                        The Attorney                    General of Texas
                                          August          1,    1979
MARK WHITE
Attorney General

                   Honorable Patrick J. Ridley                         Opinion No. MW-3 7
                   County Attorney
                   Bell County Courthouse                              Re: Liability of a justice of the
                   Belton, Texas 76513                                 peace    who     has accepted   a
                                                                       worthless check.

                   Dear Mr. Ridley:

                         You have requested an opinion regarding the liability of a justice of
                   the peace who accepts as payment of a fine a personal check which is later
                   determined to be wcrthless.

                         The justice is liable          for all fines imposed in his court and may
                   discharge that responsibility        by compliance with article 1619, V.T.C.S., which
                   provides:

                                  Fines imposed and judgments rendered by justices
                               of the peace shall be charged against the justice
                               imposing or rendering the same. He may discharge
                               said indebtedness by filing with the county clerk the
                               treasurer’s receipt for the amount thereof, or by
                               showing to the satisfaction     of the commissioners
                               court that he has used due diligence to collect the
                               same without avail, or that the same have been
                               satisfied by imprisonment or labor.

                   See also V.T.C.S. arts. 1622, 1657; Code Crim. Proc. art. 1006. A check does
                   not represent final payment of the debt until it is honored by the bank, City
                   of El Paso v. Two Republics Life Ins. Co., 278 S.W. 231 (Tex. Civ. App. - El
                   Paso 1925, writ ref’d), and thus we believe the effect of a treasurer’s receipt
                   is conditional upon the check for which the receipt was issued being honored.
                   Attorney General Opinion V-312 (194’7);V.T.C.S. art. 1619.

                         If a check is not paid, however, the justice’s liability can be discharged
                   under article 1619 if he exercises due diligence to collect it. Issuance of a
                   capias pro fine under articles 45.51 and 45.52, Code of Criminal Procedure,
                   is one procedure which ordinarily will constitute due diligence.




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Honorable Patrick J. Ridley    -   Page   TWO    (m-37)




       Cf. V.T.C.S. art. 7261a (liability of tax collector for personal checks is discharged if
he secuFks adequate identification of the maker). Where he has exercised due diligence to
collect the fine the justice is entitled to be credited or reimbursed for any money he hei
advanced to the treasurer.

                                       SUMMARY

            In order to discharge his liability for the amount, a justice of the
            peace must exercise due diligence in collection on a worthless
            check accepted as payment of a fine. Issuance of a capias pro fine
            under articles 45.51 and 45.52, Code of Criminal Procedure, is one
            procedure which adinarily will constitute due diligence.




                                                 MARK     WHITE
                                                 Attorney General   of   Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by David B. Brooks
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
David B. Brooks
Tom Bullington
Charles Campbell
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood




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