ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
May 4, 2010
The Honorable Vince Ryan Opinion No. GA-0773
Harris County Attorney
10 19 Congress, 15th Floor Re: Whether a district clerk may accept assignment
Houston, Texas 77002 a
of defendant's cash bail bond refund as payment
of the defendant's fines and costs (RQ-0819-GA)
Dear Mr. Ryan:
You ask whether a district clerk may accept assignment of a defendant's cash bail bond
refund in payment of the defendant's fines and costs.' If so, you also ask when the clerk may accept
the assignment and list the following possibilities: (1) when the defendant deposits the cash bail
bond; (2) after the defendant's adjudication; or (3) after the court directs the refund to the defendant.
Request Letter at 1. Your questions focus on article 17.02 of the Code of Criminal Procedure, which
authorizes the use of cash bail bonds. TEx. CODE CRIM. PROC. ANN. art. 17.02 (Vernon 2005).
A bail bond is "a written undertaking binding an accused to appear before the appropriate
authorities to answer a criminal accusation." Melton v. State, 993 S.W.2d 95, 97 (Tex. 1999).
Article 17.02 allows a bail bond to be in the form of a surety bond or cash bond. TEx. CODE CRIM.
PROC. ANN. art. 17.02 (Vernon 2005); Melton, 993 S.W.2d at 97. In lieu of a surety bond, article
17.02 permits the defendant to execute a bond and deposit "current money of the United States" in
the amount of the bond into the court registry. TEx. CODE CRIM. PROC. ANN. art. 17.02 (Vernon
2005). Such a cash deposit by a defendant is known as a "cash bail bond." Melton, 993 S.W.2d at
97.
As you note, the right to receive payment for debt is generally assignable under the common
law. 2 See Cloughly v. NBC Bank-Seguin, N.A., 773 S.W.2d 652,655 (Tex. App.-San Antonio
1989, writ denied) (stating that generally, debts are assignable claims). Your question, however, is
not about what rights are assignable under the common law, but rather, you ask about a district
clerk's authority to accept an assignment of a cash bail bond refund to satisfy fines and costs.
Request Letter at 1. Article 17.02, in its provision for cash bail bonds, addresses the responsibilities
of a court's custodian of funds, such as a district clerk:
lSee Request Letter at 1 (available at http://www.texasattomeygeneral.gov).
2See Brief at 1 (attached to Request Letter).
The Honorable Vince Ryan - Page 2 (GA-0773)
[T]he defendant upon execution of such bail bond may deposit with
the custodian of funds of the court in which the prosecution is
pending current money ofthe United States in the amount of the bond
in lieu of having sureties signing the same. Any cash funds deposited
under this Article shall be receipted for by the officer receiving the
same and shall be refunded to the defendant if and when the
defendant complies with the conditions of his bond, and upon order
of the court.
TEX. CODE CRIM. PROC. ANN. art. 17.02 (Vernon 2005). Statutory construction begins with an
examination ofthe statute's language to determine legislative intent. Leland v. Brandal, 257 S. W.3d
204,206 (Tex. 2008). Article 17.02 requires the custodian offunds to (1) receive the cash bond, (2)
provide a receipt for the bond, and (3) once the defendant has complied with the bond's condition
and upon order of the court, refund the cash bond funds ''to the defendant." Id. The word "shall"
in the statute indicates that, where circumstances warrant, the custodian's duty to refund a cash bond
to a defendant is mandatory. See TEx. GOV'T CODE ANN. § 311.016(2) (Vernon 2005) (providing
that, unless context requires otherwise, the word "shall" in a statute "imposes a duty"); City ofAustin
v. S. W Bell Tel. Co., 92 S.W.3d 434,442 (Tex. 2002) (observing that courts generally construe the
word "shall" in statutes as mandatory).
Moreover, in construing article 17.02 we may consider its purpose. See TEx. Gov'T CODE
ANN. § 311.023(1) (Vernon 2005) (authorizing a court, in construing a statute, to consider the
"object sought to be attained"). The primary purpose of a bail bond, including a cash bond, is to
secure the trial of the accused, and "is not a revenue measure intended to be a substitution for a fine."
McConathy v. State, 528 S.W.2d 594, 596 (Tex. erim. App. 1975). Construing article 17.02 as
creating a mandatory duty to refund the cash bond funds according to the statute's terms is consistent
with the purpose ofthe statute, which is to guarantee the defendant's appearance rather than to secure
the payment of fines and costs. Accordingly, a court has construed article 17.02 as creating a
mandatory duty, once the defendant has complied with the bond's conditions, to order a refund of
the cash deposit without regard to the existence of unpaid fines or costs. De Leon v. Pennington, 759
S. W.2d 201,202 (Tex. App.-San Antonio 1988, no writ) (concluding that the court's duty to order
the refund is "ministerial"). Likewise, this office has construed article 17.02' s requirement to refund
as
the cash bond ''to the defendant" mandatory. Tex. Att'y Gen. Op. Nos. JC-0024 (1999) at 3-4
(determining that the statute requires that a cash bail bond be refunded to the defendant rather than
to a third party); JC-0163 (1999) at 1-2 (concluding that once a defendant has complied with the
conditions of his bond, the cash deposited as bail must be refunded to him and may not be withheld
to pay any fines or penalties except as expressly provided by statute). Neither article 17.02 nor any
other statute of which we are aware authorizes assignments as an exception to article 17.02's
requirement to refund cash bail bond funds to the defendant.
Consequently, we conclude that article 17.02 does not authorize a clerk to accept an
assignment made when the defendant makes the cash bond deposit. Nor does it authorize a clerk to
otherwise accept an assignment when it would be contrary to article 17.02's requirement to refund
the funds to the defendant upon compliance with the cash bail bond's terms and upon court order.
The Honorable Vince Ryan - Page 3 (GA-:0773)
Your fmal question is whether the clerk may accept an assignment once the court has ordered
the refund to the defendant. Once the cash bail bond funds have been refunded to the defendant
according to the court's order, article 17.02 does not preclude the clerk from accepting the funds to
pay fines and costs. We do not opine about the form of the transaction or transactions that may be
utilized to refund the deposit to the defendant and to effectuate a transfer of the funds to pay fines
and costs.
The Honorable Vince Ryan - Page 4 (GA-0773)
SUMMARY
Under article 17.02 of the Code of Criminal Procedure, a
district clerk may not accept an assignment of a defendant's cash bail
bond refund in payment of the defendant's fines and costs instead of
refunding the deposited funds to the defendant.
Very truly yours,
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee