Untitled Texas Attorney General Opinion

The Attorney General of Texas .Ql,ril 16. 1986 JIM MATTOX Attorney General Honorable Mike Dris~:oll Opinion No. JM-522 Supreme Court Building Harris County Attorxy P. 0. Box 12546 Austin. TX. 76711. 2546 1001 Preston, suite 634 Re: Whether a justice of the peace 512/475-2501 Htiuston.Texas 77~IO2 may accept personal checks in payment Telex 9101674-1387 'of fines, costs and/or judgments Telecopier 512,475.0266 Dear Mr. Driscoll: 714 Jackson, Suite 700 Dallas, TX. 752024506 You ask several questions about the responsibilities of a justice 214i742.8944 of the peace in comection with the collection of fines, costs, and judgments. 4624 Alberta Ave.. Suite 180 El Paso, TX. 799052793 A justice of the peace has authority to collect money payable 915/533-3464 under the Code of Criminal Procedure. Code Grim. Proc. art. 103.003. The code provides that all fines and other undertakings whereby a party becomes bound to pay the state "shall be collected in the lawful ,--I Texas. Suite 700 money of the United States only." Code Grim. Proc. srt. 43.02 ,Ston, TX. 77002.3111 (emphasis added). Your first question is whether those statutes 7131223-5666 authorize a justice of the peace to accept a personal check in payment of fines, costs, and judgments payable to the state. 808 Broadway, Suite 312 Lubbock, TX. 79401.3479 A check is not itself money. See Muldrow V. Texas Frozen Foods, 608/747-5236 299 S.W.2d 275, 27i-78 (Tex. 1957).- A check is generally considered to be only conditional payment of an obligation, and mere delivery of 4309 N. Tenth, Suite S a check does not discharge an obligation. Meaders V. Biskamp, 316 McAllen, TX. 76601-1685 S.W.2d 75, 77 (Tex. 1958); Muldrou, 299 S.W.2d at 277. A check that 5121682~4547 is honored by a payee bank, however, results in the receipt of money. See Muldrow, 299 S.W.2d at 278. Therefore, under article 43.02 a 200 Main Plaza. Suite 400 justice of the pe,%ce may accept a personal check as conditional San Antonio, TX. 76205.2797 payment of fines, costs or judgments even though the check itself is 512/225-4191 not money. An Equal Opportunity/ We note, howewr, that a public official is not bound to accept a Affirmative Action Employer check. Muldrow, 290 S.W.Zd at 278. Also, because delivery of a check does not discharge 3 debt, a defendant is not discharged from payment of fines and costs :ifhis check is returned unpaid. See Code Grim. Proc. art. 43.01 (defendant is discharged from costs and fines when they are fully paid:l.. Your second question is: May a justice of the peace discharge his lia- bility for the acceptance of-a worthless check in p. 2398 .Bonorable Mike Driscoll - Pa:ge2 (JM-522) payment for fines, costs end judgments and for the issuance of his official receipt by using due diligence to collect same? Justices of the peace are accountable for fines they impose and judgments they render, and lthey must use due diligence in collecting such fines and judgments: Fines imposed end judgments rendered by justices of the peace shall be charged against the justice imposing 1or rendering the same. He may discharge indebtc:dnessby filing with the county clerk the treasurer's receipt for the amount thereof, or by showing to the satisfaction of the commissioners court that he has used due diligence to collect the usme without avail, or that the same have been satisfied by imprisonment or labor. V.T.C.S. art. 1619. Your question seems to suggest that a justice of the peace incurs a liability other than his liability under article 1619 if he accepts a check that is not honored. This is not so. As far as his own accountability is concerned, a justice of the peace is in the same position after he accepts a worthless check from a defendant as he is when ha! has received nothing from the defendant. His liability stems from ilrticle 1619, not from his acceptance of a check. In order to discharge his liability under article 1619 a justice of the peace must issue "any and all writs allowed by law to enforce collection" of fines and judgments. - See Attorney General Opinions JM-517 (1986); O-6740 (1945). Your question also indicates concern about the effect of giving a defendant a receipt for a check that is later dishonored. A receipt merely signifies that the rlerty giving the receipt has received the article mentioned in the receipt. State v. Watkins, 87 S.W.2d 184, 188 (MO. 1935). It is nothing more than evidence that something was received, and it is subject to dispute by parol evidence. Humphries V. Colorado Life Co., 170 S.W.2d 315, 318 (Tex. Civ. App. - El Paso 1942. writ ref'd). Your question assumes that s justice of the peace becomes liable for payment of a check simply because he gives a receipt for the check. 'Zou offer and we find no basis for that assumption. Again, the l.iability of a justice of the peace for payment of a fine is the liability provided for in article 1619. Article 1619 does not make a justice of the peace a guarantor of a check he accepts. See Nuldrow, - --- 299 S.W.2d at 278 (when check for taxes is returned unpaid, secretary of state should cancel record of payment and take further st.epsto collect taxes). Of course, to avoid disputes over whether payment was in fact made, it would be wise for an official giving a receipt for a check to note on the receipt that it is for a check and that the check does not discharge an obligation unless it is paid in full. p. 2399 Honorable Mike Driscoll - Eage 3 (JM-522) Your final question is whether article 1656a. V.T.C.S., gives the Harris County Auditor authority to prohibit a justice of the peace from accepting personal checks. Article 1656a provides: The County Auditor in counties having a popula- tion of one hund;xninety thousand (190,000) or more according to the last preceding or any future Federal Census she,11prescribe the system of accoun- ting for the co;;;;%and the forms to be used by the District Clerk, tf,eDistrict Attorney and all county and precinct offjTc:ersend by all persons in the collection and disbursement of county revenues, funds, fees, and all other moneys collected in an official capacity%hether belonging to the county, its subdivisions cr precincts, or to, or for the use or benefit of, an:,person, firm, or corporation; he shell prescribe the mode and manner in which the District Clerk, the District Attorney and all county and precinct officers shall keep their accounts, end he shell have the power to require all officers to furnish monthly, annual, or other reports under oath of all moneys, tsxee. or fees of every nature received, disbursed, or remaining on hand; end in connection with such reports he shall have the right to count the cash on hand with such officer, or to verify the amount on deposit in the bank in which such officer may ‘have placed the same for safe- keeping. He sha:t:t have the power to adopt and enforce such reg&tions not inconsistent with the Constitution and Laws es he may deem essential to the speedy and pr'oper collection and checking of, and accounting for; the revenues and other funds and fees belonging to the county or to any person, firm, or corporation fa; whom any of said officers may have made collect:E,ns,or for whose use or benefit they may have rec#?zd or may hold such funds. All of the fees, commissions, funds, and moneys herein referred to shal:t be turned over to the County Treasurer by suck, officer as collected, and such money shall be deposited in the county depository in a special fund to the credit of such officer and draw interest for ,thebenefit of the county, which funds, when so deposited in such depository, shall be secured by the bond of such depository. There- after the officer, may draw checks on the County Treasurer to disburse said funds in the payment of salaries end expenses authorized by law or in payment to the county or to the persons, firms, or corporations to rhom said funds may belong. The Treasurer end the depository shall make no payment unless such check is countersigned by the County p. 2400 Honorable Mike Driscoll - Page 4 (JR-522) Auditor. The deposit of funds in the County Treasury shall not in any wise change the ownership of any fund so df:posited except to indemnify said officer and his bondsmen or other owners of such funds for such fun,ds during the period of deposit with the county. At the close of any fiscal year or accounting period amowor hereafter fixed by law, the County Auditor sh;Ll audit, adjust, and settle the accounts of such officer. In the event the County Auditor shall be unable to obtain proper reports or an adequate accounting from any District Attorney, District Clerk, county or precinct officer as herein provided, either during or after his term of office, the County Auditor shall have authority to enforce an accounting thereof, and to take such steps at the expense of the cornty as are necessary in his judg- ment to protect tre interests of the county or of the persons. firms, or corporations entitled to such funds. (Emphasis added). We conclude that the Narris County Auditor does not have the authority to prohibit justices of the peace from accepting checks. Article 1656a does not permit a county auditor to make rules contrary to law. and the Texas Supreme Court has held that a public official may accept a check as coniitional payment for an obligation that is statutorily required to be paid in money. Muldrow v. Texas Frozen Foods, 299 S.W.2d 275 (Tex. 1957). Also, we think that the duties and obligations of a county auditor under article 1656a concern record- keeping and handling of fur.ds. We do not think that a prohibition on the acceptance of checks is within that grant of authority. SUMMARY Under article 43.02 of the Code of Criminal Procedure, a justice of the peace may, but is not required to, accs:pta check in payment of fines, costs, and judgments. When a justice of the peace imposes a fine, he is liable for the amount of the fine. He may satisfy that liability by issuing any writs available to enforce the judgment. The Harris County Auditor may not prohibit county and precinct officers from accepting checks. JIM MATTOX Attorney General of Texas p. 2401 1 . c Honorable Mike Driscoll - Page 5 (3~~522) . P JACK HIGHTOWER First Assistant Attorney Gmeral MARY KELLER Executive Assistant Attorney General RICK GILPIN Chairman, Opinion Comittec! Prepared by Sarah Woelk Assistant Attorney General p. 2402