties for refunds. A
             bail bond surety who applies for a cost refund under section 41.258(b)
             is not entitled to interest.
The Honorable Tim Curry - Page     10       (GA-0207)




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee
