Does a Texas clerk charge the $37 civil filing fee on a bail bond forfeiture?

TX AG Opinion GA-0486: Does the $37 filing fee apply to bail bond forfeitures?

Plain-English summary

Denton County Criminal District Attorney Bruce Isaacks asked the Attorney General about House Bill 11 from the 2006 second called session, which created a $37 filing fee in civil suits and a $4 fee on conviction in criminal cases, both to help fund judges' pay. He wanted to know whether the $37 fee, found in Local Government Code section 133.154 and three parallel Government Code sections, applies in bail bond forfeiture matters, and whether any other House Bill 11 fee does.

The opinion's answer to both turned on what kind of proceeding a bond forfeiture is. The $37 fee is collected, by the plain words of the statute, "on the filing of any civil suit." So the question became whether a bail bond forfeiture is a civil suit.

The opinion walked through the bond-forfeiture process. When a defendant out on bail fails to appear, the court enters an interlocutory order called a judgment nisi against the defendant and his sureties. The case is then docketed, the state presents the bond and the judgment nisi to make a prima facie case, and the matter proceeds under the rules governing civil suits. But, the opinion explained, the courts have been clear that a bond forfeiture is not actually a "civil case." It is a criminal action that is merely governed by civil procedure rules after the judgment nisi. Both the Texas Supreme Court and the Court of Criminal Appeals have treated an appeal from a bond forfeiture as a criminal case within the Court of Criminal Appeals' jurisdiction.

Because a bail bond forfeiture is not a civil suit, the $37 filing fee does not apply. The opinion reached the same result for the $4 fee: that fee is owed only by a person "convicted of any offense," and a bond forfeiture produces a money judgment against the defendant and sureties, not a conviction. So neither fee applies in bond forfeiture matters.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Texas court costs and filing fees have been reorganized and amended repeatedly since 2006. The dollar amounts and section numbers here reflect the law as it stood at the time. Anyone dealing with current court fees in a bond forfeiture should check the present statutes rather than relying on this opinion.

Who this opinion affected (as of 2006)

District and county clerks: The opinion told clerks not to collect the new $37 filing fee, or the $4 conviction fee, in bail bond forfeiture matters, because such a proceeding is neither a civil suit nor a conviction.

Sureties and bail bond companies: The opinion meant that the new House Bill 11 fees were not added to the costs a surety faces in a forfeiture proceeding, although other civil court costs could still be assessed after the judgment nisi.

Prosecutors handling forfeitures: The opinion clarified the legal character of a bond forfeiture as a criminal proceeding governed by civil rules only after the judgment nisi, which is why the civil-suit filing fee did not attach.

Common questions

Is a bail bond forfeiture a civil case in Texas?
No. The opinion explained that, although the proceeding is governed by the rules of civil procedure after a judgment nisi is entered, the courts treat a bond forfeiture as a criminal action, not a civil case.

So does the $37 filing fee apply to a bond forfeiture?
No. The $37 fee is collected only "on the filing of a civil suit." Because a bond forfeiture is not a civil suit, the fee does not apply.

What about the $4 fee from the same bill?
It does not apply either. The $4 fee is owed only by a person "convicted of any offense," and a bond forfeiture results in a money judgment against the defendant and sureties, not a conviction.

Can any court costs be charged in a bond forfeiture?
The opinion noted that the Court of Criminal Appeals had said civil court costs may be assessed in a bond forfeiture after entry of the judgment nisi, but it had not decided whether those costs include filing fees. The opinion's holding was limited to the two specific House Bill 11 fees.

Background and statutory framework

House Bill 11 (Act of Aug. 9, 2006, 79th Leg., 2d C.S., ch. 3, 2006 Tex. Gen. Laws 34, 38) added a $37 civil filing fee and a $4 conviction fee for the support of the judiciary. The $37 fee appears in Local Government Code section 133.154(a), is remitted to the Comptroller for deposit in the judicial fund (Tex. Loc. Gov't Code Ann. § 133.154(a)-(b) (Vernon Supp. 2006); Tex. Gov't Code Ann. § 21.006 (Vernon 2004)), and is mirrored in Government Code sections 101.062, 101.083, and 101.123 for district, statutory county, and county courts (Tex. Gov't Code Ann. §§ 101.062, 101.083, 101.123 (Vernon Supp. 2006)). Each provision keys the fee to "the filing of a civil suit."

On the nature of bond forfeitures, bail is the security the accused gives to appear and answer (Tex. Code Crim. Proc. Ann. art. 17.01 (Vernon 2005)), and chapter 22 sets out the forfeiture procedure (Tex. Code Crim. Proc. Ann. ch. 22 (Vernon 1989 & Supp. 2006)). A failure to appear leads to a judgment nisi (id. art. 22.02 (Vernon 1989); Int'l Fid. Ins. Co. v. State, 71 S.W.3d 894, 896 (Tex. App.-Texarkana 2002, no pet.); Moore v. State, 828 S.W.2d 497, 498 (Tex. App.-Dallas 1992, writ ref'd)). The case is then docketed and governed by the rules for other civil suits (id. art. 22.10 (Vernon Supp. 2006)), a citation issues to the sureties (id. art. 22.03(a)), the state makes a prima facie case by presenting the bond and judgment nisi (Alvarez v. State, 861 S.W.2d 878, 880-81 (Tex. Crim. App. 1993) (per curiam)), and a final judgment may be collected by execution as in civil actions (id. art. 22.14 (Vernon 1989)).

The opinion applied the plain-meaning rule (Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999); Tex. Gov't Code Ann. § 311.011(a) (Vernon 2005)) and relied on cases holding that a bond forfeiture is not a civil case but a criminal action governed by civil rules after the judgment nisi (State v. Sellers, 790 S.W.2d 316, 321 (Tex. Crim. App. 1990); Dees v. State, 865 S.W.2d 461, 462 (Tex. Crim. App. 1993); Stephens v. State, 99 S.W. 1122 (Tex. Crim. App. 1907); Blue v. State, 341 S.W.2d 917, 919 (Tex. Crim. App. 1960)). Both the Texas Supreme Court and the Court of Criminal Appeals have treated an appeal from a bond forfeiture as a criminal case (Jeter v. State, 26 S.W. 49, 49 (Tex. 1894); Ex parte Burr, 185 S.W.3d 451, 452-53 (Tex. Crim. App. 2006); Tex. Const. art. V, § 5(a)). The $4 fee, by contrast, is owed by a person convicted of an offense (Tex. Loc. Gov't Code Ann. § 133.105(a) (Vernon Supp. 2006); Tex. Gov't Code Ann. § 102.022 (Vernon Supp. 2006)), and a forfeiture yields no conviction.

Citations

Statutes and session laws:

• Act of Aug. 9, 2006, 79th Leg., 2d C.S., ch. 3, 2006 Tex. Gen. Laws 34, 38 (House Bill 11)
• Tex. Loc. Gov't Code Ann. §§ 133.105(a), 133.154(a), 133.154(b) (Vernon Supp. 2006)
• Tex. Gov't Code Ann. §§ 21.006 (Vernon 2004), 101.062, 101.083, 101.123, 102.022 (Vernon Supp. 2006), 311.011(a) (Vernon 2005)
• Tex. Code Crim. Proc. Ann. arts. 17.01, 22.02, 22.03(a), 22.10, 22.14, ch. 22 (Vernon 1989 & Supp. 2006)
• Tex. Const. art. V, § 5(a)

Cases:

• Moore v. State, 828 S.W.2d 497, 498 (Tex. App.-Dallas 1992, writ ref'd)
• Int'l Fid. Ins. Co. v. State, 71 S.W.3d 894, 896 (Tex. App.-Texarkana 2002, no pet.)
• Alvarez v. State, 861 S.W.2d 878, 880-81 (Tex. Crim. App. 1993) (per curiam)
• Dees v. State, 865 S.W.2d 461, 462 (Tex. Crim. App. 1993)
• Stephens v. State, 99 S.W. 1122 (Tex. Crim. App. 1907)
• Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999)
• State v. Sellers, 790 S.W.2d 316, 321 (Tex. Crim. App. 1990)
• Blue v. State, 341 S.W.2d 917, 919 (Tex. Crim. App. 1960)
• Jeter v. State, 26 S.W. 49, 49 (Tex. 1894)
• Ex parte Burr, 185 S.W.3d 451, 452-53 (Tex. Crim. App. 2006)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0486
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0486.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

November 21, 2006

The Honorable Bruce Isaacks
Denton County Criminal District Attorney
Post Office Box 2850
Denton, Texas 76202

Opinion No. GA-0486

Re: Whether the $37 filing fee authorized by 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 in judges' compensation. See Act of Aug. 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 for the $37 filing 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 filing of any civil suit to be used for court-related purposes for the support of the judiciary.

Tex. Loc. Gov't Code Ann. § 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. § 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).

House Bill 11 also adopted Government Code 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 filing fee of $37 under Section 133.154, Local Government Code, to be used for court-related purposes for the support of the judiciary." Tex. Gov't Code Ann. §§ 101.062, .083, .123 (Vernon Supp. 2006). Under each of the four provisions you inquire about, the $37 filing fee is to be collected "on the filing 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 Crim. 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, .11, .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.-Dallas 1992, writ ref'd). Code of Criminal Procedure chapter 22 sets out the procedures governing bail bond forfeitures. See Tex. Code Crim. 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 a judgment 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 of bail formally commence with the entry of a judgment nisi, by which the court acquires jurisdiction to adjudicate the matter of enforcing the bond obligation. A judgment 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).

When the forfeiture has been declared,

the court or clerk shall docket the case upon the scire facias 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 Crim. Proc. Ann. 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 881. 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 Crim. 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 "[c]ivil 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. Crim. 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. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999); Tex. Gov't Code Ann. § 311.011(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. § 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 State v. Sellers, 790 S.W.2d 316, 321 (Tex. Crim. App. 1990); accord Dees, 865 S.W.2d at 462. A bail 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 S.W.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 V, section 5 of the Texas Constitution. See Jeter v. State, 26 S.W. 49, 49 (Tex. 1894); Ex parte Burr, 185 S.W.3d 451, 452-53 (Tex. Crim. App. 2006); see also Tex. Const. art. V, § 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 filing of any civil suit does not apply to bond forfeiture matters. Nor do Government Code 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 the $37 filing fee "on the filing of a civil suit," apply to bond forfeiture matters. Tex. Gov't Code Ann. §§ 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. Loc. Gov't Code Ann. § 133.105(a) (Vernon Supp. 2006); see Tex. Gov't Code Ann. § 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 Crim. Proc. Ann. § 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.

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

Footnotes

1. 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 at http://www.oag.state.tx.us) [hereinafter Request Letter].

2. "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." Int'l Fid. Ins. Co. v. State, 71 S.W.3d 894, 896 n.1 (Tex. App.-Texarkana 2002, no pet.) (quoting Black's Law Dictionary 1068 (7th ed. 1999)).

3. "Scire facias means a judicial writ, founded on some 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 897 n.2. The name designates both the writ and the whole proceeding. Id.; see Black's Law Dictionary 1373 (8th ed. 2004) (scire facias is a Latin term of law which means "you are to make known, show cause").