    OFFICE
        OFTHE
            ATTORNEY
                  GENERAL.
                       STATE
                           OFTEXAS
    JOHN CORNYN




                                          March 17,200O



The Honorable Tim Curry                            Opinion No. X-0195
Tarrant County Criminal District Attorney
401 West B&nap                                     Re: Whether a county sheriff is authorized to
Fort Worth, Texas 76196-0201                       manage and dispose of cash bail bond money for
                                                   untiled criminal cases, and related questions
                                                   (RQ-0117-X)


Dear Mr. Curry:

         You ask about the maintenance and disposition of cash bail bonds for criminal “no-filed”
cases, and the disposition of unclaimed liquidated certificates of deposit held as security for the
execution ofbail bonds. Specifically, you first ask whether the Tarrant County Sheriff (the “sheriff’)
is required to forward cash bail bonds for unfiled cases to the district or county clerk for deposit in
the county trust depository.    Second, if the sheriff is not required to do so, you ask whether the
sheriff is authorized to maintain the funds in a separate interest bearing account at the county
depository. Third, you ask whether the county auditor must be a signatory on that account. Fourth,
you ask whether the sheriff may disburse these funds to known defendants against whom no case
is filed. Fifth, you ask whether no-tiled case cash bail bonds become abandoned property subject
to chapter 74 of the Property Code when the defendant cannot be found; and, if so, you also ask
about the application of certain provisions of the Property Code dealing with abandoned property.
Sixth, you ask whether liquidated certificates of deposit given as security for the execution of bail
bonds become abandoned property subject to chapter 74 when the bondsmen or attorneys who
deposited them cannot be found; and, if so, you also ask about the application of certain provisions
of the Property Code. Finally, you ask whether all interest earnings on the no-tiled case cash bail
bonds and the liquidated certificates of deposit must be returned to the depositors. See Letter from
Honorable Tim Curry, Tarrant County Criminal District Attorney, to Honorable John Comyn, Texas
 Attorney General (Sept. 27,1999) (on file with Opinion Committee) [hereinafter “Request Letter”].

         To provide a context for your questions regarding no-tiled case cash bail bonds, we briefly
review the statutory scheme governing the taking ofbail bonds. A bail bond is a written undertaking
binding a defendant in custody to appear before a court or a magistrate to answer a criminal
accusation. See TEX. CODEGRIM.PROC.ANN. art. 17.02 (Vernon 1977). The bond is in a specific
amount and must be executed by the defendant and his or her surety. See id. The surety is often,
but not always, a professional bondsman. See Tex. Att’y Gen. Op. No. JC-0024 (1999) at 1. In lieu
of having a surety, a defendant may deposit cash with the custodian of the court in which the
defendant’s case is pending. See TEX. CODEGRIM.PROC.ANN. art 17.02 (Vernon 1977). Such cash
The Honorable Tim Curry - Page 2                  (X-0195)




deposits are “cash bail bonds.” Melton v. State, 993 S.W.2d 95,9~7 (Tex. 1999). They are returned
to the defendant if he or she complies with the conditions of the bond “and upon order of the court.”
TEX. CODEGRIM.PROC.ANN. art 17.02 (Vernon 1977). Once the required bail is given either to a
magistrate, a court, or “the officer having him in custody,” the defendant must be set free. Id, art.
 17.29 (Vernon Supp. 2000).

         Under article 17.02 of the Code of Criminal Procedure, cash bail bonds are “receipted for by
the officer receiving the same.” Id. art 17.02 (Vernon 1977). Article 17.05 provides that a peace
officer may “take” bail from the defendant if authorized by articles 17.20, 17.21, or 17.22 of the
Code of Criminal Procedure. See id. art 17.05. Article 17.20 provides that a sheriff, “or other peace
officer, in cases of misdemeanor, may, whether during the term ofthe court or in vacation,” take bail
bond from a defendant the officer has in custody. Id. art. 17.20. Article 17.22 permits a sheriff or
“other peace officer” having a defendant in custody in a felony case to take bail if the court before
which the case is pending is not in session. Id. art. 17.22. And, article 17.21 permits a sheriff or
other peace officer “unless it be the police of a city” to take bail from the defendant in the officer’s
custody even when the court in which the prosecution is pending is in session. Id. art. 17.21.
Because of these provisions allowing a sheriff or another peace officer to take cash bail bonds,
Attorney General Opinion C-740 determined that the article 17.02 officers authorized to “receipt”
cash deposits include peace officers “as well as the custodian of funds of the court in which the
prosecution is pending, which would be the clerk of the court or a justice of the peace.” Tex. Att’y
Gen. Op. No. C-740 (1966) at 4.

        The receipted cash bail bonds, however, must be deposited “with the custodian of funds of
the court in which the prosecution is pending.” Id. And the sheriff or another peace officer,
according to Attorney General Opinion C-740, is neither an authorized nor appropriate custodian.
See id. Accordingly, the opinion advised, a sheriff should simply receipt the cash bonds and turn
over the money to the authorized custodian, namely, the clerk of the court or the justice of the peace
as appropriate. See id.; see also Tex. Att’y Gen. Gp. No. H-183 (1973) at 10 (sheriffto deposit cash
bail bonds with district clerk or county clerk) (citing Attorney General Opinion C-740).

         Your first five questions relate to cash bail bonds accepted and receipted by the sheriff. You
explain that before a case is tiled, the cash bonds are initially deposited in the Tarrant County
Sheriffs Trust Fund Account (the “Trust Account”), a separate interest bearing account managed
by the sheriff, because they cannot be deposited in the registry of a court given that no court case is
yet tiled. When the Office ofthe Criminal District Attorney in Tarrant County (the “D.A.‘s office”)
tiles a criminal case against a defendant, the cash bond is forwarded to the court registry. The cash
bond remains in the Trust Account, however, when the D.A.‘s office does not tile a case against the
defendant from whom the cash bond was taken. If no case is filed, the D.A.‘s office sends to the
defendant and the sheriff a “no-file letter.” When a“no-tile letter” is issued, the sheriffs department
attempts to locate that defendant. If he or she is found, the department releases the cash bond to the
defendant; otherwise it remains in the Trust Account. See Request Letter at l-2.
The Honorable   Tim Curry - Page 3                 (JC-0195)




         We understand you to ask first whether the sheriff is required to forward the no-filed case
cash bail bonds to the district or county clerk for deposit in the county trust depository. We conclude
in the negative because the statutory provisions requiring a sheriff to forward the cash bail bonds to
the county or district clerk for deposit in the county trust depository are inapplicable when no case
is tiled against a defendant.

        First, article 17.02 ofthe Code ofCriminalProcedurerequiringthedeposit        ofcashbailbonds
with the clerk of the court or the justice of the peace as “custodian of funds of the court in which the
prosecution ispending,” is premised on filing of acriminal case. Attorney General Opinion C-740’s
determination that the sheriff must turn over the funds to the court custodian is similarly premised
on the filing of a case and the involvement of a court:

                 [T]he officer receiving the cash, ifhe is not the custodian ofthe funds
                of the court, should deposit the sum of money received with the
                custodian.     We are of the opinion that there is no necessity or
                 authority for a court to appoint a sheriff as custodian of the funds
                 since the clerk of the court or the justice of the peace, as the case may
                be, is already charged with that duty. The sheriff or other peace
                 officer accepting the cash bond should simply receipt the bond to the
                 defendant and then turn the money over to the clerk of the court or the
                justice of the peace, whichever is the appropriate officer. FVenote
                however that if the court in which the cash bond is given does not
                have jurisdiction to ty the defendant, the cash bond should be
                transferred to the clerk of the court that has such jurisdiction.

Tex. Att’y Gen. Op. No. C-740 (1966) at 4-5 (emphasis added). Clearly if no case is tiled, there is
no court custodian with whom the funds may be deposited.

         Second, when funds are not deposited with a court, chapter 117 of the Local Government
Code, dealing with the deposit and management of court registry trust funds, including cash bail
bonds, is inapplicable. Chapter 117 applies only to trust funds held by the district or county clerk
and not to trust funds held by other county officials. See Tex. Att’y Gen. Op. No. DM-396 (1996)
at 5 n.7; 35 DAVID B. BROOKS,TEXAS PRACTICE:COUNTYAND SPECIALDISTRICTLAW 5 14.11
(1989). Section 11,7.052 requires a county clerk or a district clerk, who is to have for more than
three days legal custody of money deposited in the registry of the court pending the result of a legal
proceeding, including cash bail bonds, to deposit the money in the county’s depository bank for trust
funds if the county has selected one. See TEX. Lot. GOV’T CODEANN. 5 117.052(a), (c) (Vernon
 1999). Because the cash bail bonds in question are not deposited in the court registry and held by
the district or county clerk, chapter 117 does not, by its terms, apply to them.

       In short, article 17.02 of the Code of Criminal Procedure and chapter 117 of the Local
Government Code do not govern the deposit of cash bail bonds accepted by a sheriff from a
The Honorable Tim Curry - Page 4                     (JC-0195)




defendant when no case is filed against that defendant. Accordingly, the sheriff is not required to
forward the funds to the county clerk or district clerk for deposit in the county’s trust depository.

        You next ask whether the sheriff is authorized to maintain the funds in a separate interest
bearing account at the county depository. See Request Letter at 3. We conclude in the affirmative.

         Chapter 117 of the Local Government Code provides for a county trust depository where
court registry trust funds must be deposited. Chapter 116 of the Local Government Code, on the
other hand, provides for a general county depository where county funds and funds under the control
of county officials must ordinarily be deposited. See TEX. Lot. GOV’T CODE ANN. $ 116.002
(Vernon 1999); Tex. Att’y Gen. Op. No. H-l 185 (1978); 35 DAVID B. BROOKS, TEXAS PRACTICE:
COUNTYAND SPECIALDISTFZCTLAW § 14.5 (1989). The county depository is a bank selected and
designated as such under chapter 116. See TEX. Lot. GOV’TCODEANN. 5 116.021 (Vernon 1999).
Chapter 116 of the Local Government Code generally requires the commissioners court of a county
to contract with one or more banks in the county for the deposit ofthe county’s public funds selected
in accordance with the specified procedures. See id. $5 116.021-,027. Funds deposited with the
bank selected are secured by the bank’s pledge of a personal bond, surety bond, securities,
mortgages, real property, or a combination ofthe enumerated items. See id. 3 116.051. The county
treasury is an account or fund in which generally county funds must be deposited and maintained
at the county depository bank. See generally id. $5 113.001-,024 (Vernon 1999 & Supp. 2000).
Your request letter indicates that the Trust Account is maintained at the county depository.       We
believe the sheriff may maintain the Trust Account as a separate interest bearing account managed
by the sheriff for the following reasons.

         First, the sheriff is impliedly authorized to hold and manage the cash bail bonds when they
cannot be deposited with a court. As previously discussed, a sheriff is expressly authorized to accept
and “receipt for” cash bail bonds. See TEX. CODE CRIM. PROC. ANN. arts. 17.02, .05, .20, .21 .22
(Vernon 1977); Tex. Att’y Gen. Op. No. C-740 (1966) at 4. Additionally, a sheriff is required to
keep an account of bail transactions. See TEX. CODE GRIM. PROC. ANN. art. 17.39 (Vernon Supp.
2000); Tex. Att’y Gen. Op. No. JM-856 (1988) at 3. Moreover, based on these duties, a sheriff in
turn is liable for cash shortages in the cash bail bonds accepted or collected. See Tex. Att’y Gen. Op.
Nos. JM-856 (1988) at 4-5, H-751(1975) at l-2. These statutory duties with respect to cash bail
bonds necessarily require a sheriff to hold and provide for the safekeeping of the funds before they
are forwarded and deposited with the clerk of the court in which the prosecution is pending in the
usual circumstances.       Similarly, we believe they also necessarily obligate the sheriff to hold and
provide for the safekeeping of those funds when there is no court with which the funds may be
deposited because no case is filed.

        Second, chapter 116 of the Local Government Code contains no express provision regarding
the deposit of funds in a separate account or an interest bearing account.’ In an analogous situation,


        ‘But cMCII~~ more than one account may be maintained at the county depository. See, e.g., Tex. &‘y Gen.
                                                                                                  (continued...)
The Honorable Tim Curry - Page 5                          (X-0195)




Attorney General Opinion DM-282 determined that in the absence of a statutory or regulatory
direction, a sheriff in the exercise of his or her discretion was authorized to keep jail inmate funds
in a separate interest bearing account. See Tex. Att’y Gen. Op. No. DM-282 (1994) at 4. Similarly,
we conclude here that in the absence of statutory direction, a sheriff in the exercise of the authority
to hold and manage no-filed case cash bail bonds may keep those funds in a separate interest bearing
account at the county depository. See id.

         You next ask: “Because the county auditor, acting as county treasurer, does not have
signatory authority over the account although the account is listed as collateralized in the Tarrant
County depository bank agreement, would this account be considered a county depository?’
Request Letter at 2. Again, we understand that the Trust Account is maintained at the county
depository and secured by the depository bank’s collateral. The fact that the Tarrant County Auditor
does not have signatory authority does not remove the Trust Account from the county depository.
Clearly, more than one account may be maintained at the county depository bank, and funds may
be maintained at the county depository that are outside the county treasury account. See, e.g., Tex.
Att’y Gen. Op. No. H-183 (1973) at 9 (possible that taxes collected by tax assessor-collector for
various governmental bodies in addition to county will be in non-treasury account in county
depository). Based on your questions, we assume the Trust Account is an account outside of the
county treasury account. The county auditor is generally required to countersign checks and
warrants drawn against the county treasury. See id.; see also Tex. Att’y Gen. Op. No. m-882
(1988) (neither signature of county treasurer or auditor required to withdraw court registry trust
funds because funds do not belong to county). We are not aware of any requirement that the county
auditor or the treasurer must have signatory authority in order for an account to be maintained in the
county depository.

         While the county auditor need not be a signatory on the Trust Account, the county auditor
may require that the county auditor be a signatory pursuant to that officer’s authority to prescribe
procedures to be used by all county officers. See TEX. LOC. Gov’~ CODEANN. 3 112.002 (Vernon
Supp. 2000); see also Tex. Att’y Gen. Op. No. H-183 (1973) at 9 ( county auditor may require
countersignature on trust fund account in county depository). A sheriffs authority to maintain the
separate interest bearing account may be limited by the county auditor, who “may adopt and enforce



         ‘(...continued)
Op. No. H-183 (1973) (possible that taxes collected by tax assessor-collector for various governmental bodies in
addition to county will be in non-treasury account in county depository). Additionally, chapter 116 clearly contemplates
that funds deposited at the county depository may bear interest. Section 116.111 authorizes the commissioners court
to determine and designate the amount of funds that may be in interest bearing “time deposits,” see Tex. Att’y Gen. Op.
No. JM-1162 (1990) at 3-4 (funds placed in time deposits generate interest). Tex. Lot. GOV’TCODEANN. $ 116.111
(Vernon 1999). Finally, it is certainly possible for different accamts maintained at the county depository to be managed
and controlled by particular entities or officers. See, e.g., TEX. Lot. GOV’TCODEANN. 5 140.003(f) (Vernon 1999)
(specialized local entity required to deposit in county treasury funds received; county required to “hold, deposit,
disburse, invest, and otherwise care for the funds on behalf of the specialized local entity as the entity directs); Tex.
Att’y Gen. Op. No. DM-460 (1997) at 4-5 (juvenile board rather than commissioners court has control CWI
disbursement of board’s funds deposited in county txasury pursuant to section 140.003).
The Honorable Tim Curry - Page 6                  (X-0195)




regulations   . . that the auditor considers necessary for the speedy and proper collecting, checking,
and accounting of the revenues and other funds and fees that belong to the county or to a person
for whose use or benefit the [county or precinct] officer holds or has received funds.” TEX. Lot.
GOV’T CODE ANN. 9 112.002(b) (V emon Supp. 2000). See Tex. Att’y Gen. Op. Nos. DM-282
(1994) at 4-5 (sheriffs discretion to maintain separate interest bearing account for jail inmate funds
may be limited by auditor’s authority under section 112.002(b)); IM-1162 (1990) at 3 (county
auditor under section 112.002 may require clerk to place trust funds in separate accounts); H-183
(1973) at 9 (predecessor statute to section 112.002(b) permits county auditor to require certain
accounting procedures with respect to trust funds).

        You next ask whether the “sheriffs department [has] the authority to return the cash bond
monies received and placed into the Sheriffs Department Trust Fund Account to defendants whose
criminal cases have been ‘no-filed’ by the District Attorney’s Office.” Request Letter at 2. We
conclude in the affirmative.

         The sheriff holds the cash bail bonds only as a bailee and, thus, the common-law bailment
principles apply to the holding of the cash bail bonds. The elements of bailment are (1) delivery of
personal property for specific purpose, (2) acceptance by transferee of delivery, (3) agreement that
purpose will be fulfilled, and (4) understanding that property will be returned to the transferor. See,
e.g. Sears, Roebuck and Co. v. Wilson, 963 S.W.2d 166, 168-69 (Tex. App.-Fort Worth 1998, no
pet.). Once the purpose of the bailment is fulfilled, the bailee is obligated to return the bailed
property to the bailor. See English v. Dhane, 294 S.W.2d 709,711 (Tex. 1956).

         A cash bail bond accepted by the sheriff secures the appearance of the defendant in court or
before a magistrate to answer any accusations against him or her. See TEX. CODEGRIM.PROC.ANN.
arts. 17.01, .02. (Vernon 1977). In the usual case, cash bail bonds must be refunded to the defendant
if and when the defendant complies with the conditions of the bond, and upon a court order. See id.
art. 17.02; see also Tex. Att’y Gen. Op. No. KM-856 (1988) at 3 (refunding defendant’s bond money
upon defendant’s compliance with conditions of his or her bond among sheriffs statutory duties).
When there is no prosecution, the cash bond is unnecessary to secure the defendant’s appearance.
And, of course, there are no conditions of the bond with which the defendant must comply to be
entitled to the return of the cash bond. Thus, under the common-law principles of bailment, the
sheriff must return the cash bail bond money to the defendant when no case is tiled against the
defendant. Accordingly, we conclude that if no case is tiled, the sheriff is impliedly authorized to
return and, indeed, must return, the funds to the defendant.

         You next ask “if the defendant cannot be found, are the cash bond proceeds for criminal cases
not filed by the District Attorney’s Office considered abandoned property[?]” Request Letter at 2.
If “considered abandoned property,” you also ask additional questions regarding the application of
certain provisions of the Property Code dealing with abandoned property. See id. at 2-3.

        Chapter 74 of the Property Code governs property that is presumed abandoned, and “is
designed to provide a means for absent owners to reclaim their property.” Melton v. State, 993
The Honorable   Tim Curry - Page 7               (X-0195)




S.W.2d 95,97 (Tex. 1999). In furtherance ofthat purpose, chapter 74 sets out a procedure whereby
persons holding property that is presumed abandoned pursuant to chapters 72, 73, or 75 of the
Property Code must annually report and deliver such property to the Comptroller of Public
Accounts. See TEX. PROP.CODE ANN. $5 74.001, ,101, ,301 (Vernon Supp. 2000). In general,
personal property is presumed abandoned if after a three-year period (the “dormancy period”)

                (1) the existence and location of the owner of the property        is
                unknown to the holder of the property; and

                (2) according to the knowledge and records of the holder of the
                property, a claim to the property has not been asserted or an act of
                ownership of the property has not been exercised.

TEX. PROP. CODEANN. 5 72.101 (Vernon 1995).


         In Melton v. State, the Texas Supreme Court held that: (1) unclaimed cash bail bonds
become abandoned property subject to chapter 74 three years from the date of final judgment in the
underlying criminal prosecution; (2) county clerk is a “holder” required to report and deliver the
abandoned cash bonds to the Comptroller of Public Accounts; and (3) a court order is necessary to
trigger the clerk’s duty to deliver such cash bonds to the Comptroller of Public Accounts, but not
to trigger the clerk’s duty to report them. See Melton, 993 S.W.2d at 97.

        Chapter 72 sets out the general provisions regarding abandoned personal property. It applies
broadly to personal property whose owners are unknown or cannot be located and that is presumed
abandoned under chapter 72. See TEX. PROP.CODE ANN. 5 72.001 (Vernon 1995). Property
presumed abandoned under chapter 72 is subject to the provisions of chapter 74 of the Property
Code. See id. 5 72.001(d). Under Melton, unclaimed cash bail bonds may become abandoned
property subject to chapter 74. Accordingly, we conclude that unclaimed no-tiled case cash bail
bonds held by the sheriff may become abandoned property subject to chapter 74 of the Property
Code.

         We do not believe that Melton’s holding limits application of chapter 74 to cash bail bonds
deposited into the court registry and maintained in the county trust depository as you appear to
suggest. Nothing in the opinion so indicates. Because the cash bail bonds in that case were court
registry funds subject to article 17.02 of the Code of Criminal Procedure and chapter 117 of the
Local Government Code, the specific statutory requirements of article 17.02 and chapter 117
applied. Accordingly, (1) the county or district clerk as custodian ofthe funds was required to report
and deliver unclaimed funds to the Comptroller of Public Accounts, see TEX. Lot. GOV’T CODE
ANN. $5 117.002, .052(c)(6), .0521 (Vernon 1999); (2) the dormancy period for such fimds
commenced on the date of entry of final judgment or order of dismissal, see id. 5 117.002(l); and
(3) the funds could be transferred to the Comptroller of Public Accounts only upon an order of the
court with proper jurisdiction, see id. 117.053(b); TEX. CODE GRIM.PROC.ANN. art. 17.02. See
Melton 993 S.W.2d at 99-102. The fact that theMelton holding regarding the application of specific
The Honorable Tim Curry - Page 8                   (JC-0195)




provisions of chapter 74 in light ofthe article 17.02 and chapter 117 requirements cannot be applied
to unclaimed no-filed case cash bail bonds not deposited into a court registry has no bearing on
whether chapter 74 applies. It simply means that, with respect to cash bail bonds not deposited in
a court registry, the issues of dormancy and custodianship must be determined according to other
criteria.

        You next ask: “when does the three year dormancy period commence and whose
responsibility and/or duty is it to report and deliver these funds to the comptroller?’ Request Letter
at 3.

         Chapter 74 does not specifically provide when the three-year dormancy period begins for the
purposes ofdetermining when the unclaimed cash bail bonds are presumed abandoned, nor does any
other statute that we have found. Obviously the date of a final judgment or order of dismissal cannot
serve as the relevant date given that no case is filed. It does, however, guide us in determining the
relevant date here. A final judgment or dismissal terminates the pending prosecution and the need
for the cash bail bond to ensure the defendant’s appearance in court. At that time, the defendant is
entitled to request the return of the bail bonds, Here, the “no-tile letter” that the D.A.‘s office sends
to the sheriff and the defendant stating that no case will be tiled against the defendant operates
similarly and has a similar effect. Like a final judgment or order of dismissal, the no-file letter
terminates possible prosecution and, thus, the necessity for the bond to secure the defendant’s
appearance to answer any accusations.         Thus, on the date of the no-tile letter, the defendant is
entitled to return of the cash bail bond and the three-year dormancy period commences. Unclaimed
cash bail bonds held by the sheriffbecome abandoned property subject to chapter 74 after three years
from the date of the no-tile letter.

        Chapter 72 of the Property Code requires a “holder” of property presumed abandoned to
comply with the procedures of chapter 74. See TEX. PROP. CODE ANN. 9 72.001(d) (Vernon 1995).
A “holder” is a person who is (1) in possession of property that belongs to another, (2) a trustee, or
(3) indebted to another on an obligation. Id. 5 72.001(e). Under the first definition, personal
physical possession is not required to be a “holder.” See Melton, 993 S.W.2d at 101 (disagreeing
with county clerk’s argument that clerk was not a holder because he did not have personal physical
possession of bonds). Because the sheriff holds and manages the cash bail bonds belonging to the
defendants who tendered them, the sheriffis a “holder” for the purposes ofchapter 74. Accordingly,
the sheriff must comply with the procedures set out in chapter 74 of the Property Code.

          You next ask about the disposition of approximately $90,766 in unclaimed liquidated
certificates of deposit also held in the Trust Account. You explain that the certificates were once
used as collateral for bail bondsmen and attorneys who wrote bail bonds in Tarrant County, but who
do not now write bail bonds and cannot be located. We understand you to ask first whether the cash
is subject to chapter 74. Assuming it is subject to chapter 74, you next ask when the three-year
dormancy period begins with respect to the cash. See Request Letter at 3.
TheHonorableTimCurry         - Page 9              (JC-0195)




          Chapter 1704 of the Occupations Code creates a county bail bond board in all counties with
a population of 110,000 or more. See TEX. OCC. CODE ANN. 5 1704.05 1 (Vernon 2000). The board
licenses and regulates the bonding business in such a county. See id. 5 1704.101. In a county
governed by chapter 1704, no person may act as a bondsman in the county except a person who is
licensed under chapter 1704 or, in certain limited circumstances, attorneys. See id. $5 1704.151,
 ,163. A person must apply for a license and, upon conditional approval of the application, an
 applicant must (1) if an individual “deposit with the county treasurer a cashier’s check, certificate
of deposit, cash, or cash equivalent” or (2) if a corporation, “provide to the sheriff an irrevocable
 letter of credit.” Id. 4 1704.160(a) (emphasis added). The deposited security is used to pay a final
judgment on a forfeiture of a bail bond that the licensee has executed if the licensee fails to pay it
 thirty days after the date of the judgment. See id. 5 1704.204; see also 5 1704.203(k) as added by
 Act of May 25, 1999,76th Leg., R.S., ch. 1096,s 1, 1999 Tex. Gen. Laws 3962, 3963, amending
 TEX. REV. CIV. STAT. ANN. art. 2372p-3 without reference to repeal ofarticle 2372p-3 by Act ofMay
 13,1999,76th      Leg., R.S., ch. 388,s 6,1999 Tex. Gen. Laws 1431,244O. Tarrant County, having
 a population in excess of 110,000, is governed by chapter 1704. See I BUREAU OFTHECENSUS,US.
 DEP’T OF COMMERCE, 1990 CENSUS OF POPULATION:General Characteristics: Texas 4 (1992).

          Before turning to your questions, we make the following two observations. First, the sheriff
is not authorized by the Occupations Code to take deposits of certificates of deposit as security from
licensed bondsmen. Such security is required to be deposited with the county treasurer. See TEX.
OCC. CODE ANN. 5 1704.160(a) (Vernon 2000). Second, the sheriff is not authorized to take
certificates of deposit from attorneys executing bail bonds. Chapter 1704 does not require attorneys
otherwise exempt from its licensing requirements to deposit any security. And articles 17.11,17.13,
and 17.14 of the Code of Criminal Procedure, governing the sheriffs authority with respect to the
sufficiency of security offered by attorneys exempt from chapter 1704’s licensing requirements, do
not authorize the sheriff to require the pledge of collateral by an attorney acting as surety. See
Castaneda v. Gonzalez, 985 S.W.2d 500,503 (Tex. App.Xorpus Christi 1998, pet. denied ); Tex.
Att’y Gen. Op. Nos. JC-0019 (1999) at 2, DM-483 (1998) at 7.

         Turning to your first question, we conclude that unclaimed liquidated certificates     of deposit
may become abandoned property subject to chapter 74 of the Property Code. The                  unclaimed
liquidated certificates of deposit are personal property. Personal property presumed          abandoned
under chapter 72 is subject to the provisions of chapter 74 of the Property Code. See         TEX. PROP.
CODE ANN. $5 72.001(a), (d) (Vernon 1995).

          We consider next the date on whichthe dormancy period for unclaimed liquidated certificates
of deposit commences.        While no statute establishes this date, we believe that the three-year
dormancy period must commence on the date the deposit is no longer required as security under the
statutory scheme.      Under chapter 1704 of the Occupations Code, a bondsman who deposits
certificates of deposit as security for executing bail bonds is entitled to request the return ofthe funds
when the licensee (1) ceases the bond writing business, (2) ceases to maintain his or her bail bond
license, (3) presents a release by the county bail bond board, and (4) no judgment or bond liability,
actual or potential, is outstanding against the licensee. See TEX. OCC. CODE ANN. 5 1704.210
TheHonorableTimCuny          - Page 10            (JC-0195)




(Vernon 2000); see also id. 5 1704.203(k) as added by Act of May 25, 1999, 76th Leg., R.S., ch.
 1096, 5 1, 1999 Tex. Gen. Laws 3962, 3963. As this provision indicates, a deposit is no longer
necessary when the bondsman’s license has expired (and the bondsman is precluded from acting as
a bondsman) and there are no judgments or bonds outstanding against the licensee that the deposit
might be needed to satisfy. Such judgments and bonds may remain outstanding for some time after
the bondsman’s license expires. Therefore, we conclude that the dormancy date for these liquidated
certificates of deposit commences as of the date the bondsman’s license has expired and no
judgments or bonds are outstanding. A liquidated certificate ofdeposit becomes abandoned property
three years after this date.

        Finally, we understand you to ask whether all interest earnings on the no-tiled case cash bail
bonds and on the liquidated certificates of deposit earned while in the Trust Account must be
returned to the depositors. We conclude in the affirmative.

         As a general rule, interest follows principal. See Phillips Y. Washington Legal Found., 524
U.S. 156, 165-66 (1998); Sellers v. Harris County, 483 S.W.2d 242, 243 (Tex. 1972). Interest
earned on funds held in trust for private parties accrues to the fund and the owners of the fund. See
Phillips, 524 U.S. at 172; Sellers, 483 S.W.2d at 243. A governmental body may impose a fee and
transfer to the governmental body interest reasonably related to its services in safeguarding and
investing the principal. See Phillips, 524 U.S. at 171 (“Our holding [that IOLTA interest belongs
to private owners of principal] does not prohibit a State from imposing reasonable fees it incurs in
generating and allocating interest income.“) (emphasis added); Sellers, 483 S.W.2d at 244 (“By
depriving the owner of a sum not reasonably related to the value of the county’s services in
safeguarding and investing the principal, the statute [statutory predecessor to section 117.054 of the
Local Government Code] offends Article I, section 19 of the Texas Constitution           as well as the
Fourteenth Amendment of the United States Constitution.“).

         Thus, interest accruing to the cash bail bonds accrues to the principal of the bonds and their
owners. Furthermore, under article 17.02 of the Code of Criminal Procedure, all funds deposited
as a cash bail bond must be remnded to the defendant once the defendant complies with the
conditions of the bond. Tex. Att’y Gen. Op. No. JC-163 (1999) at 2. Thus, all interest earned on
the cash bail bonds while held in the Trust Account belongs to and must be returned to the
depositors.

         You indicate that section 117.054 of the Local Government Code may authorize the county
to retain a portion ofthe interest generated by the cash bail bonds. We disagree. Pursuant to section
 117.054, when registry trust funds are deposited in an interest bearing account, ten percent of the
interest is to be paid to the general fund of the county to compensate the county for the accounting
and administrative     expenses of maintaining the account. See TEX. LOC. GOV’T CODE ANN.
$117.054(b)(l) (Vernon 1999). The remaining interest is returned to the depositor along with the
principal deposit. Id. 5 117,054(b)(2). Attorney General Opinion DM-282 concluded that while
interest earned on cash bail bonds funds belong to the depositor, a county may retain a portion ofthe
interest in accordance with section 117.054 ofthe Local Government Code. See Tex. Att’y Gen. Op.
The Honorable Tim Curry - Page 11                  W-0195)




No. DM-282 (1994) at 3. Section 117.054, however, does not apply to cash bail bonds not deposited
in a court registry. See Tex. Att’y Gen. Op. No. DM-396 (1996) at 5 n.7 (chapter 117 applies only
to trust funds held by district or county clerk and not to trust funds held by other county officials);
35 DAVID B. BROOKS,TEXAS PRACTICE:COUNTYAND SPECIALDISTRICTLAW 5 14.11 (1989);
(same). Moreover, we do not believe that the county may retain any interest earned on the cash bail
bonds as a reasonable compensation for its investing services in the absence of an applicable statute
imposing such a service fee. Cj: Phillips, 524 U.S. at 172; Sellers, 483 S.W.2d at 244. But see Tex.
Att’y Gen. Op. No. DM-282 (1994) at 5 (concluding county may retain an amount of interest
earnings on jail inmates’ funds reasonably related to county’s services in absence of statutory
provision).

        Similarly, all interest earned on the liquidated certificates of deposit accrues to the principal
of the certificates of deposit and the owners thereof.          Additionally, section 1704.210 of the
Occupations Code dealing with the return of the security deposited or executed to secure a licensee’s
bond execution provides that:

                The security returned to a license holder under Subsection (a) is equal
                to the amount of security deposited or executed under Section
                1704.160 minus the amount of security:

                      (1) depleted      under   Section    1704.204(b)    to   pay
                      judgment; and

                      (2) necessary to secure any unexpired obligation         on a
                      bail bond executed by the license holder.

TEX. OCC. CODEANN. 5 1704.210 (b) (Vernon 2000). See also 4 1704.203(k) added by Act ofMay
25,1999,76thLeg.,      R.S., ch. 1096,s 1,1999Tex. Gen. Laws3962,3963,amendingT~~.R~v.C1~.
STAT. ANN. art. 2372p-3,s 6 without reference to repeal of article 2372p-3 by Act of May 13,1999,
76th Leg., R.S., ch. 388,§ 6,1999 Tex. Gen. Laws 1431,244O (“Any portion ofthe deposit or trust
not used to pay judgments or to secure unexpired obligations on existing bonds in force shall be
returned to the licensee or his heirs or assigns upon presentment of a release by the board.“). The
unambiguous language of the statute requires the return of all funds not used to pay a judgment or
required to secure any unexpired obligations. Neither 1704.210 or any other provision we have
found authorizes retention of any interest earnings on the liquidated certificates of deposit earned
while held in the Trust Account.        Accordingly, we conclude that all interest earnings on the
liquidated certificates of deposit must be returned to the depositors.
The Honorable Tim Curry - Page 12                 (X-0195)




                                        SUMMARY

                       When no criminal case is filed, a county sheriff is not required
              to forward cash bail bonds taken by the sheriff to the county clerk or
              district clerk for deposit in the county’s trust depository. The sheriff
              is authorized to maintain the no-tiled case cash bail bond funds in a
              separate interest bearing trust account at the county depository. The
              county auditor need not be a signatory on that account; the county
              auditor, however, may require that he or she be a signatory on such
              account. The sheriff is authorized to return and, indeed, must return,
              the no-tiled case cash bail bond funds to the defendant.

                       Unclaimed no-tiled case cash bail bonds held by the sheriff
              may become abandoned property subject to chapter 74 ofthe Property
              Code after three years from the date ofthe “no-tile letter” stating that
              no criminal case will be tiled. The sheriff is the “holder” of the
              abandoned cash bail bonds for the purposes of complying with the
              procedures set out in chapter 74 of the Property Code. Unclaimed
              liquidated certificates of deposit securing execution ofbail bonds by
              bondsmen and attorneys may become abandoned property subject to
              chapter 74 of the Property Code after three years from the date the
              related depositor’s bail bond license expires when no judgments or
              bonds are outstanding against the depositor.

                         All interest on no-tiled case cash bail bonds and on liquidated
               certificates of deposit earned while the funds are held by the sheriff
               must be returned to the depositors.




                                                Attorney General of Texas




ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERWIN
Deputy Attorney General - General Counsel
The Honorable Tim Curry - Page    13             W-0195)




ELIZABETH ROBINSON
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General - Opinion Committee
