OFFICE OF THE ATTORNEY GENERP,L . STATE OF TEXAS JOHN CORNYN

June 24,2002

The Honorable Robert B. Scheske Gonzales County Attorney P. 0. Box 3 Gonzales, Texas 78629-0003 Opinion No. JC-05 16 Re: Applicability ofarticle 103.003 1ofthe Code 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 afine suggested by ajustice ofthe 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 GRIM.PROC.ANN.art. 103.0031(a) (Vernon Supp. 2002), that may be collected by aprivate vendor pursuant to article 103.003 1of the Code of Criminal Procedure. We conclude that, absent an order by the magistrate, a“suggested” fine is not within the terms of article 103.003 1. 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 103.003 l(a) provides: The commissioners court of acounty or the governing body of amunicipality may enter into acontract with aprivate attorney or apublic orprivate vendor for the provision ofcollection services for debts and accounts receivable such asfines, fees, restitution, and other debts orcosts, other than forfeited bonds, ordered tobepaid by a court serving the county or a court serving the municipality, as appropriate. Id. (emphasis added). Such contracts may authorize the addition ofcollection fees ofthirty percent on debts or accounts receivable that are more than sixty days past due. See art. 103.003 1(b) (Vernon supp. 2002). As you explain the situation which gives rise to your request, atraffic citation is issued and the defendant by signing the ticket makes apromise to appear before thejustice ofthe peace. The defendant fails to keep that promise, and thejustice ofthe peace issues an arrest warrant based onThe Honorable Robert B. Scheske - Page 2 (JC-0516)

the failure to appear. “Often in connection with this warrant, the court suggests a fine that would be acceptable to the Justice ofthe Peace upon the arrest ofthe violator. The acceptable fine can be paid to the magistrate when arrested.“’ As your second letter to us makes clear, you are not concerned with asituation inwhich afine has been ordered after ajudicial hearing, but rather “class C misdemeanor cases in which there has been no appearance in the case by the defendant and the amount ofthe fine is suggested asan acceptable fine by thejudge orjustice.“* 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 103.003 1are, according to the plain language ofthe statute, those which have been “ordered tobe paid by acourt.” TEX.CODE CRIM.PROC.ANN. art. 103.003 1(a). It has been suggested in a brief submitted to this office that, in line with the doctrine ofthe last antecedent, see, e.g., In reM.A.M., 35 S.W.3d 788,790 (Tex. App.-Beaumont 200 1,no pet.), the phrase “ordered to be paid by acourt” 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 isthat thephrase “such asfines, fees, restitutions, and other debts or costs” is a single illustrative series referring precisely to “debts and accounts receivable.” Further, subsection (d) ofarticle 103.003 1begins with the words, “Ifaprivate attorney orprivate vendor collects from aperson owing costs orderedpaid by the court an amount that isless than the total costs . . . .” TEX. CODE CRIM. PROC. ANN.art. 103.003 l(d) (Vernon Supp. 2002) (emphasis added). Reading the language ofsubsections (a)and (d)together, then, itis 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). Inthe situation you describe, however, there has been no such order. When, ashere, 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 bane) (in construing statute, court “necessarily focus[es] . . .attention on the literal text of the statute in question.“).

‘Letter from Honorable Robert B. Scheske, Gonzales County Attorney, to Susan Dent-non Gusky, Chair, Opinion Committee, Office of Attorney General, at 1(Dec. 27,200l) (on file with Opinion Committee).

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

3Brief from F. Duane Force, Linebarger, Goggan, Blair, Pena & Sampson, L.L.P., to Honorable John Comyn, Texas Attorney General, at 6 (Jan. 17,200[2]) (on file with Opinion Committee).The Honorable Robert B. Scheske - Page 3 (JC-0516)

SUMMARY Article 103.003 1 of the Code of Criminal Procedure is inapplicable in acase in which ajustice ofthe peace has informally suggested an acceptable fine.

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 Comrnittee