Can a Texas county clerk take a fee out of a refunded cash bail bond?

Plain-English summary

Taylor County Criminal District Attorney James Eidson asked whether a county or district clerk may keep an administrative fee out of the money a defendant gets back after posting a cash bail bond. The Attorney General concluded that the clerk may, under section 117.055 of the Local Government Code.

Two statutes pulled in opposite directions. Article 17.02 of the Code of Criminal Procedure lets a defendant deposit cash with the court in place of having sureties sign a bond, and it says any cash funds deposited "shall be refunded to the defendant if and when the defendant complies with the conditions of his bond." Reading "any" to mean "all" (its normal statutory meaning), and recognizing that bail exists to secure the defendant's appearance rather than to raise revenue, the opinion confirmed that all the cash bail must come back to the defendant once he satisfies his bond; earlier opinions had held the clerk cannot skim it to pay the defendant's fines or penalties. On the other side, section 117.055 of the Local Government Code tells the clerk to deduct a fee equal to five percent of the withdrawal, not to exceed $50, from "registry funds" that have not earned interest, to compensate the county for handling them. Chapter 117 defines registry funds to include cash bail bonds, and the county here kept its bail money in non-interest-bearing accounts, so the fee provision applied.

Because article 17.02 requires the full refund while section 117.055 requires the fee to be withheld, the two statutes conflict. They could not be reconciled by treating one as the more specific exception to the other, since neither is more specific about cash bail deposits, so the opinion applied the rule that when two statutes are irreconcilable, the one enacted later prevails. Article 17.02 dates from 1965 and has not been amended; section 117.055 was enacted in 1987 and, importantly, was amended in 1997 to extend the fee to "registry funds," which include cash bail bonds. As the later-enacted provision, section 117.055 controls, so a clerk may withhold the administrative fee from a cash bail refund.

Currency note

This opinion was issued in 1999. 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.

Background and statutory framework

Bail is the security an accused gives to appear and answer the accusation (article 17.01), and article 17.02 allows a cash deposit in lieu of sureties, providing for a refund when the defendant complies with the bond's conditions. The opinion grounded the "refund in full" point in the purpose of bail, citing McConathy v. State (bail secures the defendant's presence at trial and is "not a revenue measure intended to be a substitution for a fine"), along with Trammel v. State, DeLeon v. Pennington, and the office's Opinion JC-0024, which had concluded that compliant defendants must get their cash bail back and that it may not be withheld for fines or penalties. To read "any cash funds" as "all," the opinion applied the rule that undefined words are construed by grammar and common usage (Government Code section 311.011) and cited Hime v. City of Galveston and Branham v. Minear for the proposition that "any" normally means "all."

The fee side rested on chapter 117 of the Local Government Code, which governs registry funds deposited with county and district clerks. Registry funds are those tendered for deposit into the court's registry (section 117.001(3)) and include cash bail bonds (section 117.052(c); Opinions DM-282 and JM-1162). For interest-bearing accounts, the county keeps ten percent of the interest (section 117.054(b); Opinion DM-282), but for non-interest-bearing registry funds the clerk deducts the fee directly under section 117.055. The conflict-resolution analysis used Government Code section 311.026 (specific prevails over general) and, finding neither statute more specific, section 311.025 (later enactment prevails when statutes are irreconcilable). The opinion traced the enactment dates, including the 1997 amendment (ch. 505) that brought registry funds, and thus cash bail bonds, within section 117.055, making it the later-enacted and controlling provision.

Common questions

Can a Texas clerk deduct a fee from my returned cash bail?
The opinion concluded yes. Under section 117.055 of the Local Government Code, a county or district clerk may withhold an administrative fee from a refunded cash bail bond.

How much is the fee?
The opinion described it as five percent of the withdrawal, capped at $50, deducted at the time of withdrawal to cover the county's accounting and administrative costs.

Doesn't the law say I get all of my bail money back?
Article 17.02 does require all cash bail to be refunded once the defendant complies with the bond, and the opinion reaffirmed the clerk cannot withhold it for fines or penalties. But the later-enacted fee statute, section 117.055, prevails over that general refund command for the administrative fee.

Does the fee apply to every cash bail deposit?
The opinion's reasoning ties the fee to registry funds that have not earned interest. The county in the request kept its bail in non-interest-bearing accounts, which is what triggered the section 117.055 fee; interest-bearing deposits are handled under section 117.054 instead.

Citations

Statutory provisions: Tex. Code Crim. Proc. Ann. arts. 17.01, 17.02 (Vernon 1977); Tex. Gov't Code Ann. §§ 311.011, 311.026 (Vernon 1998), 311.025; Tex. Loc. Gov't Code Ann. §§ 117.001-.124 (Vernon 1999 & Supp. 2000), 117.001(3), 117.052(c), 117.054(b) (Vernon 1999), 117.055 (Vernon Supp. 2000); Act of May 27, 1965, 59th Leg., R.S., ch. 722, § 1, 1965 Tex. Gen. Laws 317, 318; Act of May 1, 1987, 70th Leg., R.S., ch. 149, § 1, 1987 Tex. Gen. Laws 707, 859; Act of May 16, 1997, 75th Leg., R.S., ch. 505, § 15, 1997 Tex. Gen. Laws 1838, 1841.

Cases: McConathy v. State, 528 S.W.2d 594 (Tex. Crim. App. 1975); Trammel v. State, 529 S.W.2d 528 (Tex. Crim. App. 1975); DeLeon v. Pennington, 759 S.W.2d 201 (Tex. App.-San Antonio 1988, orig. proceeding); Hime v. City of Galveston, 268 S.W.2d 543 (Tex. Civ. App.-Waco 1954, writ ref'd n.r.e.); Branham v. Minear, 199 S.W.2d 841 (Tex. Civ. App.-Eastland 1947, writ ref'd n.r.e.).

Prior Attorney General opinions discussed: JC-0024 (1999); DM-282 (1994); JM-1162 (1990).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0163
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0163.pdf

Original opinion text

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

December 29, 1999

The Honorable James Eidson
Taylor County Criminal District Attorney
300 Oak Street
Abilene, Texas 79602-1577

Opinion No. JC-0163

Re: Whether a county or district clerk may withhold fee from funds deposited as cash bail bond (RQ-0113-JC)

Dear Mr. Eidson:

You ask whether a county or district clerk may withhold an administrative fee from the return of funds deposited with the clerk as a cash bail bond pursuant to article 17.02 of the Code of Criminal Procedure. We conclude that the clerks may do so pursuant to section 117.055 of the Local Government Code.

Bail is "the security given by the accused that he will appear and answer before the proper court the accusation brought against him, and includes a bail bond or a personal bond." TEX. CODE CRIM. PROC. ANN. art. 17.01 (Vernon 1977). Article 17.02 of the Code of Criminal Procedure defines a bail bond and allows a defendant in custody to deposit cash with the court in lieu of having sureties sign a bond. Id. art. 17.02. With respect to the refund of a cash bail bond, article 17.02 provides that "[a]ny 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." Id.

Courts and this office have said that the primary purpose of bail is to secure the presence of an accused upon trial of an accusation against him. See McConathy v. State, 528 S.W.2d 594, 596 (Tex. Crim. App. 1975); accord Trammel v. State, 529 S.W.2d 528, 529-30 (Tex. Crim. App. 1975); DeLeon v. Pennington, 759 S.W.2d 201, 202 (Tex. App.-San Antonio 1988, orig. proceeding); Tex. Att'y Gen. Op. No. JC-0024 (1999) at 4. "It is not a revenue measure intended to be a substitution for a fine, but is intended to secure the trial of the alleged offender rather than turn his securities or those of his bondsman into a penalty." McConathy, 528 S.W.2d at 596. Thus, this office has concluded 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 owed by the defendant. Tex. Att'y Gen. Op. No. JC-0024 (1999) at 3-4.

Furthermore, article 17.02 provides that "[a]ny cash funds" deposited as bail shall be refunded to the defendant if and when the defendant complies with the conditions of his bond. TEX. CODE CRIM. PROC. ANN. art. 17.02 (Vernon 1977) (emphasis added). Undefined words and phrases in a statute must be read in context and construed according to the rules of grammar and common usage. See TEX. GOV'T CODE ANN. § 311.011 (Vernon 1998). When used in a statute, "any" normally means "all." See Hime v. City of Galveston, 268 S.W.2d 543, 545 (Tex. Civ. App.-Waco 1954, writ ref'd n.r.e.); Branham v. Minear, 199 S.W.2d 841, 845-46 (Tex. Civ. App.-Eastland 1947, writ ref'd n.r.e.). Construing "any" in article 17.02 to mean "all" is consistent with the purpose of the statute, that is, to guarantee the defendant's appearance in court rather than to raise revenue. Thus, under article 17.02 of the Code of Criminal Procedure, all funds deposited as a cash bail bond must be refunded to the defendant once he complies with the conditions of his bond.

At the same time, section 117.055 of the Local Government Code allows a county or district clerk to withhold from certain "registry funds" deposited with the clerks a fee of five percent, or as much as $50.00, for accounting and administrative expenses incurred in handling the funds. Chapter 117 of the Local Government Code sets out procedures for the handling of registry funds that are deposited with county and district clerks. See TEX. LOC. GOV'T CODE ANN. §§ 117.001-.124 (Vernon 1999 & Supp. 2000). "Registry funds" subject to chapter 117 are "funds tendered to the [county or district] clerk for deposit into the registry of the court." Id. § 117.001(3) (Vernon 1999). These funds include funds deposited as a cash bail bond. See id. § 117.052(c); Tex. Att'y Gen. Op. Nos. DM-282 (1994) at 2; JM-1162 (1990) at 2.

Where registry funds are deposited in an interest bearing account, ten percent of the interest earned is paid to the general fund of the county to compensate the county for the accounting and administrative expenses of maintaining the account. TEX. LOC. GOV'T CODE ANN. § 117.054(b) (Vernon 1999). The remaining interest is returned to the depositor along with the principal deposit. Id. Attorney General Opinion DM-282 concluded that while interest earned on cash bail bond funds belong to the depositor, a county may retain a portion of the interest in accordance with section 117.054 of the Local Government Code. See Tex. Att'y Gen. Op. No. DM-282 (1994) at 3.

Where registry funds deposited with a court do not earn interest, an administrative fee is deducted directly from the funds pursuant to section 117.055 of the Local Government Code:

(a) To compensate the county for the accounting and administrative expenses incurred in handling the registry funds that have not earned interest, including funds in a special or separate account, the clerk shall, at the time of withdrawal, deduct from the amount of the withdrawal a fee in an amount equal to five percent of the withdrawal but that may not exceed $50. Withdrawal of funds generated from a case arising under the Family Code is exempt from the fee deduction provided by this section.

(b) A fee collected under this section shall be deposited in the general fund of the county.

TEX. LOC. GOV'T CODE ANN. § 117.055 (Vernon Supp. 2000). You tell us that your county's cash bail bonds are deposited in non-interest bearing accounts, thereby implicating the administrative fee withholding requirement of section 117.055. See Letter from Honorable James Eidson, Criminal District Attorney, Taylor County, to Opinion Committee, Office of the Attorney General, at 1 (Sept. 13, 1999) (on file with Opinion Committee).

Article 17.02 requires all cash deposited as a bail bond to be refunded to the defendant, and section 117.055 requires an administrative fee to be withheld from a cash bail refund. Thus, the statutes conflict. Although conflicting statutes can be reconciled by reading the more specific statute as an exception to the more general one, see TEX. GOV'T CODE ANN. § 311.026 (Vernon 1998), neither article 17.02 of the Code of Criminal Procedure nor section 117.055 of the Local Government Code is more specific or general than the other with respect to the treatment of cash bail bond deposits, and thus they conflict irreconcilably. When two statutes are irreconcilable, the statute latest in date of enactment prevails. See id. § 311.025.

Article 17.02 of the Code of Criminal Procedure was enacted in 1965 and has not been amended since that time. Section 117.055 of the Local Government Code was enacted in 1987 and has been amended several times, including during the most recent legislative session. Prior to amendment in 1997, section 117.055 authorized withholding of an administrative fee only from trust funds deposited by litigants in civil proceedings. Section 117.055 was amended in 1997 to make the administrative fee withholding provision applicable to "registry funds," which are defined by the statute to include funds deposited as cash bail bonds. See TEX. LOC. GOV'T CODE ANN. § 117.052(c) (Vernon 1999). Because it is the later-enacted statute, section 117.055 of the Local Government Code prevails over article 17.02 of the Code of Criminal Procedure. Accordingly, we conclude that a county or district clerk may, pursuant to section 117.055 of the Local Government Code, withhold an administrative fee from the return of funds deposited with the clerk as a cash bail bond pursuant to article 17.02 of the Code of Criminal Procedure.

[Footnote 1: See Act of May 27, 1965, 59th Leg., R.S., ch. 722, § 1, 1965 Tex. Gen. Laws 317, 318.]

[Footnote 2: See Act of May 1, 1987, 70th Leg., R.S., ch. 149, § 1, 1987 Tex. Gen. Laws 707, 859.]

[Footnote 3: See Act of May 16, 1997, 75th Leg., R.S., ch. 505, § 15, 1997 Tex. Gen. Laws 1838, 1841.]

SUMMARY

Section 117.055 of the Local Government Code authorizes a county or district clerk to withhold an administrative fee from the return of funds deposited with the clerk as a cash bail bond pursuant to article 17.02 of the Code of Criminal Procedure.

Yours very truly,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Barbara Griffin
Assistant Attorney General - Opinion Committee