Can a private collection agency collect a fine a Texas justice of the peace only suggested but never ordered?

Plain-English summary

The Gonzales County Attorney asked whether a fine that a justice of the peace "suggests" in connection with an arrest warrant, when a defendant has failed to appear in a Class C misdemeanor case, is a debt "ordered to be paid by a court" that a private vendor may collect under article 103.0031 of the Code of Criminal Procedure. The typical situation: a traffic citation issues, the defendant signs a promise to appear before the justice of the peace, the defendant does not appear, and the justice of the peace issues an arrest warrant. Along with the warrant, the court often suggests a fine that would be acceptable to the justice of the peace upon the violator's arrest, payable to the magistrate when arrested. The county attorney made clear he was asking only about cases where no order has issued and the amount is just an informal suggestion, not a fine set after a hearing.

The Attorney General concluded that, absent an order by the magistrate, a suggested fine is not within the terms of article 103.0031. The statute lets a commissioners court or a city's governing body contract with a private attorney or collection vendor for debts and accounts receivable, "such as fines, fees, restitution, and other debts or costs," that are "ordered to be paid by a court." The opinion read subsections (a) and (d) together: subsection (d) likewise refers to "costs ordered paid by the court," confirming that what a collector may be hired to pursue are amounts ordered paid by a court. A brief had argued, under the doctrine of the last antecedent, that "ordered to be paid by a court" modified only the illustrative list and not the more remote "debts and accounts receivable," but the opinion rejected that reading because the illustrative series simply refers back to "debts and accounts receivable." Because an informal suggestion is not an order, article 103.0031 does not apply.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The county attorney, justices of the peace, and counties (what the opinion held): The opinion held that article 103.0031 reaches only amounts ordered to be paid by a court. A fine a justice of the peace merely suggests as acceptable on arrest, with no order entered, is not collectible by a private attorney or vendor under that article.

Private collection vendors (what the opinion held for them): The opinion held that a contract under article 103.0031 cannot be used to collect a suggested fine in this posture, because the statute's collection authority and the added collection fee it allows apply only to debts ordered paid by a court.

Common questions

Can a county send a "suggested" justice-of-the-peace fine to a private collector?
No. The opinion held that article 103.0031 applies only to debts ordered to be paid by a court, and an informally suggested fine with no order entered does not qualify.

What makes a fine collectible under article 103.0031?
The opinion pointed to the statute's plain language: the debt or account receivable must be "ordered to be paid by a court." Subsection (d) reinforces this by referring to "costs ordered paid by the court."

Does this opinion cover fines set after a hearing?
No. The county attorney's question was limited to cases with no appearance and only a suggested amount. The opinion addressed only that situation, where no order has issued.

Background and statutory framework

Article 103.0031 of the Code of Criminal Procedure, part of chapter 103 on collecting costs, lets the commissioners court of a county or the governing body of a municipality contract with a private attorney or a public or private vendor to collect "debts and accounts receivable such as fines, fees, restitution, and other debts or costs, other than forfeited bonds, ordered to be paid by a court." Tex. Code Crim. Proc. Ann. art. 103.0031(a) (Vernon Supp. 2002). Such contracts may add a collection fee of thirty percent on amounts more than sixty days past due. Id. art. 103.0031(b). Subsection (d) refers to a collector recovering "costs ordered paid by the court," confirming that the amounts subject to collection are those ordered paid by a court. Id. art. 103.0031(d); see Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998) (statutory provisions read in context of the entire act). The opinion declined to apply the doctrine of the last antecedent to detach "ordered to be paid by a court" from "debts and accounts receivable," because the illustrative series refers back to that phrase. See In re M.A.M., 35 S.W.3d 788, 790 (Tex. App.-Beaumont 2001, no pet.). Because no order had issued in the described situation, the statute did not apply by its terms. See Marx v. State, 987 S.W.2d 577, 582 (Tex. Crim. App. 1999) (en banc) (focusing on the literal text of the statute).

Citations

Statutes:

• Tex. Code Crim. Proc. Ann. art. 103.0031(a), (b), (d) (Vernon Supp. 2002)

Cases:

• In re M.A.M., 35 S.W.3d 788, 790 (Tex. App.-Beaumont 2001, no pet.)
• Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998)
• Marx v. State, 987 S.W.2d 577, 582 (Tex. Crim. App. 1999) (en banc)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0516
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0516.pdf

Original opinion text

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

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS
JOHN CORNYN

June 24, 2002

The Honorable Robert B. Scheske Opinion No. JC-0516
Gonzales County Attorney
P.O. Box 3 Re: Applicability of article 103.0031 of the Code
Gonzales, Texas 78629-0003 of Criminal Procedure when a defendant has
failed to appear in a Class C misdemeanor case
(RQ-0485-JC)

Dear Mr. Scheske:

You have asked this office whether a fine suggested by a justice of the peace in connection with the issuance of an arrest warrant for the failure of a defendant to appear in a Class C misdemeanor case is a "debt[] [or] account[] receivable . . . ordered to be paid by a court," TEX. CODE CRIM. PROC. ANN. art. 103.0031(a) (Vernon Supp. 2002), that may be collected by a private vendor pursuant to article 103.0031 of the Code of Criminal Procedure. We conclude that, absent an order by the magistrate, a "suggested" fine is not within the terms of article 103.0031.

Chapter 103 of the Code of Criminal Procedure is generally concerned with the powers, means, and procedures for collecting various costs. It forms part of title 2 of the code, a nonsubstantive recodification enacted by the Sixty-ninth Legislature. See Act of May 17, 1985, 69th Leg., R.S., ch. 269, 1985 Tex. Gen. Laws 1300, 1305-06. Article 103.0031(a) provides:

            The commissioners court of a county or the governing body of a municipality may enter into a contract with a private attorney or a public or private vendor for the provision of collection services for debts and accounts receivable such as fines, fees, restitution, and other debts or costs, other than forfeited bonds, ordered to be paid by a court serving the county or a court serving the municipality, as appropriate.

Id. (emphasis added). Such contracts may authorize the addition of collection fees of thirty percent on debts or accounts receivable that are more than sixty days past due. See art. 103.0031(b) (Vernon Supp. 2002).

As you explain the situation which gives rise to your request, a traffic citation is issued and the defendant by signing the ticket makes a promise to appear before the justice of the peace. The defendant fails to keep that promise, and the justice of the peace issues an arrest warrant based on the failure to appear. "Often in connection with this warrant, the court suggests a fine that would be acceptable to the Justice of the Peace upon the arrest of the violator. The acceptable fine can be paid to the magistrate when arrested."[1] As your second letter to us makes clear, you are not concerned with a situation in which a fine has been ordered after a judicial hearing, but rather "class C misdemeanor cases in which there has been no appearance in the case by the defendant and the amount of the fine is suggested as an acceptable fine by the judge or justice."[2] We take this to mean that no order has been issued and that only an informal suggestion has been made.

The debts that may be collected under article 103.0031 are, according to the plain language of the statute, those which have been "ordered to be paid by a court." TEX. CODE CRIM. PROC. ANN. art. 103.0031(a). It has been suggested in a brief submitted to this office that, in line with the doctrine of the last antecedent, see, e.g., In re M.A.M., 35 S.W.3d 788, 790 (Tex. App.-Beaumont 2001, no pet.), the phrase "ordered to be paid by a court" might be held only to modify "fines, fees, restitution, and other debts or costs" and not "the more remote words 'debts and accounts receivable'."[3]

One principal difficulty with this argument is that the phrase "such as fines, fees, restitutions, and other debts or costs" is a single illustrative series referring precisely to "debts and accounts receivable." Further, subsection (d) of article 103.0031 begins with the words, "If a private attorney or private vendor collects from a person owing costs ordered paid by the court an amount that is less than the total costs . . . ." TEX. CODE CRIM. PROC. ANN. art. 103.0031(d) (Vernon Supp. 2002) (emphasis added). Reading the language of subsections (a) and (d) together, then, it is clear that the sums a lawyer or collection agency may contract with the commissioners to collect are those "ordered paid by the court." See Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998) (statutory provisions to be considered in context of entire act).

In the situation you describe, however, there has been no such order. When, as here, no order has been issued, article 103.0031 is not, by its terms, applicable. See, e.g., Marx v. State, 987 S.W.2d 577, 582 (Tex. Crim. App. 1999) (en banc) (in construing statute, court "necessarily focus[es] . . . attention on the literal text of the statute in question.").

                                   SUMMARY

            Article 103.0031 of the Code of Criminal Procedure is inapplicable in a case in which a justice of the peace has informally suggested an acceptable fine.

                                        Very truly yours,

                                        JOHN CORNYN
                                        Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Robert B. Scheske, Gonzales County Attorney, to Susan Denmon Gusky, Chair, Opinion Committee, Office of Attorney General, at 1 (Dec. 27, 2001) (on file with Opinion Committee).

[2] Letter from Honorable Robert B. Scheske, Gonzales County Attorney, to Susan Denmon Gusky, Chair, Opinion Committee, Office of Attorney General, at 1 (Jan. 22, 2002) (on file with Opinion Committee).

[3] Brief from F. Duane Force, Linebarger, Goggan, Blair, Pena & Sampson, L.L.P., to Honorable John Cornyn, Texas Attorney General, at 6 (Jan. 17, 2002) (on file with Opinion Committee).