Can a Texas county commissioners court collect court fines and fees on its own, or does it have to go through the county clerk?

Plain-English summary

The El Paso County Auditor asked the AG a cluster of questions about who controls the collection of court costs, fines, and fees in a Texas county. For years El Paso had run a consolidated collections department under the county clerk. That department referred accounts more than 60 days past due to a private collection service, which told people to pay the court directly. The county then changed the setup: it moved the collections function out of the clerk's office into a department the commissioners court designated, and it signed a new contract that let a private firm receive payments into the firm's own account and remit the county's share, minus its fee, the next business day. The auditor wanted to know whether the commissioners court had authority to do all that.

The opinion turned on article 103.003 of the Code of Criminal Procedure. Subdivision (a) lists officers who "may collect money payable under this title," including district and county attorneys, clerks, sheriffs, constables, and justices of the peace. Subdivision (b-1), added later, says a commissioners court that has implemented a collection improvement program under article 103.0033 "may collect money payable under this title or under other law." The auditor argued that because the improvement program has to include a component aimed at delinquent accounts, the commissioners court's authority must be limited to delinquent payables, and that for everything else the court needed a listed officer's consent.

The AG disagreed. The statute grants authority concurrently to the commissioners court and to the listed officers, and neither subdivision conditions that authority on anyone's prior approval. The only actors who need written approval to collect are a community supervision and corrections department and a county treasurer under subdivision (b). The fact that a collection improvement program must address delinquent accounts does not shrink the commissioners court's authority down to delinquent accounts only.

From there the AG answered the follow-on questions in the "a court would likely conclude" register the opinion process uses for predictions. A commissioners court that holds collection authority may employ assistants to carry out its responsibilities, so it may establish a county department to help collect. A commissioners court may not stop a clerk from accepting a payment a defendant offers, but it may set up and supervise a county collection department to go after outstanding payables, because the Legislature can assign duties to both the clerk and the commissioners court. And on the contract question, because private-firm collections are governed by contract under article 103.0031, the contract may let the firm collect into its own account, keep the added collection fee, and deposit the county's money with the county treasurer within the statutory deadline.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. In particular, the Legislature later repealed article 103.003(b-1) of the Code of Criminal Procedure, so the specific provision this opinion construed is no longer on the books in that form. 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 El Paso County Auditor who requested the opinion: The AG told him the commissioners court's reading of its own authority was the correct one. The court did not need a clerk's consent to collect non-delinquent payables, its authority under the statute was not capped at delinquent accounts, and the moves the county had already made, shifting collections to a designated department and contracting with a private firm, fit within what the opinion said a court would likely uphold.

The commissioners court (as the opinion described it): The opinion treated the court as holding independent, statute-based collection authority once it had implemented a collection improvement program, including the authority to create an in-house collections department and to structure a private-firm contract around the account-handling rules in article 103.0031.

County clerks and other listed officers: The opinion described the clerks, sheriffs, constables, and attorneys in subdivision (a) as keeping their own concurrent authority. A commissioners court could not bar a clerk from taking a payment a defendant tendered, but the clerk's role did not give it a veto over the commissioners court collecting outstanding amounts.

Common questions

Who is allowed to collect court fines and fees in a Texas county?
At the time of this opinion, article 103.003 named several collectors at once: district and county attorneys, clerks, sheriffs, constables, and justices of the peace under subdivision (a), and a commissioners court that had implemented a collection improvement program under subdivision (b-1). The AG read these as concurrent, independent grants of authority.

Did the commissioners court need the county clerk's permission?
No. The AG said neither the commissioners court's authority nor the listed officers' authority was conditioned on prior approval. Only a community supervision and corrections department and a county treasurer had to get written approval from the clerk or fee officer to collect.

Was the commissioners court limited to collecting only past-due accounts?
No. The auditor argued the authority was capped at delinquent payables because the improvement program had to include a delinquent-account component. The AG rejected that, saying a required program component does not limit the scope of the collection authority itself.

Could a private collections firm keep payments in its own account before paying the county?
The AG said a court would likely allow it. Because private-firm collections run through a contract under article 103.0031, the contract could let the firm collect into its own account, retain the added collection fee, and then deposit the county's money with the county treasurer, as long as it met the deposit deadline in the Local Government Code.

Background and statutory framework

Article 103.003 of the Code of Criminal Procedure, in title 2 of the code, lists who may collect money payable under that title. Subdivision (a) allows district and county attorneys, clerks of district and county courts, sheriffs, constables, and justices of the peace to collect. Subdivision (b) allows a community supervision and corrections department and a county treasurer to collect with the written approval of the clerk of the court or fee officer. Subdivision (b-1) provides that the commissioners court of a county that has implemented a collection improvement program under article 103.0033 may collect money payable under the title or under other law. Subdivision (c) provides that the article does not limit a commissioners court's authority to contract with a private vendor or attorney for collection services under article 103.0031 (Tex. Code Crim. Proc. art. 103.003).

Article 103.0033 requires a county with a population of 100,000 or greater to implement a program to improve the collection of court costs, fees, and fines imposed in criminal cases, and the program must include a component designed to improve in-house collections and a component designed to improve collection of balances more than 60 days past due (Tex. Code Crim. Proc. art. 103.0033(a)(3), (b), (d)). The Office of Court Administration's rules allow local program activities to be assigned to one employee or distributed among several (1 Tex. Admin. Code § 175.3(a)(1) (2018)). Because a commissioners court may employ assistants to carry out its responsibilities, the AG predicted a court would likely conclude the commissioners court may establish a county department in aid of its collection authority (Guynes v. Galveston Cty., 861 S.W.2d 861, 863-64 (Tex. 1993)).

The AG distinguished an earlier opinion that a commissioners court may not create a collections department under the county treasurer without the county clerk's consent, because at that time the treasurer was not an official authorized in article 103.003; here the authority came from a statute, not merely a commissioners court order (Tex. Att'y Gen. Op. No. GA-0332 (2005)). The Legislature may prescribe duties to both the county clerk and the commissioners court (Tex. Const. art. V, § 20; City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003)). While a commissioners court may not prohibit a clerk from collecting payables a defendant offers, it may establish and supervise a county collection department to collect outstanding payables (Comm'rs Ct. of Titus Cty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997)). The clerk's specific fee-collection duties under provisions such as articles 102.0045(b), 102.005(f), and 102.017(d) of the Code of Criminal Procedure and section 102.081 of the Government Code did not give the clerk exclusive control.

On the contract question, article 103.0031 lets a commissioners court contract for collection services and add a collection fee to a payable more than 60 days past due that has been referred for collection; the court must receive all fees, including the collection fee, unless the contract provides otherwise (Tex. Code Crim. Proc. art. 103.0031(b)). The Local Government Code requires a person who collects money belonging to a county to deposit it with the county treasurer, generally by the next regular business day after receipt, and no later than the fifth business day if that deadline cannot be met (Tex. Loc. Gov't Code §§ 113.021(a), 113.022(a)). The AG distinguished an opinion barring a county official from depositing collected county funds in the official's own depository account, because that concerned funds collected by a county official, not payables collected by a private firm under article 103.0031 (Tex. Att'y Gen. Op. No. GA-0636 (2008)).

Citations

Cases and Attorney General opinions:

• Guynes v. Galveston Cty., 861 S.W.2d 861, 863-64 (Tex. 1993)
• Comm'rs Ct. of Titus Cty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997)
• City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003)
• Tex. Att'y Gen. Op. No. GA-0332 (2005)
• Tex. Att'y Gen. Op. No. GA-0636 (2008)

Statutes and rules:

• Tex. Code Crim. Proc. art. 103.003
• Tex. Code Crim. Proc. art. 103.0031
• Tex. Code Crim. Proc. art. 103.0033
• Tex. Code Crim. Proc. arts. 102.0045(b), 102.005(f), 102.017(d)
• Tex. Gov't Code § 102.081
• Tex. Const. art. V, § 20
• Tex. Loc. Gov't Code §§ 113.021(a), 113.022(a)
• 1 Tex. Admin. Code § 175.3(a)(1) (2018)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0203
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2018/kp0203.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

May 16, 2018

Mr. Edward A. Dion, CPA, CIO Opinion No. KP-0203
El Paso County Auditor
800 East Overland Street, Room 406 Re: County authority to collect or delegate
El Paso, Texas 79901-2407 the collection of money owed to the county
(RQ-0200-KP)

Dear Mr. Dion:

    You ask several questions about the El Paso County Commissioners Court's authority under article 103.003 of the Code of Criminal Procedure to collect or delegate the collection of money owed to the county. [1] You tell us that formerly, the commissioners court created a consolidated collections department under the county clerk to collect county costs, fines, and fees assessed by county courts and justice courts. Request Letter at 1. Under prior practice, the collections department automatically referred payables that became more than 60 days past due to a private collection service retained by contract with the county, and the collection service directed payors to send payments directly to the court that imposed the fees and fines. Id. at 3, 6. Recently, you tell us, the commissioners court moved the consolidated collections function from the clerk's office to a county department that the commissioners court designated to handle collections on the commissioners court's behalf. Id. at 3. You further state that the county entered into a new contract with a private collections firm that allows the firm to receive and deposit payments into its own account, then remit the payment, less any collections fee, to the county by the next regular business day after receiving the payment. Id. at 3-4. You ask multiple overlapping questions about two main issues: (1) the commissioners court's collection authority under article 103.003(b-1), as it relates to the collection authority of officers listed in article 103.003(a); and (2) the commissioners court's authority to contract with private collection firms or attorneys. Id. at 4 (citing TEX. CODE CRIM. PROC. art. 103.003(a), (b-1)).

    Article 103.003, located in title 2 of the Code of Criminal Procedure, provides:

             (a) District and county attorneys, clerks of district and county courts, sheriffs, constables, and justices of the peace may collect money payable under this title.

             (b) A community supervision and corrections department and a county treasurer may collect money payable under this title with the written approval of the clerk of the court or fee officer, and may collect money payable as otherwise provided by law.

             (b-1) The commissioners court of a county that has implemented a collection improvement program under Article 103.0033 may collect money payable under this title or under other law.

             (c) This article does not limit the authority of a commissioners court to contract with a private vendor or private attorney for the provision of collection services under Article 103.0031.

TEX. CODE CRIM. PROC. art. 103.003. You suggest that the commissioners court's authority in subdivision (b-1) refers only to payables that are over 60 days past due ("delinquent") because that provision refers to a collection improvement program that must include a component to address delinquent payables. [2] Request Letter at 4-7. Therefore, you assert, the commissioners court lacks authority of its own to collect non-delinquent payables, and the commissioners court may collect such payables only if it obtains the consent of an official listed in article 103.003(a). Id.

    Article 103.003 grants independent authority concurrently to the commissioners courts specified by subdivision (b-1) and to the officers specified in subdivision (a). TEX. CODE CRIM. PROC. art. 103.003(a), (b-1). Neither subdivision conditions authority on prior approval. Rather, only a supervision and corrections department and a county treasurer must obtain written approval of the court clerk or fee officer to collect payables. Id. art. 103.003(b). Subdivision (b-1) merely identifies the commissioners courts that possess collection authority - those that have implemented a collection improvement program under article 103.0033. Id. art. 103.003(b-1). The fact that such a program requires a component to address delinquent payables does not limit the applicability of subdivision (b-1) to only delinquent payables.

    You question the authority of the commissioners court to "delegate the duty" of non-delinquent collections to the newly created in-house department. Request Letter at 4. A commissioners court that implements a collections improvement program pursuant to article 103.0033 must include a component of the program that conforms with a model developed by the Office of Court Administration. TEX. CODE CRIM. PROC. art. 103.0033(d)(1). The Office of Court Administration rules allow local program activities to "be assigned to one individual employee or distributed among two or more employees." 1 TEX. ADMIN. CODE § 175.3(a)(1) (2018) (Tex. Judicial Council, Collection Improvement Program). However, neither the Office of Court Administration's rules nor article 103.0033 addresses which officer or officers must supervise and administer the in-house collections component. Article 103.003(b-1) grants collections authority to a commissioners court implementing the program, and a commissioners court may employ assistants in the performance of the commissioners court's responsibilities. TEX. CODE CRIM. PROC. art. 103.003(b-1); see, e.g., Guynes v. Galveston Cty., 861 S.W.2d 861, 863-64 (Tex. 1993) (recognizing commissioners court's implied authority to employ a permanent legal staff to assist the commissioners in carrying out their responsibilities). Accordingly, a court would likely conclude that a commissioners court may establish a county department in aid of the commissioners court's collection authority.

    You raise an attorney general opinion that concluded that a commissioners court may not create a collections department supervised by the county treasurer without the consent of the county clerk. Request Letter at 6 (citing Tex. Att'y Gen. Op. No. GA-0332 (2005)). Attorney General Opinion GA-0332 reached that conclusion because, at that time, the county treasurer was not one of the officials authorized in article 103.003. Tex. Att'y Gen. Op. No. GA-0332 (2005) at 1, 4 n.5. The opinion reasoned further that a commissioners court does not have the authority to reassign a court clerk's statutory duties to collect certain fees to a collections department under the treasurer. Id. at 3-4. However, this reasoning is inapplicable here because the collection authority in article 103.003(b-1) derives from a statute, not merely from a commissioners court order. TEX. CODE CRIM. PROC. art. 103.003(b-1). You ask whether the commissioners court's collection authority conflicts with statutes specifically requiring a court clerk to collect certain fees. Request Letter at 6; see, e.g., TEX. CODE CRIM. PROC. arts. 102.0045(b) (juror services fee), 102.005(f) (records management fee), 102.017(d) (security fee); TEX. GOV'T CODE § 102.081 (requiring clerk to collect payment of certain costs upon a defendant's conviction). However, the Legislature may prescribe duties to both the county clerk and the commissioners court. See TEX. CONST. art. V, § 20 (providing that county clerk's duties "shall be prescribed by the Legislature"); City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003) (stating that "commissioners courts are subject to the Legislature's regulation"). In article 103.003, the Legislature granted collection authority to the commissioners court in addition to that of the court clerks. A court would likely conclude that, while a commissioners court may not prohibit a clerk from collecting payables proffered by a defendant, a commissioners court may establish and supervise a county collection department to collect outstanding payables. Cf. Comm'rs Ct. of Titus Cty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997) (determining that a commissioners court may delegate a function that statutes do not delegate exclusively to one officer); Guynes, 861 S.W.2d at 863-64 (determining that commissioners court could establish a civil legal department because the county attorney does not have exclusive duty to represent the county in civil matters).

    Finally, you ask about the authority of the commissioners court to structure a contract with a collections firm to allow the firm to deposit payables it collects in its own account and retain the additional collections fee before remitting payment to the county. Request Letter at 4, 7-9. [3] You suggest that the analysis in Attorney General Opinion GA-0636 would not permit that practice because the opinion determined that a county official does not have authority to deposit amounts collected by the official in an account that the official maintains in the county depository in the official's name. Id. at 8; see Tex. Att'y Gen. Op. No. GA-0636 (2008) at 3-4. However, that opinion concerned county funds collected by a county official, not payables collected by a private collections firm under article 103.0031(b).

    Under article 103.0031, a commissioners court's contract with a collections service may allow adding a collection fee to a payable "that is more than 60 days past due and has been referred to the attorney or vendor for collection." TEX. CODE CRIM. PROC. art. 103.0031(b). The statute requires generally that the court must "receive all fees, including the collection fee," but not if the "contract provides otherwise." Id. Thus, the statute allows the contract to govern the initial receipt of collected payables.

    The Local Government Code requires that any person who collects "fees, commissions, funds, and other money belonging to a county" must deposit those amounts with the county treasurer. TEX. LOC. GOV'T CODE § 113.021(a). Generally, the deposit must occur by the next regular business day after the date on which the money is received. Id. § 113.022(a). [4] The statutes do not address how a collections firm employed under article 103.0031 must accomplish the deposit. A court would likely conclude that because collections by a private collections firm are governed by contract under article 103.0031, the contract may allow the firm to collect payables into its own account, retain the additional collections fee, and deposit county money with the county treasurer, provided that the firm does so within the time permitted by statute.

                                    SUMMARY

                   Article 103.003(b-1) of the Code of Criminal Procedure authorizes a county commissioners court to collect amounts payable under title 2 of the code independently of the officials listed in article 103.003(a).

                    A court would likely conclude that article 103.003(b-1) authorizes a commissioners court to create a county department to assist the commissioners court to collect such payables.

                   A court would likely conclude that a commissioners court may contract with a collections firm, permitting the firm to collect payables into its own account, retain the additional collections fee, and deposit county money with the county treasurer, provided that the firm does so within the time permitted by statute.

                                           Very truly yours,

                                           KEN PAXTON
                                           Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Mr. Edward A. Dion, El Paso Cty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. at 4 (Dec. 8, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinions-rqs ("Request Letter").

[2] Article 103.0033 requires a county with a population of 100,000 or greater to implement a "program to improve the collection of court costs, fees, and fines imposed in criminal cases." TEX. CODE CRIM. PROC. art. 103.0033(a)(3), (b). The program must include (1) a component "designed to improve in-house collections for eligible cases" and (2) a component "designed to improve the collection of balances for eligible cases more than 60 days past due, which may be implemented by entering into a contract with a private attorney or public or private vendor in accordance with Article 103.0031." Id. art. 103.0033(d). The article applies to El Paso County because its population as of the last decennial census was 800,647. See UNITED STATES CENSUS BUREAU, QUICK FACTS, https://www.census.gov/quickfacts/fact/table/elpasocountytexas/POP010210#viewtop.

[3] Article 103.0031 of the Code of Criminal Procedure authorizes a commissioners court of a county to contract for "collection services for ... debts and accounts receivable such as unpaid fines, fees, court costs, forfeited bonds, and restitution ordered paid by ... a court serving the county." TEX. CODE CRIM. PROC. art. 103.0031(a)(1)(A). Article 103.003 specifies that the collection authority the statute grants to individuals and the commissioners courts "does not limit the authority of a commissioners court to contract with a private vendor or private attorney for the provision of collection services under Article 103.0031." Id. art. 103.003(c).

[4] The statute further provides that if the deadline cannot be met, the fee must be deposited no later than the fifth business day after receipt. TEX. LOC. GOV'T CODE § 113.022(a).