Does a Virginia Commonwealth's Attorney have to collect unpaid toll judgments owed to a private toll facility operator?

Plain-English summary

The Portsmouth Commonwealth's Attorney asked whether either Code § 19.2-349 or the Master Guidelines Governing Collection (the state's compensation-board manual for collecting unpaid court-ordered fines and costs) required her to collect unpaid toll judgments awarded to a private toll facility operator. A private toll facility operates in Portsmouth, generating this kind of judgment.

The Attorney General said no, on both counts. This opinion was issued the same day as a more detailed companion opinion (AG Opinion 18-021 to Delegate Heretick). In 18-021, the AG worked through the full reasoning: § 19.2-349 does not apply to civil-penalty judgments under § 46.2-819.3:1 for private toll facilities because doing so would create an incoherent piecemeal collection process where the Commonwealth's Attorney and the private operator compete for the same defendant's assets. The Master Guidelines do not contradict that conclusion, so they do not impose a duty either. The AG took the conclusion from 18-021 and applied it to the Portsmouth CA's specific question.

Currency note

This opinion was issued in 2019. 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

Code § 19.2-349(C) directs the Commonwealth's Attorney to "cause proper proceedings to be instituted for the collection and satisfaction of all fines, costs, forfeitures, penalties and restitution." Code § 46.2-819.3:1 creates the civil-penalty regime for all-electronic toll facilities, including private ones. The two statutes do not mesh well: judgments under § 46.2-819.3:1 have four components (civil penalty, unpaid tolls, administrative fees, court costs), and only "civil penalties" and "court costs" arguably fit the § 19.2-349 categories. If the CA collected the penalty/costs portion while the private operator collected the rest separately, two creditors would compete for the same defendant's assets.

The AG worked through that reasoning in detail in companion opinion 18-021 (issued the same day to Delegate Heretick). Reading § 19.2-349 to require CA collection of private-toll judgments produces an "absurd" result; statutory construction presumes the legislature did not intend that. Code § 46.2-819.3:1(G) confirms the conclusion by expressly using permissive "may" rather than mandatory "shall" when describing the CA's role.

The Master Guidelines Governing Collection of Unpaid Delinquent Court-Ordered Fines and Costs (July 1, 2017) is the Compensation Board's manual for implementing § 19.2-349. The AG concluded the Master Guidelines do not contravene the analysis in 18-021. Because the underlying statute does not impose the duty, the agency guidelines cannot create one.

Common questions

Does this opinion add anything beyond 18-021?
Mainly the confirmation that the Master Guidelines do not change the analysis. The substantive reasoning is in 18-021.

Can the Portsmouth CA still represent the private toll operator if she chooses?
Yes. Code § 46.2-819.3:1(G) expressly permits a CA to represent the operator's interests. The opinion makes clear that representation is permissive, not mandatory.

What happens to unpaid toll judgments if the CA declines?
The private toll operator can collect on its own using standard judgment-execution tools: docketing the judgment, placing liens on real estate, obtaining a writ of fieri facias. The operator can also trigger DMV's refusal to renew registration or plates for the offending vehicle under § 46.2-819.3:1(K).

Is the Master Guidelines manual binding on the CA?
The Master Guidelines flow from § 19.2-349, which itself is the operative statute. If the underlying statute does not impose the duty, the Compensation Board's guidelines cannot expand the statutory duty. The Compensation Board sets policy and procedures for what § 19.2-349 already requires; it does not create new collection duties.

Why was this issued as a separate opinion from 18-021?
The Portsmouth CA had a specific question about her own duty, and the AG issued a parallel opinion confirming the same conclusion for her. The two opinions were issued the same day. The substantive analysis lives in 18-021; this one applies that analysis to the Portsmouth situation.

Citations

• Va. Code § 19.2-349 (CA collection duty)
• Va. Code § 46.2-819.3:1 (toll civil-penalty statute)
• 2019 Op. Va. Att'y Gen. No. 18-021 (Heretick)
• Master Guidelines Governing Collection of Unpaid Delinquent Court-Ordered Fines and Costs (July 1, 2017)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2019/18-034-Morales-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

June 28, 2019

The Honorable Stephanie N. Morales
Commonwealth's Attorney, City of Portsmouth
Portsmouth Judicial Center
1345 Court Street, Suite 105
Portsmouth, Virginia 23704

Dear Ms. Morales:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of
the Code of Virginia.

Issue Presented
You ask whether a Commonwealth's Attorney is required by § 19.2-349 of the Code of Virginia
or the Master Guidelines Governing Collection to collect unpaid toll judgments awarded to a private toll
facility operator[1] under § 46.2-819.3:1.

Applicable Law and Discussion
Section 46.2-819.3:1 authorizes the imposition of civil penalties, unpaid tolls, administrative fees,
and court costs against the owners or operators of vehicles who fail to pay a toll after statutory notice and
collection attempts.[2] In a previous Opinion, I concluded that § 19.2-349 does not require a
Commonwealth's Attorney to collect a judgment of civil penalties, unpaid tolls, administrative fees, and
court costs awarded under § 46.2-819.3:1 for toll violations occurring at a private toll facility.[3] The
Master Guidelines Governing Collection do not contravene this previous Opinion.[4]

Conclusion
Accordingly, it is my opinion that § 19.2-349 does not require the Commonwealth's Attorney to
collect a judgment of civil penalties, unpaid tolls, administrative fees, and court costs awarded under
§ 46.2-819.3:1 for toll violations occurring at a private toll facility.
With kind regards, I am,

Very truly yours,

Mark R. Herring
Attorney General

1. While you do not expressly state that your question concerns a privately-operated toll facility, your request refers to toll operators other than the Department of Transportation, and independent of your correspondence, I am aware that a private toll facility is operated in the City of Portsmouth. See VA. DEP'T OF TRANSPORTATION, TOLL TRANSACTION DATA FEASIBILITY REPORT (2018), at 8 & 10, available at https://rga.lis.virginia.gov/Published/2018/RD264/PDF.

2. VA. CODE ANN. § 46.2-819.3:1 (2017).

3. 2019 Op. Va. Att'y Gen. No. 18-021 to the Honorable Stephen E. Heretick, June 28, 2019, available at https://www.oag.state.va.us/citizen-resources/opinions/official-opinions/30-resource/opinions/1357-2019-official-opinions.

4. See MASTER GUIDELINES GOVERNING COLLECTION OF UNPAID DELINQUENT COURT-ORDERED FINES AND COSTS PURSUANT TO VIRGINIA CODE § 19.2-349 (July 1, 2017), available at https://www.scb.virginia.gov/docs/guidelinesfinesandfees.pdf.