Can a Texas county attorney keep a commission on bond forfeiture money?

Plain-English summary

Washington County Attorney Renee Ann Mueller asked the AG a narrow question about prosecutor pay. Her office had criminal jurisdiction over adult misdemeanors and represented the state in bond forfeiture proceedings that grew out of those criminal cases. She wanted to know whether Government Code section 41.005 lets a county attorney keep a slice of the money collected in bond forfeitures as a commission, without first getting the commissioners court to sign off.

The AG said the statute answers the question on its face. Section 41.005(b) provides that a "district or county attorney may retain a commission from money collected for the state or a county," set at 10 percent of the first $1,000 collected and five percent of the amount above $1,000. An earlier opinion, GA-0997 (2013), had already concluded that section 41.005 lets a district attorney separate out a bond-forfeiture commission without commissioners court approval. That earlier opinion only addressed district attorneys because that is all the prior requestor had asked about, but the AG noted that section 41.005 grants the same authority to county attorneys. Because the statute had not been amended and nothing in the law had changed, the AG carried the same conclusion over to county attorneys: a county attorney with criminal jurisdiction who represents the state in bond forfeiture proceedings may retain the commission without the commissioners court's approval.

The AG was careful to mark what it was not deciding. In a footnote, it noted the requestor had not asked about the disposition of bond forfeiture commissions (what happens to the money afterward), so the opinion did not address that and pointed back to GA-0997 for the principles that govern a retained commission.

Currency note

This opinion was issued in 2015. 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.

What the opinion meant for those who asked

County attorneys with criminal jurisdiction (as the opinion described it): The opinion described section 41.005(b) as authorizing a county attorney who represents the state in related bond forfeiture proceedings to retain a commission from the money collected, on the same terms as a district attorney, and without approval from the commissioners court.

Commissioners courts (as the opinion described it): The opinion described the commission as something the county attorney may retain "without the approval of the commissioners court," so it did not treat commissioners court sign-off as a precondition to the commission.

Where the AG declined to opine: The opinion expressly noted that the requestor did not ask about the disposition of bond forfeiture commissions and stated, "we do not address that issue here," pointing to GA-0997 for the governing principles. The page does not address what a county attorney must do with the commission after retaining it, because the opinion did not.

Common questions

Can a Texas county attorney keep part of the bond forfeiture money as a commission?
Yes, according to this opinion, if the county attorney has criminal jurisdiction and represents the state in the bond forfeiture proceedings. The AG read Government Code section 41.005(b) to authorize that commission.

How much is the commission?
The statute quoted in the opinion sets it at 10 percent of the first $1,000 collected and five percent of the amount collected over $1,000 in any one case.

Does the commissioners court have to approve it?
No. The AG concluded the county attorney may separate out the commission "without the approval of the commissioners court."

Why did the AG rely on an opinion about district attorneys?
Because section 41.005 grants the same authority to county and district attorneys. An earlier opinion, GA-0997 (2013), had reached this conclusion for district attorneys, and since the statute had not changed, the AG applied the same reasoning to county attorneys.

Background and statutory framework

The question was whether a county attorney with criminal jurisdiction may retain a commission on bond forfeiture collections under Government Code section 41.005 without commissioners court approval. Subsection 41.005(b) allows a "district or county attorney" to "retain a commission from money collected for the state or a county," set at 10 percent of the first $1,000 collected and five percent of the amount over $1,000 (Tex. Gov't Code Ann. § 41.005(b)). A prior opinion had concluded that section 41.005 authorizes a district attorney to separate a bond-forfeiture commission without commissioners court approval but did not address county attorneys because the earlier request was limited to district attorneys.

The AG observed that section 41.005 plainly grants the same authority to both county and district attorneys to whom it applies (Tex. Gov't Code Ann. § 41.005(a)-(b)), that the statute had not been amended since the earlier opinion, and that no change in pertinent law warranted revisiting the analysis. Bond forfeiture proceedings are treated as criminal matters that a county attorney with criminal jurisdiction may handle (see Tex. Code Crim. Proc. Ann. art. 2.02; Ranger Ins. Co. v. State, 312 S.W.3d 266, 268 (Tex. App.-Dallas 2010, pet. dism'd); In re State ex rel. Rodriguez, 166 S.W.3d 894, 897-98 (Tex. App.-El Paso 2005, orig. proceeding)). The AG accordingly concluded that subsection 41.005(b) authorizes a county attorney with criminal jurisdiction who represents the state in related bond forfeiture proceedings to retain the commission without the commissioners court's approval.

Citations

Statutory provisions:

• Tex. Gov't Code Ann. § 41.005(a)-(b) (district or county attorney's commission on money collected)
• Tex. Code Crim. Proc. Ann. art. 2.02 (duties of a county attorney in criminal cases)

Cases:

• Ranger Ins. Co. v. State, 312 S.W.3d 266, 268 (Tex. App.-Dallas 2010, pet. dism'd)
• In re State ex rel. Rodriguez, 166 S.W.3d 894, 897-98 (Tex. App.-El Paso 2005, orig. proceeding)

Prior Attorney General opinions referenced:

• Tex. Att'y Gen. Op. No. GA-0997 (2013)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0030
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0030.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

August 10, 2015

The Honorable Renee Ann Mueller Opinion No. KP-0030
Washington County Attorney
100 East Main, Suite 200 Re: Whether a county attorney with criminal
Brenham, Texas 77833 jurisdiction may, pursuant to section 41.005,
Government Code, retain a commission on
bond forfeiture collection (RQ-0010-KP)

Dear Ms. Mueller:

You state that your office "has criminal jurisdiction over adult misdemeanors and represents the State in bond forfeiture proceedings arising out of these criminal proceedings." [1] You ask "whether section 41.005 of the Government Code authorizes a County Attorney to separate a portion of bond forfeiture collections as a commission without the approval of the commissioners court." Request Letter.

Subsection 41.005(b) of the Government Code states that a "district or county attorney may retain a commission from money collected for the state or a county. The amount of the commission in any one case is 10 percent of the first $1,000 collected, and five percent of the amount collected over $1,000." TEX. GOV'T CODE ANN. § 41.005(b) (West 2004). A prior opinion of this office addressed whether section 41.005 authorizes a district attorney to retain a commission on money obtained through bond forfeiture proceedings without the approval of the commissioners court. See Tex. Att'y Gen. Op. No. GA-0997 (2013) at 1. Construing the statute and considering other pertinent law, the opinion concludes, in part:

Section 41.005 of the Government Code authorizes a district attorney to separate a portion of bond forfeiture collections as a commission without the approval of the commissioners court.

Id. at 2. The opinion does not discuss county attorney authority because the requestor asked only about district attorneys. Id. at 1. Section 41.005, however, plainly grants the same authority to both county and district attorneys to whom the statute applies. TEX. GOV'T CODE ANN. § 41.005(a)-(b) (West 2004). Section 41.005 has not been amended since the opinion was issued, and we are not aware of any change in pertinent law to cause us to reconsider the opinion's analysis. Accordingly, subsection 41.005(b) of the Government Code authorizes a county attorney with criminal jurisdiction who represents the state in bond forfeiture proceedings to separate a specified amount of bond forfeiture collections as a commission without the approval of the commissioners court. [2]

SUMMARY

Subsection 41.005(b) of the Government Code authorizes a county attorney with criminal jurisdiction who represents the state in related bond forfeiture proceedings to retain a portion of bond forfeiture collections as a commission without the approval of the commissioners court.

Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Mr. John Winkelmann, Ass't Washington Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. (Feb. 11, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). See also TEX. CODE CRIM. PROC. ANN. art. 2.02 (West 2005) (stating duties of county attorney in criminal cases); Ranger Ins. Co. v. State, 312 S.W.3d 266, 268 (Tex. App.-Dallas 2010, pet. dism'd) (stating, "It is well settled that bond forfeiture cases are criminal matters ... ."); In re State ex rel. Rodriguez, 166 S.W.3d 894, 897-98 (Tex. App.-El Paso 2005, orig. proceeding) (recognizing that county attorney had authority to represent the state in bond forfeiture proceedings under the constitution, statutes, and an agreement with the district attorney).

[2] You do not ask about the disposition of bond forfeiture commissions. While we do not address that issue here, Attorney General Opinion GA-0997 explains the principles governing a district or county attorney who retains a commission under section 41.005 of the Government Code. See generally Tex. Att'y Gen. Op. No. GA-0997 (2013).