Can a Texas court clerk apply a defendant's cash bail refund to their unpaid fines instead of giving it back?

TX AG Opinion GA-0773: Can a district clerk apply a defendant's cash bail refund to fines and costs instead of refunding it?

Plain-English summary

A county attorney asked whether a district clerk may accept an assignment of a defendant's cash bail bond refund to pay the defendant's fines and costs, and if so, at what point: when the defendant first deposits the cash, after adjudication, or after the court directs the refund. The question turned on article 17.02 of the Code of Criminal Procedure, which allows a defendant to post bail by depositing cash with the court's custodian of funds (often the district clerk) instead of using a surety. That kind of deposit is a "cash bail bond."

Article 17.02 spells out what the custodian must do. It must receive the cash, give a receipt, and then, once the defendant complies with the bond's conditions and the court so orders, refund the cash "to the defendant." The opinion read the word "shall" as making that refund duty mandatory, and it looked at the purpose of bail to confirm the reading. The point of bail, including a cash bond, is to guarantee the defendant shows up for trial; it is not a revenue measure or a substitute for a fine. A Texas appeals court had already called the duty to order the refund "ministerial," meaning the court must order the refund once the conditions are met without regard to unpaid fines or costs. Prior AG opinions had likewise held the cash must go back to the defendant, not to a third party, and may not be withheld for fines except where a statute expressly allows it.

Putting that together, the opinion concluded a clerk may not take an assignment of the refund at the time of deposit, and may not take an assignment at any other point if doing so would conflict with the duty to refund the money to the defendant on compliance and court order. There was one timing exception that answered the requestor's third option: after the funds have actually been refunded to the defendant under the court's order, article 17.02 no longer stands in the way, so the clerk may then accept those funds from the defendant to pay fines and costs. The opinion did not opine on the form the refund-and-payment transactions should take.

Currency note

This opinion was issued in 2010. 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.

Article 17.02 of the Code of Criminal Procedure may have been amended since 2010. Confirm the current statute before relying on anything below.

Who this opinion affected (as of 2010)

District clerks and other custodians of court funds: The opinion told them that they must refund a cash bail bond to the defendant once the conditions are met and the court orders it, and that they could not accept an assignment of that refund to satisfy fines and costs before the refund was made.

Criminal defendants who posted cash bail: The opinion confirmed their right to have the cash refunded to them, rather than diverted to fines, once they complied with the bond's conditions.

Courts and counties trying to collect fines and costs: The opinion indicated the cash bond was not a collection device, but it left open that after the refund reached the defendant, the defendant's funds could then be applied to fines and costs.

Common questions

Can the clerk just keep my cash bail to cover my fines?
No. The opinion held the clerk must refund the cash bail to the defendant once the bond's conditions are met and the court orders the refund; it cannot be diverted to fines and costs beforehand.

What if I sign over the refund when I post bail?
The opinion concluded article 17.02 does not authorize the clerk to accept an assignment made at the time of deposit.

So can my bail money ever go toward my fines?
Yes, but only after it is refunded to you on the court's order. At that point article 17.02 no longer prevents the clerk from accepting your funds to pay fines and costs.

Why does the law treat bail this way?
Because the purpose of bail is to secure the defendant's appearance at trial, not to act as a substitute for a fine or a revenue measure.

Background and statutory framework

A bail bond binds an accused to appear to answer a criminal accusation, and article 17.02 allows it to take the form of a surety bond or a cash bond, where the defendant deposits current money of the United States with the court's custodian of funds in lieu of sureties (Tex. Code Crim. Proc. Ann. art. 17.02 (Vernon 2005); Melton v. State, 993 S.W.2d 95, 97 (Tex. 1999)). While debts are generally assignable at common law (Cloughly v. NBC Bank-Seguin, N.A., 773 S.W.2d 652, 655 (Tex. App.—San Antonio 1989, writ denied)), the question was the clerk's authority under article 17.02, which directs that cash deposited be receipted and "refunded to the defendant if and when the defendant complies with the conditions of his bond, and upon order of the court."

Beginning with the statute's language (Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008)) and reading "shall" as mandatory (Tex. Gov't Code Ann. § 311.016(2) (Vernon 2005); City of Austin v. S.W. Bell Tel. Co., 92 S.W.3d 434, 442 (Tex. 2002)), and considering the statute's purpose (Tex. Gov't Code Ann. § 311.023(1) (Vernon 2005)), the opinion noted bail secures the defendant's appearance and is not a substitute for a fine (McConathy v. State, 528 S.W.2d 594, 596 (Tex. Crim. App. 1975)). A court had called the duty to order the refund ministerial, regardless of unpaid fines (De Leon v. Pennington, 759 S.W.2d 201, 202 (Tex. App.—San Antonio 1988, no writ)). The opinion concluded the clerk may not accept an assignment of the refund to pay fines and costs, except that after the funds are refunded to the defendant on court order, article 17.02 does not preclude the clerk from accepting them to pay fines and costs.

Citations

Statutes:

• Tex. Code Crim. Proc. Ann. art. 17.02 (Vernon 2005)
• Tex. Gov't Code Ann. §§ 311.016(2), 311.023(1) (Vernon 2005)

Cases:

• Melton v. State, 993 S.W.2d 95 (Tex. 1999)
• Cloughly v. NBC Bank-Seguin, N.A., 773 S.W.2d 652 (Tex. App.—San Antonio 1989, writ denied)
• Leland v. Brandal, 257 S.W.3d 204 (Tex. 2008)
• City of Austin v. S.W. Bell Tel. Co., 92 S.W.3d 434 (Tex. 2002)
• McConathy v. State, 528 S.W.2d 594 (Tex. Crim. App. 1975)
• De Leon v. Pennington, 759 S.W.2d 201 (Tex. App.—San Antonio 1988, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0773
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0773.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

May 4, 2010

The Honorable Vince Ryan
Harris County Attorney
1019 Congress, 15th Floor
Houston, Texas 77002

Opinion No. GA-0773

Re: Whether a district clerk may accept assignment of a defendant's cash bail bond refund as payment of the defendant's fines and costs (RQ-0819-GA)

Dear Mr. Ryan:

You ask whether a district clerk may accept assignment of a defendant's cash bail bond refund in payment of the defendant's fines and costs. If so, you also ask when the clerk may accept the assignment and list the following possibilities: (1) when the defendant deposits the cash bail bond; (2) after the defendant's adjudication; or (3) after the court directs the refund to the defendant. Request Letter at 1. Your questions focus on article 17.02 of the Code of Criminal Procedure, which authorizes the use of cash bail bonds. TEX. CODE CRIM. PROC. ANN. art. 17.02 (Vernon 2005).

A bail bond is "a written undertaking binding an accused to appear before the appropriate authorities to answer a criminal accusation." Melton v. State, 993 S.W.2d 95, 97 (Tex. 1999). Article 17.02 allows a bail bond to be in the form of a surety bond or cash bond. TEX. CODE CRIM. PROC. ANN. art. 17.02 (Vernon 2005); Melton, 993 S.W.2d at 97. In lieu of a surety bond, article 17.02 permits the defendant to execute a bond and deposit "current money of the United States" in the amount of the bond into the court registry. TEX. CODE CRIM. PROC. ANN. art. 17.02 (Vernon 2005). Such a cash deposit by a defendant is known as a "cash bail bond." Melton, 993 S.W.2d at 97.

As you note, the right to receive payment for debt is generally assignable under the common law. See Cloughly v. NBC Bank-Seguin, N.A., 773 S.W.2d 652, 655 (Tex. App.—San Antonio 1989, writ denied) (stating that generally, debts are assignable claims). Your question, however, is not about what rights are assignable under the common law, but rather, you ask about a district clerk's authority to accept an assignment of a cash bail bond refund to satisfy fines and costs. Request Letter at 1. Article 17.02, in its provision for cash bail bonds, addresses the responsibilities of a court's custodian of funds, such as a district clerk:

[T]he defendant upon execution of such bail bond may deposit with the custodian of funds of the court in which the prosecution is pending current money of the United States in the amount of the bond in lieu of having sureties signing the same. Any cash funds deposited under this Article shall be receipted for by the officer receiving the same and shall be refunded to the defendant if and when the defendant complies with the conditions of his bond, and upon order of the court.

TEX. CODE CRIM. PROC. ANN. art. 17.02 (Vernon 2005). Statutory construction begins with an examination of the statute's language to determine legislative intent. Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008). Article 17.02 requires the custodian of funds to (1) receive the cash bond, (2) provide a receipt for the bond, and (3) once the defendant has complied with the bond's condition and upon order of the court, refund the cash bond funds "to the defendant." Id. The word "shall" in the statute indicates that, where circumstances warrant, the custodian's duty to refund a cash bond to a defendant is mandatory. See TEX. GOV'T CODE ANN. § 311.016(2) (Vernon 2005) (providing that, unless context requires otherwise, the word "shall" in a statute "imposes a duty"); City of Austin v. S.W. Bell Tel. Co., 92 S.W.3d 434, 442 (Tex. 2002) (observing that courts generally construe the word "shall" in statutes as mandatory).

Moreover, in construing article 17.02 we may consider its purpose. See TEX. GOV'T CODE ANN. § 311.023(1) (Vernon 2005) (authorizing a court, in construing a statute, to consider the "object sought to be attained"). The primary purpose of a bail bond, including a cash bond, is to secure the trial of the accused, and "is not a revenue measure intended to be a substitution for a fine." McConathy v. State, 528 S.W.2d 594, 596 (Tex. Crim. App. 1975). Construing article 17.02 as creating a mandatory duty to refund the cash bond funds according to the statute's terms is consistent with the purpose of the statute, which is to guarantee the defendant's appearance rather than to secure the payment of fines and costs. Accordingly, a court has construed article 17.02 as creating a mandatory duty, once the defendant has complied with the bond's conditions, to order a refund of the cash deposit without regard to the existence of unpaid fines or costs. De Leon v. Pennington, 759 S.W.2d 201, 202 (Tex. App.—San Antonio 1988, no writ) (concluding that the court's duty to order the refund is "ministerial"). Likewise, this office has construed article 17.02's requirement to refund the cash bond "to the defendant" as mandatory. Tex. Att'y Gen. Op. Nos. JC-0024 (1999) at 3-4 (determining that the statute requires that a cash bail bond be refunded to the defendant rather than to a third party); JC-0163 (1999) at 1-2 (concluding that once a defendant has complied with the conditions of his bond, the cash deposited as bail must be refunded to him and may not be withheld to pay any fines or penalties except as expressly provided by statute). Neither article 17.02 nor any other statute of which we are aware authorizes assignments as an exception to article 17.02's requirement to refund cash bail bond funds to the defendant.

Consequently, we conclude that article 17.02 does not authorize a clerk to accept an assignment made when the defendant makes the cash bond deposit. Nor does it authorize a clerk to otherwise accept an assignment when it would be contrary to article 17.02's requirement to refund the funds to the defendant upon compliance with the cash bail bond's terms and upon court order.

Your final question is whether the clerk may accept an assignment once the court has ordered the refund to the defendant. Once the cash bail bond funds have been refunded to the defendant according to the court's order, article 17.02 does not preclude the clerk from accepting the funds to pay fines and costs. We do not opine about the form of the transaction or transactions that may be utilized to refund the deposit to the defendant and to effectuate a transfer of the funds to pay fines and costs.

SUMMARY

Under article 17.02 of the Code of Criminal Procedure, a district clerk may not accept an assignment of a defendant's cash bail bond refund in payment of the defendant's fines and costs instead of refunding the deposited funds to the defendant.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee