### ATTORNEY GENERAL OFTEXAS
GREG ABBOTT

April 17,2003

The Honorable Carole Keeton Strayhom Comptroller of Public Accounts Lyndon B. Johnson Building P.O. Box 13528 Austin, Texas 7871 l-3528 Opinion No. GA-0061

Re: Whether certain unauthorized fees collected by counties and municipalities that cannot be returned to the persons who paid the fees constitute taxes that must be remitted to the Comptroller under chapter 111ofthe Tax Code or abandoned property governed by the Property Code (RQ-0613-JC)

Dear Comptroller Strayhorn:

You ask about the proper disposition ofcertain fees collected by counties and municipalities pursuant tounauthorized pretrial diversion agreements. Generally, you askwhether fees, and interest earned on the fees, that cannot be returned to the persons who paid the fees, constitute taxes that must be remitted to the Comptroller under chapter 111 of the Tax Code or abandoned property governed by the Property Code. By way ofbackground, you explain that in 1999 this office concluded that, in the absence of express statutory authority, a prosecutor may not enter into an agreement with a defendant whereby the prosecutor defers prosecution in exchange for the defendant’s agreement to contribute money to anonprofit organization. See Tex. Att’y Gen. Op.No. JC-0042 (1999); see also Tex. Att’y Gen. Op. No. JC-0119 (1999) (county attorney may not condition deferral of prosecution on defendant’s payment of money to nonprofit organization incorporated by county attorney and assistant county attorneys). Subsequently, in conducting audits, your office “encountered

. . . programs” under which “aprosecutor collected afee pursuant to anunauthorized pretrial diversion agreement,” and your office “began to assess municipalities and/or counties for funds accumulated from the unauthorized fees.“’

In 2002, the Attorney General was asked to address the proper disposition of funds accumulated pursuant to unauthorized pretrial diversion agreements. See Tex. Att’y Gen. Op. No. JC-0463 (2002). This office concluded that the individuals who paid the fees were entitled to

‘Letter from Billy C. Hamilton, Deputy Comptroller, Comptroller of Public Accounts, to Honorable John Cornyn, Texas Attorney General at l-2 (Sept. 25,2002) (on 1ewith Opinion Committee) [hereinafter Request Letter]. f 1The Honorable Carole Keeton Strayhom - Page 2 (GA-0061)

refunds ofthe fees and interest earned on the fees. See id. at2-3. Inthe event aperson who paid a fee could not be located, the unclaimed fee and interest would become abandoned property that must be delivered to the Comptroller pursuant to chapter 74 ofthe Property Code. See id. at 4.

You agree that unauthorized pretrial diversion agreement fees and interest onthose fees must be refunded to the individuals who paid the fees. See Request Letter, supra note 1, at 2. You disagree, however, that unclaimed fees should be treated as abandoned property under chapter 74 ofthe Property Code. See id. Rather, your office takes the position that acounty ormunicipality that isunable to refund anunauthorized fee must remit the unclaimed fee and interest to the Comptroller
as “local revenue funds,” see id., based on section 111.016 of the Tax Code, which provides in pertinent part that “[a]ny person who receives orcollects atax or any money represented to be atax from another person holds the amount so collected in trust for the benefit of the state and is liable to the state for the full amount collected plus any accrued penalties and interest on the amount collected.” TEX. TAX CODE ANN. 5 111.016(a) (Vernon 2001). Apparently, counties and municipalities disagree that these monies are subject to section 111.016.2

In light ofthis disagreement, you askwhether the unauthorized fees aretaxes or fees subject to chapter 111 ofthe Tax Code. Ifwe conclude that chapter 111 ofthe Tax Code does not apply to the unauthorized fees, you pose aseries ofquestions about how the monies should be handled under the Property Code.

In construing both the Tax Code and the Property Code, we must attempt to give effect to the legislature’s intent. See TEX.GOV’T CODE ANN. 84 311.02 1,3 11.023 (Vernon 1998); Mitchell Energy Corp. v.Ashworth, 943 S.W.2d 436,438 (Tex. 1997). To do so, we construe the Codes according to their plain language. SeeRepublicBank Dallas, N.A. v.Interkal, Inc., 691S.W.2d 605, 607-08 (Tex. 1985); see also Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999) (where codified statute is unambiguous, plain meaning rule applies even if codification is inconsistent with its statutory predecessor). When astatute is ambiguous, we may consider, among other things, the object sought to be attained, the circumstances under which a statute was enacted, legislative history, and the consequences of aparticular construction. See TEX.GOV’T CODEANN. fj311.023 (Vernon 1998); see also id. 6311.021(2)-(4) (“In enacting a statute, it is presumed that

. . .the entire statute is intended to be effective[,] ajust and reasonable result is intended[, and] a result feasible of execution is intended

. . . .“).
I. Chapter 111 ofthe Tax Code

You first ask whether unauthorized pretrial diversion agreement fees are subject to chapter 111 of the Tax Code. Specifically, you ask: “Are the local revenue fees that the comptroller administers a ‘fee’ within the meaning of’ section 101.003( 13)ofthe Tax Code, “with the result that

*See Brief from Bennett Sandlin, Assistant General Counsel, Texas Municipal League, to Susan D. Gusky, Chair, Opinion Committee, Office of the Attorney General (Nov. 19,2002) (on file with Opinion Committee).The Honorable Carole Keeton Strayhom - Page 3 (GA-0061)

they are considered a ‘tax’ for purposes of’ section 111.0022 ofthe Tax Code. See Request Letter, supra note 1, at 3 (Question 1).3
Sections 101.003( 13)and 111.0022 are found intitle 2ofthe Tax Code, which governs state taxation. Section 101.003, a definitional provision, is found in subtitle A of title 2. Section 101.003( 13) defines the word “tax” for purposes of title 2to mean “a tax,fee, assessment, charge,
or other amount that the comptroller is authorized to administer.” TEX.TAX CODE ANN. 8 101.003(13) (Vernon 2001) (emphasis added). Section 111.0022 is found in subtitle B of title 2, which governs the collection and enforcement oftaxes. Chapter 111sets forth collection procedures. Section 111.0022 defines the scope of subtitles A and B, providing that “[tlhis subtitle and Subtitle A of this title apply to the administration, collection, and enforcement ofother taxes,fees, and charges, including penalties, or other financial transactions, that the comptroller isrequired or authorized to collect oradminister under other law, tothe extent that the other law does not conflict with this subtitle or Subtitle A of this title.” Id. § 111.0022 (emphasis added). According to their plain language, sections 101.003( 13) and 111.0022 define the reach of subtitles A and B of title 2 by reference to taxes and fees that the Comptroller is required or authorized to collect or administer under the Tax Code or other law. See id. $0 101.003( 13), 111.0022; see also Harris County v.Proler, 29 S.W.3d 646,649 (Tex. App.- Houston [14th Dist.] 2000, no pet.) (under section 101.003(13) “a tax is a fee that the comptroller is authorized to administer. The fee, and the administration ofthe fee, must go hand in hand in order for the fee to qualify as atax.“). In order for afee to constitute atax under these statutes, the Comptroller. must have a statutory duty to collect or administer it.
The Comptroller isrequired or authorized by statute to administer various fees collected by county and municipal courts and other local officials.4 Clearly, fees that are collected or

31n answering your questions, we address only the status of fees collected by counties and municipalities pursuant to unauthorized pretrial diversion agreements. In your first question, you refer to the fees as “local revenue fees.” See Request Letter, supra note 1,at 3. At other times, your letter refers to them as “unauthorized court costs, fees
or fines” or as “local revenue funds.” Your letter does not define these terms, and we do not use them. We have found only one statutory reference to the term “local revenue fund.” See TEX.TAXCODEAm. $ 111.064(a)-(c), (f) (Vernon 2001) (establishing the rate of interest for tax refunds, but providing that it does not apply to a “local revenue fund”). As used in that statute, the term “local revenue fund” includes “a court cost, a fee, a fine, or a similar charge collected by amunicipality, acounty, or acourt ofthis state and remitted to the comptroller.” Id. 0 111.064(f). The term appears torefer to court costs, fees, fmes, and charges that amunicipality, county, or court isrequired to collect and remit to the Comptroller pursuant to statute.

4See, e.g., TEX.CODECM. PROC.ANN. arts. 56.56 (Vernon Supp. 2003) (requiring officer collecting crime victims compensation fund costs in a municipal, justice, county, or district court case to deposit the funds in the municipal or county treasury and to send funds to the Comptroller), 56.57(a) (“The comptroller shall deposit the funds received under Article 56.56 and all other moneys credited tothe fund by any other provision oflaw in the compensation tovictims ofcrime fund.“) (emphasis added), 102.011 (I) (“The custodian ofamunicipal orcounty treasury who receives fees imposed under this article for services performed by peace officers employed by the state shallforward thefees to the comptroller ofpublic accounts by the last day ofthe month following each calendar quarter after deducting four-fifths of the amount of each fee received for a service performed under Subsection (a)( 1)or (a)(2) ofthis article, in amanner (continued.. .)The Honorable Carole Keeton Strayhom - Page 4 (GA-0061)

administered by the Comptroller pursuant to statute are taxes within the meaning of sections 101.003(13) and 111.0022. See Cornyn v. County ofHill, 10 S.W.3d 424,428 (Tex. App.-Waco 2000, no pet.) (court fees collected by county and overpaid to Comptroller pursuant to article 102.011 of the Code of Criminal Procedure were taxes subject to chapter 111 of the Tax Code because they were fees the Comptroller was “authorized to collect

. . .under other law” within the meaning ofsection 111.0022). On the other hand, sections 101.003( 13)and 111.0022 do not extend to fees that the Comptroller isnot authorized to collect or administer, such asfees that are collected and administered solely by local officials. See Proler, 29 S.W.3d at 649 (sheriffs fee set by commissioners court under section 118.13 1ofthe Local Government Code was not atax within the meaning of section 101.003( 13) of the Tax Code). Whether the Comptroller is required or authorized to collect or administer a particular fee requires an analysis of the specific statute governing the fee and the Comptroller’s duty with respect to the fee. See id. (holding that Comptroller’s duty to compile data about sheriffs fee set by commissioners court under section 118.13 1of the Local Government Code was not a duty to administer the fee and did not support finding that fee was atax under section 101.003( 13) ofthe Tax Code).
The request letter argues that “[blecause the Comptroller administers the various court costs, fees, and fines that the municipalities and counties impose,

. . .local revenue funds fall within the scope of Section 111.016.” Request Letter, supra note 1, at 2. But the letter does not identify a particular statute that authorizes the Comptroller to collect or administer the fees at issue, and we arenot aware ofone. Indeed, this query involves fees that counties and municipalities have collected pursuant to unauthorized pretrial diversion agreements - fees that arenot authorized by any statute. It is not sufficient for purposes of sections 101.003(13) and 111.0022 of the Tax Code that the Comptroller is authorized to collect or administer other fees assessed by courts and other local officials in connection with the adjudication of offenses.

For these reasons, the unauthorized pretrial diversion agreement fees at issue here are not taxes or fees for purposes of sections 101.003(13) and 111.0022 of the Tax Code. Given this conclusion, we do not reach your second question, which is premised on an affirmative answer to your first question. See id. at 3 (Question 2) (“If your answer [to the question about sections 101.003( 13)and 111.0022] is ‘yes,’ our second question isthis: Does Tax Code, Sec. 111.016 apply to these fees

. . . ?“).
With respect to the Tax Code, you also ask about unauthorized pretrial diversion agreement fees that the Comptroller’s office has already collected from counties and municipalities: “Should

“(.

.continued) directed by the comptroller.“) (emphasis added); TEX.LOC.GOV’TCODE ANN.58 118.0 15(b) (Vernon 1999) (“A county clerk who collects a fee under this section for a certified copy of abirth certificate shall deduct 20 cents of that fee to apply tothe clerk’s administrative costs and remit $1.80 ofthatfee to the comptrollerfor deposit in the work and family policies fund.“) (emphasis added), 118.018(c) (Vernon Supp. 2003) (requiring county clerk who collects a marriage license fee toremit part ofthe fee “tothe comptrollerfor deposit inthe family trust fund”) (emphasis added), 118.022(b) (Vernon Supp. 2003) (requiring county clerk to send part of each fee for amarriage license or declaration of informal marriage to the Comptroller who “shall deposit the money. ..tothe credit ofthe chid abuse and neglect prevention trust fund”) (emphasis added).The Honorable Carole Keeton Strayhom - Page 5 (GA-006 1)

we refund the amounts automatically to cities or counties or may we refund only if arefund claim is submitted pursuant to Section 111.104 of [the] Texas Tax Code?” Id. at 4 (Question 8). You explain that your office requires arefund claim because itbelieves that “subsection (e) of Section 111.104 applies to alltaxes and fees collected or administered by the comptroller.” Id. In addition, your office requires “the submission of evidence that the money has been refunded to the person from whom it was collected” pursuant to subsection (f). See id. You ask, “Shall we continue to require that proof?” Id.
Section 111.104 authorizes the Comptroller to refund “an amount oftax, penalty, orinterest [that] has been unlawfully or erroneously collected.” TEX.TAXCODEANN. 8 111.104(a) (Vernon 2001). Under section 111.104, a“tax refund claim may be filed with the comptroller by the person who paid the tax or by the person’s attorney, assignee, or other successor,” and the claim must be written and must include certain pertinent information. Id. 5 111.104(b)-(c). Subsection (f)provides that “[n]o taxes, penalties, or interest may be refunded to aperson who has collected the taxes from another person unless the person has refunded allthe taxes and interest tothe person from whom the taxes were collected.” Id. 6j111.104(f). Irnportantly, subsection (e)provides that section 111.104 “applies to alltaxes and license fees collected or administered by the comptroller, except the state property tax.” Id. 8 111.104(e) (emphasis added); see also Cornyn v. County ofHill, 10 S.W.3d at 428 (when read together with section 111.0022, “section 111.104 requirements for refunds apply to taxes or fees required to be collected by the comptroller”). As we have concluded, the monies atissue areneither taxes nor fees within the meaning of section 101.003( 13) or section 111.0022 because the Comptroller is not required or authorized to collect oradminister them. Itfollows from this conclusion that the monies
are not “taxes

. . . collected or administered by the comptroller” within the meaning of section 111.104(e). Because section 111.104 does not apply to the monies atissue, the Comptroller is not authorized to require counties and municipalities to apply forrefunds of such monies under section 111.104 or to comply with section 111.104(f).

You also ask whether the statute of limitations in section 111.201 of the Tax Code applies tounauthorized pretrial diversion agreement fees that the Comptroller’s office has already collected from counties and municipalities: “Currently, we apply the four-year statute of limitations to amounts collected from local revenue funds.

... Ifamounts aretobe refunded to municipalities and counties

. . .does the four-year statute of limitations apply to limit the time period of funds which must be refunded?” Request Letter, supra note 1,at 5(Question 9). Section 111.201 provides that

“[n]o tax imposed by this title may be assessed after four years from the date that the tax becomes due and payable.” TEX.TAXCODEANN. 8 111.201 (Vernon 2001). Section 111.107, which you do not cite in your letter, establishes time limitations for tax-overpayment refund requests. See id. 8 111.107. Because the fees atissue are not taxes for purposes ofchapter 111 of the Tax Code, the time limitations set out in chapter 111 of the Tax Code do not apply to them.The Honorable Carole Keeton Strayhom - Page 6 (GA-0061)

II. Chapters 72,74 and 76 ofthe Property Code

Your remaining questions pertain to how unclaimed fees should be handled under the Property Code. Before turning to your questions, we briefly review the statutory scheme. Under chapter 72 ofthe Property Code, acounty ormunicipality that possesses an unauthorized fee that is the property ofthe individual who paid the fee isthe “holder” ofthe property. See TEX.PROP.CODE ANN. 972.001(e) (Vemon Supp. 2003). Personal property ispresumed abandoned after three years. See id. $ 72.101(a) (Vernon 1995). Chapter 74 requires aholder of property assumed abandoned under chapter 72 to file areport ofthat property and to deliver itto the Comptroller within acertain time frame. See id. §$ 74.001, 74.101, 74.301 (Vernon Supp. 2003). The Comptroller is charged with safekeeping the property, providing notice to its owner, and reviewing ownership claims. Id. 88 74.20 l-.205, 74.304(a), 74.50 l-.509. Chapter 76 establishes special requirements for certain abandoned property held by counties, municipalities, and school districts and does not require that this property be reported or delivered to the Comptroller. See id. $4 76.001, 76.101, 76.301.
First, you ask when unauthorized fees should be presumed abandoned under section 72.10 1 ofthe Property Code, which establishes apresumption that property is abandoned after athree-year dormancy period. See Request Letter, supra note 1,at4. You ask, “When does the three years start to run? Is it from the date of offense, from the date the fee was collected, or from the date that a county ormunicipality determines that itisunable to locate the individual?” Id. (Question 3). You also ask, “Assume that a fee was imposed, and that the individual was allowed to make multiple payments. When does the three years start to run on multiple payments? That is, would each payment have a separate start date or would itbe based on the first payment or last payment?” Id. (Question 4).
Section 72.101 (a)ofthe Property Code does not establish when the dormancy period begins for unauthorized pretrial diversion agreement fees. Itmerely establishes the general parameters of the presumption. Under section 72.101 (a), personal property ispresumed abandoned if, for longer than three years: “(1) the existence and location of the owner of the property is unknown to the holder ofthe property; and (2) according to the knowledge and records ofthe holder ofthe property, a claim to the property has not been asserted or an act of ownership of the property has not been exercised.” TEX.PROP.CODEANN. 8 72.101 (a) (Vernon 1995); see also Melton v. State, 993 S.W.2d 95,98-99 (Tex. 1999) (knowledge ofthe owner’s name and last known address at the time the fee was paid does not preclude the application of section 72.101(a)); Tex. Dep ‘tofBanking v. Mount Olivet Cemetery Ass’n, 27 S.W.3d 276, 279 (Tex. App.-Austin 2000, pet. denied) (the principle underlying section 72.10 1(a)is “that ifan owner ofpersonal property does not perform an act of ownership within three years, the property ispresumed abandoned and should escheat to the State”) (citing Melton, 993 S.W.2d at 102).
There isno provision that establishes thebeginning ofthe dormancy period forproperty such
asunauthorized fees collected by acounty ormunicipality and there isno case law on the issue. By contrast, subsection (b)( 1) of section 72.101 establishes precise events that begin the dormancy period for ownership in stock. See TEX.PROP.CODEANN. 8 72.lOl(b)( 1) (Vernon 1995). And section 117.002 of the Local Government Code establishes the beginning of the dormancy periodThe Honorable Carole Keeton Strayhom - Page 7 (GA-0061)

for abandoned funds deposited in court registry funds and trust mnds under that chapter. See TEX. LOC.GOV’T CODE ANN. 8 117.002 (Vernon 1999); MeZton, 993 S.W.2d at 98 (section 117.002 of the Local Government Code “governs when the Property Code’s dormancy period begins to run for trust funds and court registry funds in the care of district and county clerks”).

We conclude that the dormancy period for these unauthorized fees begins on the date afee,
or partial payment of afee, is paid. In the absence of agoverning statute or relevant case law, we look to section 117.002 of the Local Government Code for guidance, because it establishes the beginning ofthe dormancy period for analogous property. Accord Tex. Att’y Gen. Op. No. JCO195 (2000) at 7 (using section 117.002 as guide for determining when dormancy period begins for unclaimed cash bail bond deposited with sheriff by adefendant against whom no case was actually filed). Under section 117.002, the dormancy period for funds deposited with courts under chapter 117 generally begins on the date of entry of final judgment or order of dismissal in the action in which the funds were deposited, i.e., as ofthe time the owner ofthe funds is entitled to them. See TEX.Lot. GOV’T CODE ANN. 8 117.002 (Vernon 1999) (“The dormancy period for funds deposited under this chapter begins on the later of: (1) the date ofentry offinaljudgment or order ofdismissal in the action in which the funds were deposited; (2) the 18th birthday of the minor for whom the funds were deposited; or (3) areasonable date established by rule by the comptroller to promote the public interest indisposing ofunclaimed funds.“). Here, individuals have paid fees to local officials pursuant topretrial diversion agreements in order to avoid prosecution. Because the officials lacked authority to collect the fees, the owners were entitled to the funds atthe time they paid them. This isthe date that the dormancy period under section 72.101 ofthe Property Code must commence for this property. See Tex. Att’y Gen. Op. No. JC-0195 (2000) at 8(dormancy period for anunclaimed cash bail bond posted by adefendant against whom no case was filed began asofthe date the district attorney’s office formally terminated the pending prosecution and the defendant was entitled to request return ofthe bond from sheriff); see also TEX.GOV’T CODE ANN.5311.021(3)-(4) (Vernon 1998) (“In enacting a statute, it ispresumed that

. . .ajust and reasonable result is intended [,and]
aresult feasible of execution is intended

. . . .“).

In answer to your specific questions, the dormancy period starts to run from the date the county or municipality collected the fee. If an individual was allowed to make multiple payments, the dormancy period for each payment starts to run on the date ofthe payment.
You also ask about chapter 76 ofthe Property Code, arelatively new provision that permits counties, municipalities and school districts to retain certain abandoned property? Under chapter 76, the holder of the property must report and deliver the property to the treasurer of the county, municipality, or school district, who must provide notice to the owner. See TEX.PROP. CODE ANN. $9 76.101,76.201-.204,76.301 (Vernon Supp. 2003); see also id. 876.002(l) (“areference to the treasurer of aholder includes aperson performing the duties ofthe treasurer of aholder in a school

‘Chapter 76 of the Property Code was enacted in 1997. See Act of June 1, 1997,75th Leg., R.S., ch. 1037, 0 38,1997 Tex. Gen. Laws 3875,3889.The Honorable Carole Keeton Strayhom - Page 8 (GA-0061)

district, municipality, or county inwhich the office oftreasurer does not exist”), (2) (“areference to the chief fiscal officer of aholder includes aperson performing the duties ofthe chief fiscal officer of aholder in aschool district, municipality, orcounty inwhich the office ofchief fiscal officer does not exist”).

You ask, “Ifthe fee and interest earned thereon is less than $100 per case, does chapter 76 of the Property Code apply, with the result that amunicipality or county would not be required to report the money to the Comptroller?” Request Letter, supra note 1,at4 (Question 5). According to the plain language of chapters 74 and 76 ofthe Property Code, afee and interest on afee valued at $100 or less and held by a county or municipality would be governed by chapter 76 rather than chapter 74. Chapter 74, which requires the holder of abandoned property to report and deliver the property to the Comptroller, expressly states that it “does not apply to aholder ofproperty subject to Chapter 76.” TEX. PROP. CODE ANN.574.001(b) (Vernon Supp. 2003). Chapter 76 applies to property presumed abandoned under chapter 72 ifthe holder is amunicipality or acounty and the property is “valued at $100 or less.” Id. 076.001. The requirements of chapter 74 do not apply to these funds! Attorney General Opinion JC-0463 (2002) didnot consider whether abandoned fees collected pursuant to unauthorized pretrial diversion agreements might be governed by chapter 76 of the Property Code. To the extent it suggests that abandoned fees must always be reported and delivered to the Comptroller pursuant to chapter 74, Attorney General Opinion JC-0463 (2002) is modified. Finally, with respect to monies that your office has already collected from counties and municipalities, you ask whether your office should transfer the amounts to the Comptroller’s unclaimed property program and, if so, whether the money should be handled under chapter 74 or 76 ofthe Property Code. See Request Letter, supra note 1,at4(Question 6). As we have discussed, chapter 74 governs abandoned fees valued atover $100, whereas chapter 76governs abandoned fees valued at $100 or less. The Comptroller administers abandoned property under chapter 74, but is not authorized to administer abandoned property subject to chapter 76. Chapter 76 provides for abandoned property to be administered at the local level and does not require that property within its scope be reported or delivered to the Comptroller. Because some ofthe monies at issue will be governed by chapter 76 rather than chapter 74, the monies may not be transferred to the Comptroller’s unclaimed property program. The counties and municipalities that collected the fees will have records regarding when the fees were collected and inwhat amount. Thus, we suggest that the monies be returned to the counties and municipalities to determine which are governed by chapter 76 and which are governed by chapter 74.

Inaddition, you indicate that monies already collected from counties and municipalities have been allocated to various funds and general revenue and ask, “ifthe available balance in any ofthe funds from which money must be transferred is less than the amount to be transferred, fi-omwhat

6The changes made in the law by the 1997 amendment to section 74.001 and enactment of chapter 76 apply

“only to unclaimed property held by aholder, as that term is used in Chapter 76

. ..on or after June 30, 1998.” See Act of June 1, 1997,75th Leg., R.S., ch. 1037, 041(a), 1997 Tex. Gen. Laws 3875, 3895.The Honorable Carole Keeton Strayhom - Page 9 (GA-006 1)

source must the transfer be made?” Id. (Question 7). Resolution of this question, which would require an inquiry into facts and an application of accounting principles, is beyond the purview of
an attorney general opinion. See Tex. Att’y Gen. Qp. Nos. GA-0003 (2002) at 1(“factual findings

. . . cannot be made in the opinion process”); JC-0427 (2001) at 2 (declining to answer questions about transfer of sick leave to and from a county sick leave pool to the extent they involve application of accounting principles and require the determination offact issues, “which this office is not qualified to undertake”).The Honorable Carole Keeton Strayhom - Page 10

SUMMARY

Fees collected by counties and municipalities pursuant to unauthorized pretrial diversion agreements arenot taxes governed by chapter 111 of the Tax Code. Counties and municipalities must administer abandoned fees and interest earned on the fees pursuant to chapters 74 and 76 ofthe Property Code. Attorney General Opinion JC-0463 (2002) is modified to the extent it suggests that abandoned fees must always be reported and delivered to the Comptroller pursuant to chapter 74 ofthe Property Code. Very truly yours,

eneral of Texas

BARRY R. MCBEE First Assistant Attorney General
DON R. WILLETT Deputy Attorney General for Legal Counsel

NANCY S. FULLER Chair, Opinion Committee Mary R. Crouter Assistant Attorney General, Opinion Committee