                             ATTORNEY GENERAL OF TEXAS
                                          GREG        ABBOTT




                                               August 17,2012



The Honorable Paul Johnson                              Opinion No. GA-0960
Denton County Criminal District Attorney
Post Office Box 2850                                    Re: Refund of cash bail bonds under article 17.02,
Denton, Texas 76202                                     Code of Criminal Procedure (RQ-I045-GA)

Dear Mr. Johnson:

      You pose several questions about the refund of cash bail bonds and the possible conflict
between article 17.02 of the Code of Criminal Procedure and section 117.055 of the Local
Government Code. 1

         Bail is "the security given by the accused that he will appear and answer before the proper
court the accusation brought against him." TEX. CODE CRIM. PROC. ANN. art. 17.01 (West 2005).
Under the Code of Criminal Procedure, bail can take at least two forms, a bail bond or a personal2
bond. See id; see also In re Tharp, 351 S.W.3d 598, 600 (Tex. App.-Austin 2011, no pet.)
(characterizing the two types of bonds). A bail bond can be satisfied through either a third-party
surety guaranteeing the appearance of the defendant or by the defendant's depositing a set amount
of cash with the court. See TEX. CODE CRIM. PROC. ANN. art. 17.02 (West Supp. 2011); see also
Prof'l Bondsmen a/Tex. v. Carey, 762 S. W.2d 691,693 (Tex. App.-Amarillo 1988, no writ) ("[I]t
is clear that a bail bond can be satisfied by posting either a surety bond or a cash bond in the amount
set by the court."). Such a cash deposit by a defendant is a cash bail bond. See Melton v. State, 993
S.W.2d 95, 97 (Tex. 1999).

        Article 17.02 provides for the refund ofacash bail bond. See TEX. CODECRIM. PROC. ANN.
art. 17.02 (West Supp. 2011). Prior to a 2011 amendment, article 17.02 provided that the refund of
a cash bail bond could be made only to the defendant. See Act of May 27, 1965, 59th Leg., R.S. , ch.
722, 1965 Tex. Gen. Laws 317, 374 ("Any cash funds deposited ... shall be refunded to the
defendant .... "); see also Tex. Att'y Gen. Op. Nos. GA-0773 (2010) at 2 (noting article 17.02's



         iLetter from the Office of Denton Cnty. Criminal Dist. Att'y, Honorable Paul Johnson, to Honorable Greg
Abbott, Tex. Att'y Gen. at 1 (Mar. 8, 2012), http://www.texasattomeygeneral.gov/opin ("Request Letter").

        2A personal bond is a bond with no sureties or other security. See TEX. CODE CRIM. PROC. ANN. arts. 17.03
(West Supp. 2011) (providing for personal bonds), 17.04 (West 2005) (providing the requisites of a personal bond).
The Honorable Paul Johnson - Page 2                    (GA-0960)



mandatory duty to refund the cash bond to the defendant), JC-0024 (1999) at 2 (recognizing that cash
bail bond refund belongs to the defendant). With the amendment, article 17.02 now provides that

                  [a]ny cash funds deposited under this article shall be receipted for by
                  the officer receiving the funds and, on order of the court, be refunded,
                  after the defendant complies with the conditions of the defendant's
                  bond, to:

                         (1) any person in the name of whom a receipt was issued,
                  in the amount reflected on the face of the receipt, including the
                  defendant if a receipt was issued to the defendant; or

                          (2) the defendant, if no other person is able to produce a
                  receipt for the funds.

TEX. CODE CRIM. PROC. ANN. art. 17.02 (West Supp. 2011).

         The other provision about which you ask is section 117.055 of the Local Government Code.
It pertains to the administration of county expenses and provides that

                  [t]o compensate the county for the accounting and administrative
                  expenses incurred in handling the registry funds 3 that have not earned
                  interest, including funds in a special or separate account, the clerk
                  shall, at the time of withdrawal, deduct from the amount of the
                  withdrawal a fee in an amount equal to five percent of the withdrawal
                  but that may not exceed $50.

TEX. Loc. GOV'T CODE ANN. § 117.055 (West 2008) (footnote added).

         You seek clarification on the following questions relating to the two provisions:

                  (1) If a court orders a cash bond refund, are the requirements of
                  article 17 .02( 1) met if a clerk withdraws from the registry the amount
                  reflected on the face of the receipt, deducts the handling fee provided
                  for in [section] 117.055, and refunds the balance to the person in
                  whose name the receipt was issued?



         )"Registry funds" subject to chapter 117 are "funds tendered to the clerk for deposit into the registry of the
court." TEX. Loc. GOV'T CODE ANN. § 117.001 (3) (West 2008). These funds include funds deposited as a cash bail
bond. See id. § 117.052(c)(6); Tex . Att'y Gen. Op. Nos. DM-282 (1994) at2 (concluding that cash bail bonds fall within
the scope of chapter 117); IM-1162 (1990) at 2 (same). You do not tell us whether the cash bail bonds are deposited
in non-interest bearing accounts. Because you ask specifically about section 117.055, we assume for purposes of this
opinion that they are.
The Honorable Paul Johnson - Page 3              (GA-0960)



                (2) Maya court include in its refund order instructions to deduct the
                handling fee provided for in [section] 117.055? Is this necessary
                before a clerk may deduct the fee from the amount refunded to a
                person described in [article] 17.02(1) (a person in whose name a
                receipt was issued)?

                (3) Does [article] 17.02(2) presume that a receipt was issued in the
                name of someone other than the defendant?

                (4) Does [article] 17.02(1) require the person named in the receipt
                (defendant or other named person) to produce his own receipt before
                the refund will be issued? Or, may the clerk issue a refund to the
                person named in the (state's copy of the) receipt? If so, what
                identification, if any, must the clerk require of the named person
                before issuing the refund?

                (5) How may the clerk determine when a person is "unable to
                produce a receipt." For example, is the person entitled to notice of
                the refund order and an opportunity to claim his refund within a
                certain time?

Request Letter at 3.

         Because under former article 17.02 all cash deposited as a bail bond was to be refunded to
the defendant, and under section 117.055 an administrative fee was to be withheld from a cash bail
refund, this office previously determined that the two provisions irreconcilably conflicted and that
section 117.055, as the later-enacted statute, prevailed. See Tex. Att'y Gen. Op. No. JC-0163 (1999)
at 3. We subsequently reaffirmed that conclusion. See Tex. Att'y Gen. Op. No. GA-0436 (2006)
at 2, 4 (concluding that because article 17.02 had not been amended subsequent to the issuance of
Opinion JC-0163, section 117.055 remained the later-enacted statute and still prevailed).

         Because the Legislature amended article 17.02 in 2011, we must reconsider those opinions.
The new language in subarticle 17.02(1) requires the cash bail bond refund to be "in the amount
reflected on ... the receipt." TEX. CODE CRIM. PROC. ANN. art. 17.02(1) (West Supp. 2011). By
referring to the receipt, which is issued with respect to "any cash funds deposited under this article,"
subarticle 17 .02( 1) re-enacts the statutory requirement that the full amount paid as the cash bail bond
must be returned. See id. (emphasis added). Cj McConathy v. State, 528 S.W.2d 594,596 (Tex.
Crim. App. 1975) (recognizing that the primary purpose of a bail bond, including a cash bail bond,
is to secure the trial of the accused, and "is not a revenue measure intended to be a substitution for
a fine"). Accordingly, article 17.02 as amended continues to conflict irreconcilably with section
117.055, which requires the deduction of a fee. Because the 2011 amendment is the most recent
legislative enactment, sub articles (1) and (2) are now the later-enacted provisions and therefore
prevail over section 117.055 with respect to cash bail bond refunds. See TEX. GOV'T CODE ANN.
The Honorable Paul Johnson - Page 4           (GA-0960)



§ 311.025(a) (West 2005); see also Clark v. Young, 787 S.W.2d 166, 168-69 (Tex. App.-Fort
Worth 1990, writ denied) (stating that "we assume section 311.025 rests upon the presumption that
when enacting new law that is in conflict with older law, it is presumed that the legislature intends
to amend the older law").

         This conclusion requires that your first two questions be answered in the negative because
the amended statute prohibits the county from deducting the fee. Although Attorney General
Opinions JC-O 163 and GA-0436 correctly interpreted the law as it existed at the time they were each
issued, their conclusion that a county may deduct the fee was superseded by the 2011 amendment
to article 17.02.

        Your remaining questions are not purely legal questions but instead raise practical and
logistical considerations that must be addressed by the county clerk in the first instance.
Accordingly, they are inappropriate for the opinion process and we do not address them. See Tex.
Att'y Gen. Op. No. GA-0876 (2011) at 1 (stating that "the role ofthe opinion committee is to advise
authorized requesters about purely legal questions").
The Honorable Paul Johnson - Page 5          (GA-0960)



                                      SUMMARY

                      Due to the recent legislative amendment to article 17.02 of the
              Code of Criminal Procedure, a county is no longer entitled to deduct
              a fee for accounting and administrative expense from the refund of a
              cash bail bond.

                      Attorney General Opinions JC-0163 and GA-0436 are
               superseded due to legislative enactment.

                                             Very truly yours,




DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
