                                   The Attorney          General of Texas
                                                      .Ql,ril
                                                            16. 1986
   JIM MATTOX
   Attorney General

                                 Honorable Mike Dris~:oll          Opinion No. JM-522
  Supreme Court Building         Harris County Attorxy
  P. 0. Box 12546
  Austin. TX. 76711. 2546
                                 1001 Preston, suite 634           Re:    Whether a justice of the peace
  512/475-2501                   Htiuston.Texas   77~IO2           may accept personal checks in payment
  Telex 9101674-1387                                              'of fines, costs and/or judgments
  Telecopier   512,475.0266
                                 Dear Mr. Driscoll:
  714 Jackson, Suite 700
  Dallas, TX. 752024506               You ask several questions about the responsibilities of a justice
  214i742.8944                   of the peace in comection with the collection of fines, costs, and
                                 judgments.
  4624 Alberta Ave.. Suite 180
  El Paso, TX. 799052793
                                      A justice of the peace has authority to collect money payable
  915/533-3464                   under the Code of Criminal Procedure. Code Grim. Proc. art. 103.003.
                                 The code provides that all fines and other undertakings whereby a
                                 party becomes bound to pay the state "shall be collected in the lawful
,--I    Texas. Suite 700         money of the United States only." Code Grim. Proc. srt. 43.02
     ,Ston, TX. 77002.3111
                                 (emphasis added). Your first question is whether those statutes
  7131223-5666
                                 authorize a justice of the peace to accept a personal check in payment
                                 of fines, costs, and judgments payable to the state.
  808 Broadway, Suite 312
  Lubbock, TX. 79401.3479             A check is not itself money. See Muldrow V. Texas Frozen Foods,
  608/747-5236
                                 299 S.W.2d 275, 27i-78 (Tex. 1957).- A check is generally considered
                                 to be only conditional payment of an obligation, and mere delivery of
  4309 N. Tenth, Suite S         a check does not discharge an obligation. Meaders V. Biskamp, 316
  McAllen, TX. 76601-1685        S.W.2d 75, 77 (Tex. 1958); Muldrou, 299 S.W.2d at 277. A check that
  5121682~4547                   is honored by a payee bank, however, results in the receipt of money.
                                 See Muldrow, 299 S.W.2d at 278. Therefore, under article 43.02 a
  200 Main Plaza. Suite 400      justice of the pe,%ce may accept a personal check as conditional
  San Antonio, TX. 76205.2797    payment of fines, costs or judgments even though the check itself is
  512/225-4191                   not money.

  An Equal Opportunity/
                                      We note, howewr, that a public official is not bound to accept a
  Affirmative Action Employer    check. Muldrow, 290 S.W.Zd at 278. Also, because delivery of a check
                                 does not discharge 3 debt, a defendant is not discharged from payment
                                 of fines and costs :ifhis check is returned unpaid. See Code Grim.
                                 Proc. art. 43.01 (defendant is discharged from costs and fines when
                                 they are fully paid:l..

                                     Your second question is:

                                             May a justice of the peace discharge his lia-
                                          bility for the acceptance of-a worthless check in




                                                               p. 2398
.Bonorable Mike Driscoll - Pa:ge2      (JM-522)




           payment for fines, costs end judgments and for the
           issuance of his official receipt by using due
           diligence to collect same?

      Justices of the peace are accountable for fines they impose and
 judgments they render, and lthey must use due diligence in collecting
 such fines and judgments:

              Fines imposed end judgments rendered by
           justices of the peace shall be charged against the
           justice imposing 1or rendering the same. He may
           discharge indebtc:dnessby 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 usme without avail, or that the
           same have been satisfied by imprisonment or labor.

 V.T.C.S. art. 1619. Your question seems to suggest that a justice of
 the peace incurs a liability other than his liability under article
 1619 if he accepts a check that is not honored. This is not so. As
 far as his own accountability is concerned, a justice of the peace is
 in the same position after he accepts a worthless check from a
 defendant as he is when ha! has received nothing from the defendant.
 His liability stems from ilrticle 1619, not from his acceptance of a
 check. In order to discharge his liability under article 1619 a
 justice of the peace must issue "any and all writs allowed by law to
 enforce collection" of fines and judgments. -   See Attorney General
 Opinions JM-517 (1986); O-6740 (1945).

      Your question also indicates concern about the effect of giving a
 defendant a receipt for a check that is later dishonored. A receipt
 merely signifies that the rlerty giving the receipt has received the
 article mentioned in the receipt. State v. Watkins, 87 S.W.2d 184,
 188 (MO. 1935). It is nothing more than evidence that something was
 received, and it is subject to dispute by parol evidence. Humphries
 V. Colorado Life Co., 170 S.W.2d 315, 318 (Tex. Civ. App. - El Paso
 1942. writ ref'd). Your question assumes that s justice of the peace
 becomes liable for payment of a check simply because he gives a
 receipt for the check. 'Zou offer and we find no basis for that
 assumption. Again, the l.iability of a justice of the peace for
 payment of a fine is the liability provided for in article 1619.
 Article 1619 does not make a justice of the peace a guarantor of a
 check he accepts.    See Nuldrow,
                      -   ---       299 S.W.2d at 278 (when check for
 taxes is returned unpaid, secretary of state should cancel record of
 payment and take further st.epsto collect taxes). Of course, to avoid
 disputes over whether payment was in fact made, it would be wise for
 an official giving a receipt for a check to note on the receipt that
 it is for a check and that the check does not discharge an obligation
 unless it is paid in full.




                                    p. 2399
Honorable Mike Driscoll - Eage 3 (JM-522)




     Your final question is whether article 1656a. V.T.C.S., gives the
Harris County Auditor authority to prohibit a justice of the peace
from accepting personal checks. Article 1656a provides:

           The County Auditor in counties having a popula-
        tion of one hund;xninety      thousand (190,000) or
        more according to the last preceding or any future
        Federal Census she,11prescribe the system of accoun-
        ting for the co;;;;%and the forms to be used by the
        District Clerk, tf,eDistrict Attorney and all county
        and precinct offjTc:ersend by all persons in the
        collection and disbursement of county revenues,
        funds, fees, and all other moneys collected in an
        official capacity%hether belonging to the county,
        its subdivisions cr precincts, or to, or for the use
        or benefit of, an:,person, firm, or corporation; he
        shell prescribe the mode and manner in which the
        District Clerk, the District Attorney and all county
        and precinct officers shall keep their accounts, end
        he shell have the power to require all officers to
        furnish monthly, annual, or other reports under oath
        of all moneys, tsxee. or fees of every nature
        received, disbursed, or remaining on hand; end in
        connection with such reports he shall have the right
        to count the cash on hand with such officer, or to
        verify the amount on deposit in the bank in which
        such officer may ‘have placed the same for safe-
        keeping. He sha:t:t  have the power to adopt and
        enforce such reg&tions    not inconsistent with the
        Constitution and Laws es he may deem essential to
        the speedy and pr'oper collection and checking of,
        and accounting for; the revenues and other funds and
        fees belonging to the county or to any person, firm,
        or corporation fa; whom any of said officers may
        have made collect:E,ns,or for whose use or benefit
        they may have rec#?zd or may hold such funds. All
        of the fees, commissions, funds, and moneys herein
        referred to shal:t be turned over     to the County
        Treasurer by suck, officer as collected, and such
        money shall be deposited in the county depository in
        a special fund to the credit of such officer and
        draw interest for ,thebenefit of the county, which
        funds, when so deposited in such depository, shall
        be secured by the bond of such depository. There-
        after the officer, may draw checks on the County
        Treasurer to disburse said funds in the payment of
        salaries end expenses authorized by law or in
        payment to the county or to the persons, firms, or
        corporations to rhom said funds may belong. The
        Treasurer end the depository shall make no payment
        unless such check is countersigned by the County


                                p. 2400
Honorable Mike Driscoll - Page 4    (JR-522)




        Auditor.   The deposit of funds in the County
        Treasury shall not in any wise change the ownership
        of any fund so df:posited except to indemnify said
        officer and his bondsmen or other owners of such
        funds for such fun,ds during the period of deposit
        with the county. At the close of any fiscal year or
        accounting period amowor hereafter fixed by law, the
        County Auditor sh;Ll audit, adjust, and settle the
        accounts of such officer. In the event the County
        Auditor shall be unable to obtain proper reports or
        an adequate accounting from any District Attorney,
        District Clerk, county or precinct officer as herein
        provided, either during or after his term of office,
        the County Auditor shall have authority to enforce
        an accounting thereof, and to take such steps at the
        expense of the cornty as are necessary in his judg-
        ment to protect tre interests of the county or of
        the persons. firms, or corporations entitled to such
        funds. (Emphasis added).

     We conclude that the Narris County Auditor does not have the
authority to prohibit justices of the peace from accepting checks.
Article 1656a does not permit a county auditor to make rules contrary
to law. and the Texas Supreme Court has held that a public official
may accept a check as coniitional payment for an obligation that is
statutorily required to be paid in money. Muldrow v. Texas Frozen
Foods, 299 S.W.2d 275 (Tex. 1957). Also, we think that the duties and
obligations of a county auditor under article 1656a concern record-
keeping and handling of fur.ds. We do not think that a prohibition on
the acceptance of checks is within that grant of authority.

                            SUMMARY

            Under article 43.02 of the Code of Criminal
         Procedure, a justice of the peace may, but is not
         required to, accs:pta check in payment of fines,
         costs, and judgments. When a justice of the peace
         imposes a fine, he is liable for the amount of the
         fine. He may satisfy that liability by issuing
         any writs available to enforce the judgment. The
         Harris County Auditor may not prohibit county and
         precinct officers from accepting checks.




                                         JIM     MATTOX
                                         Attorney General of Texas




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c       Honorable Mike Driscoll - Page 5    (3~~522)
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    P




        JACK HIGHTOWER
        First Assistant Attorney Gmeral

        MARY KELLER
        Executive Assistant Attorney General

        RICK GILPIN
        Chairman, Opinion Comittec!

        Prepared by Sarah Woelk
        Assistant Attorney General




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