                               ATTORNEY GENERAL OF TEXAS
                                           GREG ABBOTT


                                                May 28,2013



Mr. David Slayton                                    Opinion No. GA-1006
Administrative Director
Office of Court Administration                       Re: Transportation Code section 502.010 and the
Post Office Box 12066                                reconciliation of Senate Bill 1386 and House Bill
Austin, Texas 78711-2066                             2357 from the Eighty-second Legislature
                                                     (RQ-1101-GA)

Dear Mr. Slayton:

        You ask seven questions concerning Transportation Code section 502.010. 1 You explain
that section 502.010 helps counties collect unpaid fines and court costs by authorizing counties
to refuse to register the motor vehicle of a person with outstanding county fines or costs.
Request Letter at 1. In addition to refusing to register the vehicle, the county may in some
instances impose "an additional fee." TEX. TRANSP. CODE ANN.§ 502.010(f) (West Supp. 2012).
Your questions arise because the Eighty-second Legislature enacted two different bills amending
what is now subsection 502.010, and you are unsure how to reconcile them. Request Letter at 2.

        House Bill 2357 (the "House bill") amended the statute, in relevant part, by adding "the
county" as an entity that can be reimbursed for its expenses with the additional fee authorized by
subsection (f). 2 The House bill also reenacted the full statute pursuant to article III, section 36 of
the Texas Constitution. See TEX. CONST. art. III,§ 36; see also Hirsch v. State, 282 S.W.3d 196,
204 (Tex. App.-Fort Worth 2009, no pet.) (explaining that when the Legislature "recites a
statute at full length while amending it, it 'reenacts' the statute"). Senate Bill 1386 (the "Senate
bill") amended subsection (a) by authorizing the county to refuse to register a motor vehicle if
the owner failed to appear for certain criminal proceedings. 3 The Senate bill also amended
subsection (f) by specifYing that the additional fee is twenty dollars and by authorizing the
additional fee to be imposed if a person fails to pay money owed to the county by its due date or
if a person fails to appear at certain criminal court proceedings. Senate bill, supra note 3.

         'Letter from Mr. David Slayton, Admin. Dir., Office of Ct. Admin., to Honorable Greg Abbott, Tex. Att'y
Gen. at 3 (Dec. 3, 2012), http://www.texasattomeygeneral.gov/opin ("Request Letter").
        2
        Act of May 29, 2011, 82d Leg., R.S., ch. 1296, § 76, 2011 Tex. Gen. Laws 3617, 3649-50 (codified at
TEX. TRANSP. CODE ANN.§ 502.010).
        3
        Act of May 25, 2011, 82d Leg., R.S., ch. 1094, § 1, 2011 Tex. Gen. Laws 2834, 2834 (codified at TEX.
TRANSP. CODE ANN.§ 502.010).
Mr. David Slayton - Page 2                    (GA-1006)



Finally, the Senate bill placed the last sentence of subsection (f) into a separate subsection, (f-1),
and added "the county assessor-collector" and "another county department" as entities that can
be reimbursed for expenses with the additional fee. Id.

       The Code Construction Act requires that when "amendments to the same statute are
enacted at the same session of the legislature, one amendment without reference to another, the
amendments shall be harmonized, if possible, so that effect may be given to each." TEX. Gov'T
CODE ANN.§ 311.025(b) (West 2013). The Code Construction Act further provides:

               [T]ext that is reenacted because of the requirement of Article III,
               Section 36, of the Texas Constitution is not considered to be
               irreconcilable with additions or omissions in the same text made by
               another amendment. Unless clearly indicated to the contrary, an
               amendment that reenacts text in compliance with that
               constitutional requirement does not indicate legislative intent that
               the reenacted text prevail over changes in the same text made by
               another amendment, regardless of the relative dates of enactment.

Id. § 311.025(c).

         Applying these provisions of the Code Construction Act, the House bill's reenactment of
subsection (a) is not irreconcilable with the addition made by the Senate bill to subsection (a).
See id. § 311.025(b)-(c); see Hirsch, 282 S.W.3d at 204-06 (applying the same rule to two bills
amending the same statute). Furthermore, the additions made to subsection (f) by the Senate
bill-specifying the amount of the fee, authorizing its imposition in other circumstances, and
allowing the county assessor-collector or another county department to be reimbursed with the
additional fee-are not irreconcilable with the mere omission of those additions from the same
text in the House bill's reenactment of the statute. The two bills can be harmonized, as required
by the Code Construction Act, by giving effect to the Senate bill's additions and to the parts of
the House bill that do not merely reenact the statute. TEX. Gov'T CODE ANN. § 311.025(b )-(c)
(West 2013).

        Because the House bill and Senate bill can be harmonized, the answers to your specific
questions regarding the amended statute are readily apparent. You first ask whether the
additional fee authorized by subsection 502.010(£) is twenty dollars or an unspecified amount.
Request Letter at 3. Pursuant to the Senate bill, the Legislature authorized a county to "impose
an additional fee of $20." TEX. TRANSP. CODE ANN. § 502.010(£) (West Supp. 2012) (emphasis
added). Your fourth question asks, "Assuming that the amount of the fee is unspecified, who
decides the amount of the additional fee?" Request Letter at 3. Because the Legislature has
established the amount at twenty dollars, we need not answer your fourth question.

        Your second question asks when the additional fee authorized by subsection 502.010(£)
may be assessed. ld. at 3. The Senate bill amended subsection (f) to authorize the county to
impose the fee on "a person who fails to pay a fine, fee, or tax to the county by the date on which
the fine, fee, or tax is due." TEX. TRANSP. CODE ANN. § 502.010(£) (West Supp. 2012)
Mr. David Slayton - Page 3                            (GA-1006)




(emphasis added). Thus, the county may now assess the additional fee at any time after a fine,
fee, or tax is due.

        In your third question, you ask, "Who decides whether a county will impose an additional
fee?'' Request Letter at 3. Section 502.010 states that "[a] county ... may impose an additional
fee .... " TEX. TRANSP. CODE ANN. § 502.010(±) (West Supp. 2012). The Legislature's use of
the word "'[m]ay' creates discretionary authority," but the statute does not specify who within
the county decides to impose the additional fee. TEX. Gov'T CODE ANN. § 311.016(1) (West
2013). The Texas Constitution has established the commissioners court as the "county's
principal governing body" and has given it "jurisdiction over all county business." Comm 'rs Ct.
of Titus Cnty. v. Agan, 940 S.W.2d 77, 79 (Tex. 1997); TEX. CONST. art. V, § 18(b). In the
course of exercising these duties, the commissioners court may decide whether the county will
impose the additional fee authorized under section 502.010.

        You next ask, "Who assesses and collects the additional fee?'' Request Letter at 3.
Section 502.010 is silent as to who, within the county, assesses and collects the additional fee.
Subsection (f-1) provides that the additional fee could be used to reimburse "the county assessor-
collector" or "another county department" for its services, suggesting that either the assessor-
collector or some other department could perform those services. TEX. TRANSP. CODE ANN. §
502.010(f-1) (West Supp. 2012). As the principal governing body of the county, the
commissioners court may decide who assesses and collects the additional fee.

        In your sixth question, you ask whether the "officer charged with assessing and collecting
the additional fee [has] any discretion to waive imposition ofthe additional fee." Request Letter
at 3. The language of subsection 502.010(±) is permissive, allowing but not requiring a county to
impose the additional fee. TEX. TRANSP. CODE ANN. § 502.010(±) (West Supp. 2012). The
statute does not specifically empower the officer charged with assessing and collecting the
additional fee to waive it. However, whether to impose the fee at all is committed to the
commissioners court's discretion, and nothing in the statute prohibits the commissioners court
from authorizing county officers to waive the fee in particular circumstances. Thus, the
commissioners court may determine whether the officer charged with assessing and collecting
the additional fee may waive it in particular circumstances. 4

        Finally, you ask whether an additional fee can "be assessed if a defendant fails to appear
for a criminal proceeding but has not been convicted." Request Letter at 3. Prior to 2011, the
statute authorized an additional fee only for past due fines. The Senate bill amended the statute
to authorize a county to "impose an additional fee of $20 to ... a person who fails to appear in
connection with a complaint, citation, information, or indictment in a court in which a criminal

         4
          Granting county officials the discretion to waive the additional fee could raise constitutional concerns,
depending on the circumstances. See City of Cleburne v. Cleburne Living Ctr., 4 73 U.S. 432, 439 ( 1985)
(explaining that the Equal Protection Clause requires "that all persons similarly situated should be treated alike").
Any policy allowing for selective waiver of the fee must comport with the equal protection requirements of the
Texas and United States Constitutions.
Mr. David Slayton - Page 4                 (GA-1006)



proceeding is pending against the owner." TEX. TRANSP. CODE ANN. § 502.010(£)(2) (West
Supp. 2012) (emphasis added). The plain language of subsection (f)(2) does not require a
conviction. Therefore, the additional fee may be assessed when a defendant fails to appear for a
criminal proceeding but has not been convicted.
Mr. David Slayton - Page 5                  (GA-1006)



                                     SUMMARY

                      Transportation Code section 502.010 authorizes certain
              counties to impose an additional fee of twenty dollars on a person
              who fails to pay a fine, fee or tax to the county or on a defendant
              who fails to appear in connection with a pending criminal
              proceeding. The commissioners court may determine whether a
              county imposes the additional fee and which county official or
              department assesses and collects that fee. If the commissioners
              court decides to impose the fee, the commissioners court may
              determine whether the officer charged with assessing and
              collecting the additional fee may waive it in particular
              circumstances. The additional fee may be imposed after the date
              on which the fine, fee or tax is due, and it may be assessed when a
              defendant fails to appear for a criminal proceeding but has not
              been convicted.




DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee
