ATTORNEY GENERAL OF TEXAS GREG ABBOTT

August 17,2012
The Honorable Paul Johnson Denton County Criminal District Attorney Post Office Box 2850 Denton, Texas 76202 Dear Mr. Johnson: Opinion No. GA-0960 Re: Refund ofcashbail bonds under article 17.02, Code ofCriminal Procedure (RQ-I045-GA)

You pose several questions about the refund ofcash bail bonds and the possible conflict between article 17.02 of the Code of Criminal Procedure and section 117.055 of the Local Government Code. 1 Bail is "the security given by the accused that he will appear and answer before the proper court the accusation brought against him." TEX. CODE CRIM. PROC. ANN. art. 17.01 (West 2005). Under the Code ofCriminal Procedure, bail can take at least two forms, a bail bond or a personal2 bond. 

### See id; see also In re Tharp, 351 S.W.3d 598, 600 (Tex. App.-Austin 2011, no pet.) (characterizing the two types ofbonds). A bail bond can be satisfied through either a third-party surety guaranteeing the appearance ofthe defendant or by the defendant's depositing a set amount ofcash with the court. 

### See TEX. CODE CRIM. PROC. ANN. art. 17.02 (West Supp. 2011); 

### see also Prof'lBondsmen a/Tex. v. 

### Carey, 762 S.W.2d 691,693 (Tex. App.-Amarillo 1988, no writ) ("[I]t is clearthat a bail bond canbe satisfiedby posting either a suretybondora cashbond inthe amount setby the court."). Such a cash depositby a defendant is a cash bail bond. 

### See Melton v. 

### State, 993 S.W.2d 95, 97 (Tex. 1999). Article 17.02provides for the refund ofacashbail bond. 

### See TEX. CODECRIM. PROC. ANN. art. 17.02 (West Supp. 2011). Priorto a 2011 amendment, article 17.02 providedthatthe refund of a cash bail bond could be made onlyto the defendant. 

### See Act ofMay 27, 1965, 59thLeg. , R.S. ,ch. 722, 1965 Tex. Gen. Laws 317, 374 ("Any cash funds deposited
... shall be refunded to the defendant
...."); 

### see also Tex. Att'y Gen. Op. Nos. GA

-0773 (2010) at 2 (noting article 17.02's

iLetter from the Office ofDenton Cnty. Criminal Dist. Att'y, Honorable Paul Johnson, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Mar. 8, 2012), http:/ /www.texasattomeygeneral.gov/opin ("Request Letter"). 2 A personal bond is a bond with no sureties or other security
. See TEX. CODE CRIM. PROC
. ANN. arts. 17
.03 (West Supp. 2011) (providing for personal bonds), 17.04 (West 2005) (providing the requisites ofa personal bond)
.The Honorable Paul Johnson

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mandatorydutytorefundthecashbondto the defendant),JC-0024 (1999) at 2 (recognizingthatcash bail bond refund belongs to the defendant). With the amendment, article 17.02 now provides that [a]ny cash funds depositedunderthis article shall be receipted for by the officerreceivingthe funds and, on orderofthecourt, berefunded, after the defendant complies with the conditions ofthe defendant's bond, to: (1) any person in the name of whom a receipt was issued, in the amount reflected on the face of the receipt, including the defendant ifa receipt was issued to the defendant; or (2) the defendant, if no other person is able to produce a receipt for the funds. TEX. CODE CRIM. PROC. ANN. art. 17.02 (West Supp. 2011). Theotherprovision about which you ask is section 117.055 oftheLocal GovernmentCode. Itpertains to the administration ofcounty expenses and provides that [t]o compensate the county for the accounting and administrative expenses incurredin handlingtheregistryfunds 3that have not earned interest, including funds in a special or separate account, the clerk shall, at the time of withdrawal, deduct from the amount of the withdrawal a fee in an amountequal to five percentofthe withdrawal but that may not exceed $50. TEX. Loc. GOV'T CODE ANN. § 117.055 (West 2008) (footnote added). You seek clarification on the following questions relating to the two provisions: (1) If a court orders a cash bond refund, are the requirements of article 17.02(1) met ifaclerkwithdraws from theregistry the amount reflected on the face ofthe receipt, deducts the handling fee provided for in [section] 117.055, and refunds the balance to the person in whose name the receipt was issued?

)"Registry funds" subject to chapter 117 are "funds tendered to the clerk for deposit into the registry ofthe court." TEX. Loc. GOV'T CODE ANN. § 117.001(3) (West 2008). These funds include funds deposited as a cash bail bond. See id. § 117.052(c)(6);Tex
.Att'y Gen. Op. Nos. DM-282 (1994) at2 (concludingthatcash bailbonds fall within the scope ofchapter 117); IM-1162 (1990) at 2 (same)
. You do not tell us whether the cash bail bonds are deposited in non-interest bearing accounts. Because you ask specifically about section 117.055, we assume for purposes ofthis opinion that they are.The Honorable Paul Johnson

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(2) Mayacourt include in its refund order instructions to deductthe handling fee provided for in [section] 117.055? Is this necessary before a clerk may deduct the fee from the amount refunded to a person described in [article] 17.02(1) (a person in whose name a receipt was issued)? (3) Does [article] 17.02(2) presume that a receipt was issued in the name of someone other than the defendant? (4) Does [article] 17
.02(1) require the person named in the receipt (defendant orother named person) to produce his own receipt before the refund will be issued? Or, may the clerk issue a refund to the person named in the (state's copy of the) receipt? If so, what identification, if any, must the clerk require of the named person before issuing the refund? (5) How may the clerk determine when a person is "unable to produce a receipt." For example, is the person entitled to notice of the refund order and an opportunity to claim his refund within a certain time? Request Letter at 3. Because under former article 17.02 all cash deposited as a bail bond was to be refunded to the defendant, and under section 117.055 an administrative fee was to be withheld from a cash bail refund, this office previously determined that the two provisions irreconcilably conflicted and that section 117.055, as thelater-enacted statute, prevailed. See Tex. Att'yGen. Op. No. JC-0163 (1999) at 3. We subsequently reaffirmed that conclusion. See Tex. Att'y Gen. Op. No. GA-0436 (2006) at 2, 4 (concluding that because article 17.02 had not been amended subsequent to the issuance of Opinion JC-0163, section 117.055 remained the later-enacted statute and still prevailed). Because the Legislature amended article 17.02 in 2011, we must reconsider those opinions. The new language in subarticle 17.02(1) requires the cash bail bond refund to be "in the amount reflected on ... the receipt." TEX. CODE CRIM. PROC. ANN. art. 17.02(1) (West Supp. 2011). By referring to the receipt, which is issued with respect to "any cash funds depositedunderthis article," subarticle 17.02( 1) re-enactsthe statutoryrequirementthatthefull amountpaid as the cashbailbond must be returned. See id. (emphasis added). Cj McConathy 

### v. State, 528 S.W.2d 594,596 (Tex. Crim. App. 1975) (recognizing that the primary purpose ofa bail bond, including a cash bail bond, is to secure the trial ofthe accused, and "is not a revenue measure intended to be a substitution for a fine"). Accordingly, article 17.02 as amended continues to conflict irreconcilably with section 117.055, which requires the deduction of a fee. Because the 2011 amendment is the most recent legislative enactment, subarticles (1) and (2) are now the later-enacted provisions and therefore prevail over section 117.055 with respect to cash bail bond refunds. See TEX. GOV'T CODE ANN.The Honorable Paul Johnson

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§ 311.025(a) (West 2005); see also Clark v. Young, 787 S.W.2d 166, 168-69 (Tex. App.-Fort Worth 1990, writ denied) (stating that "we assume section 311.025 rests upon the presumption that when enacting new law that is in conflict with older law, it is presumed that the legislature intends to amend the older law"). This conclusion requires that your first two questions be answered in the negative because the amended statute prohibits the county from deducting the fee. Although Attorney General OpinionsJC-O 163 and GA-0436 correctlyinterpretedthe law as itexisted atthetimetheywereeach issued, their conclusion that a county may deduct the fee was superseded by the 2011 amendment to article 17.02. Your remaining questions are not purely legal questions but instead raise practical and logistical considerations that must be addressed by the county clerk in the first instance. Accordingly, they are inappropriate for the opinion process and we do not address them. See Tex. Att'yGen. Op. No. GA-0876 (2011) at 1(stating that "therole oftheopinion committeeis to advise authorized requesters about purely legal questions").The Honorable Paul Johnson

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SUMMARY Dueto therecentlegislative amendmentto article 17.02ofthe Code ofCriminal Procedure, a county is no longer entitled to deduct a fee for accounting and administrative expense from the refund ofa cash bail bond. Attorney General Opinions JC-0163 and GA-0436 are superseded due to legislative enactment.

DANIELT. HODGE First Assistant Attorney General JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel JASON BOATRIGHT Chair, Opinion Committee Charlotte M. Harper Very truly yours,

Assistant Attorney General, Opinion Committee