                              ATTORNEY GENERAL OF TEXAS
                                           GREG        ABBOTT




                                            November 21,2006



The Honorable Bruce Isaacks                                 Opinion No. GA-0486
Denton County Criminal District Attorney
Post Office Box 2850                                        Re: Whether the $37 filing fee authorized by
Denton, Texas 76202                                         House Bill 11, Seventy-ninth     Legislature,
                                                            Second Called Session, may be collected in
                                                            bond forfeiture matters (RQ-0491 -GA)

Dear Mr. Isaacks:

        You seek an interpretation of House Bill 11, Seventy-ninth Legislature, Second Called
Session, which adopted a $37 filing fee in civil suits’ and a $4 fee on conviction in criminal cases
to fund increases injudges’ compensation. See Act ofAug. 9,2006,79th Leg., 2d C.S., ch. 3,2006
Tex. Gen. Laws 34,38. You in particular ask whether Local Government Code section 133.154 and
Government Code sections 101.062,101.083, and 101.123, as amended to~provide forthe $37 tiling
fee, apply to bond forfeiture matters. See Request Letter, supra note 1, at 1. You also ask whether
any other fees included in House Bill 11 apply to bond forfeiture matters. See id. at 2.

        Local Government       Code section 133.154(a), added by House Bill 11, provides as follows:

                          In addition to other fees authorized or required by law, the
                 clerk of a district court, statutory county court, or county court shall
                 collect a fee of $37 on the Jiling of any civil suit to be used for
                 court-related purposes for the support of the judiciary.

TEX. Lot. GOV’T CODE ANN. 5 133.154(a) (Vernon Supp. 2006) (emphasis added). The fees are
remitted to the Comptroller of Public Accounts for deposit in the judicial fund. See id. § 133.154(b);
see also TEX. GOV’T CODE ANN. 5 21.006 (Vernon 2004) (creating judicial fund in the state treasury
to be used only for court-related purposes for the support of the judicial branch of this state).

         HouseBill 11 also adoptedGovemmentCode          sections 101.062,101.083, and 101.123, which
respectively provide that the clerk of a district court, the clerk of a statutory county court, and the
clerk of a county court “shall collect on the filing of a civil suit an additional tiling fee of $37 under


          ‘Letter from Honorable Bruce Isaacks, Denton County Criminal District Attorney, to Honorable Greg Abbott,
Attorney General of Texas, at 1 (May 16, 2006) (on file with the Opinion Committee, also available al
h!,tp://ww.oag.state.tx.us)  [hereinafter Request Letter].
The Honorable Bruce Isaacks - Page 2                   (GA-0486)




Section 13 3.154, Local Government Code, to be used for court-related purposes for the support of
the judiciary.” TEX. GOV’T CODE ANN. 5s 101.062, ,083, ,123 (Vernon Supp. 2006). Under each
of the four provisions you inquire about, the $37 tiling fee is to be collected “on the tiling of a civil
suit.” See id.; TEX. LOC. GOV’T CODE ANN. $ 133.154(a) (Vernon Supp. 2006). Thus, the $37 fee
will apply to bond forfeitures only if a civil suit is filed in connection with these proceedings,

          Before addressing your question, we summarize the law on bail bond forfeitures. “‘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 CXIM. PROC. ANN. art. 17.01 (Vernon 2005). A
“bail bond” is a written promise by the defendant and his sureties to the state that the defendant will
appear before a court or magistrate to answer a criminal accusation, secured by an amount of money
set by a judge, a magistrate, or under some circumstances a peace officer. See id. arts. 17.02, .05,
 .08, .ll, .15.

        Bail “bond forfeitures are unique creatures and, as such, the Texas Code of Criminal
Procedure devotes a special chapter to them.” Moore v. State, 828 S.W.2d 497, 498 (Tex.
App.-Dall,as     1992, writ refd). Code’of Criminal Procedure chapter 22 sets out the procedures
governing bail bond forfeitures. See TEX. CODE CRM. PROC. ANN. ch. 22 (Vernon 1989 & Supp.
2006). If a defendant whose appearance is secured by bail does not appear in court when his
personal appearance is required under the Code of Criminal Procedure, his name is called at the
courthouse door. See id arts. 22.01, .02 (Vernon 1989). If he does not appear within a reasonable
time, an interlocutory decree called ajudgment nisi* is entered against the defendant and his sureties.
See id. art. 22.02. A judicial decision describes the forfeiture procedure as follows:

                            Proceedings for the forfeiture ofbail formally commence with
                   the entry of a judgment nisi, by which the court acquires jurisdiction
                   to adjudicate the matter of enforcing the bond obligation. Ajudgment
                   nisi is an interlocutory, conditional judgment. It declares that a bond
                   is forfeited unless the defendant shows good cause for his failure to
                   appear in the court in which his case was pending and where his
                   presence was required.

Int’l Fid. Ins, Co. v. State, 71 S.W.3d 894, 896 (Tex. App.-Texarkana                       2002, no pet.) (citations
omitted).




           “‘The literal meaning of ‘judgment nisi’ is ‘judgment unless.’ It refers to the judgment that will stand unless
 ‘the adversely affected party appears and shows cause why it should be withdrawn.“’ Inr’l Fid. Ins. Co. Y. State, 71
 S.W.3d 894,896 n. 1 (Tex. App.-Texarkana      2002, no pet.) (quoting BLACK’S LAW DICTIONARY       1068 (7th ed. 1999)).
The Honorable Bruce Isaacks - Page 3                  (GA-0486)




        When the forfeiture has been declared,

                 the court or clerk shall docket the case upon the scire facias3 or upon
                 the civil docket, in the name of the State of Texas, as plaintiff, and the
                 principal and his sureties, if any, as defendants; and, except as
                 otherwise provided by this chapter, the proceedings had therein shall
                 be governed by the same rules governing other civil suits.

TEX. CODE Cm. PROC. Am. art. 22.10 (Vernon Supp. 2006) (footnote added). After the judgment
nisi is entered on the scire facias or civil docket, “a citation shall issue forthwith notifying the
sureties of the defendant, if any, that the bond has been forfeited, and requiring them to appear and
show cause why the judgment of forfeiture should not be made final.” Id. art. 22.03(a). By
presenting the bail bond and the judgment nisi to the trial court, the state makes a prima facie case
for forfeiture of the bond. See Alvarez v. State, 861 S.W.2d 878,880-81 (Tex. Crim. App. 1993)
(per curiam). The burden then shifts to the defendant or surety to prove that the state did not satisfy
a statutory requirement of the judgment nisi or to raise an affirmative defense. See id at 88 1. If the
principal and sureties do not show sufficient cause for the principal’s failure to appear, the judgment
becomes final against the principal and the sureties for the amount in which they are bound. See
TEX. CODE CR!M. PROC. ANN. art. 22.14 (Vernon 1989). The bail amount is collected by execution
as in civil actions, and the costs are divided between the sureties. See id.

         The Court of Criminal Appeals has held that “[clivil court costs may be assessed in a bail
bond forfeiture proceeding after entry of the judgment nisi,” but has not stated whether those costs
include filing fees. Dees v. State, 865 S.W.2d 461,462 (Tex. Grim. App. 1993); Stephens v. State,
99 S.W. 1122 (Tex. Crim. App. 1907). To determine whether the new $37 fee applies in a bond
forfeiture, we look to the plain and common meaning of the statute’s words. See Fitzgerald v.
AdvancedSpine Fixation Sys., Inc., 996 S.W.2d 864,865-66 (Tex. 1999); TEX. GOV’T CODE ANN.
5 3 11 ,011 (a) (Vernon 2005) (words and phrases shall be read in context and construed according to
the rules of grammar and common usage). We consider the language of Local Government Code
section 133.154(a) requiring collection of the $37 fee “on the filing of any civil suit.” TEX. LOC.
GOV’T CODE ANN. 5 133.154(a) (Vernon Supp. 2006).


        Although article 22.10 provides that civil rules govern all proceedings in the trial court
following judgment nisi, a bond forfeiture case is not a “civil case.” See Stute v. Sellers, 790 S.W.2d
316, 321 (Tex. Crim. App. 1990); accord Dees, 865 S.W.2d at 462. A ball bond forfeiture
proceeding is a criminal action governed by the rules of civil procedure after entry of the judgment
nisi. See Blue v. State, 341 SW.2d 917,919 (Tex. Crim. App. 1960). Both the Texas Supreme
Court and the Court of Criminal Appeals have held that an appeal from a bail bond forfeiture is a
criminal case that is within the jurisdiction of the Court of Criminal Appeals as established by article



          ““Scire f&as means a judicial writ, founded on sane matter of record, such as a judgment or recognizance,
and requiring the person against whom it is brought to show cause why the party bringing it should not have advantage
of such record.” Id. at S97 n.2. The name designates both the writ and the whole proceeding. Id;; see BLACK’SLAW
DICTIONAEY     1373 (8th ed. 2004) (scire facias is a Latin term of law which means “you are to make known, show cause”).
The Honorable Bruce Isaacks - Page 4          (GA-0486)




V, section 5 of the Texas Constitution. See Jeter v. State, 26 S.W. 49, 49 (Tex. 1894); Exparte
Burr, 185 S.W.3d 451,452-53 (Tex. Crim. App. 2006); see also TEX. CONST. art. V, 5 5(a).

         We accordingly conclude that a bail bond forfeiture is not a “civil suit” within Local
Government Code section 133.154(a). Thus, the $37 filing fee imposed by section 133.154(a) on
the tiling of any civil suit does not apply to bond forfeiture matters. Nor do Government Code
sections 101.062,101.083, and 101.123, whichrespectivelyprovide       that the clerkofa district court,
the clerk of a statutory county court, and the clerk of a county court shall collect the $37 filing fee
“onthe filing of acivil suit,” apply to bond forfeiture matters. TEX. GOV’TCODEANN. $5 101.062,
,083, .123 (Vernon Supp. 2006).

        You also ask whether any other fee included in House Bill 11 applies to bond forfeiture
matters. See Request Letter, supra note 1, at 2. House Bill 11 also adopted Local Government Code
section 133.105(a), which provides that:

                         A person convicted of any offense, other than an offense
                relating to a pedestrian or the parking of a motor vehicle, shall pay as
                a court cost, in addition to all other costs, a fee of $4 to be used for
                court-related purposes for the support of the judiciary.

TEX. Lot. GOV’T CODE ANN. $ 133.105(a) (Vernon Supp. 2006); see TEX. GOV’T CODE ANN. 5
102.022 (Vernon Supp. 2006) (requiring $4 payment pursuant to Local Government Code section
133.105). The $4 fee is to be paid by a person convicted of an offense, with specific exceptions.
The bail bond forfeiture proceeding does not lead to conviction of a criminal offense. Instead it may
result in a judgment against the defendant and his sureties for the amount in which they are bound.
See TEX. CODE GRIM.PROC. ANN. 5 22.14 (Vernon 1989) (bail amount is collected by execution as
in civil actions and costs are divided between the sureties). Thus, the $4 fee payable by a “person
convicted of any offense” does not apply when a bail bond is forfeited pursuant to Code of Criminal
Procedure chapter 22.
The Honorable Bruce Isaacks - Page 5         (GA-0486)




                                       SUMMARY

                       The $37 filing fee that Local Government Code section
               133.154(a) imposes does not apply in bail bond forfeiture matters
               because no civil suit is filed. The $4 fee that Local Government Code
               section 133.105 imposes does not apply in bail bond forfeiture
               matters because no one is convicted of any offense.




KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
