The Attorney General of Texas
August 1, 1979
MARK WHITE
Attorney General
Honorable Patrick J. Ridley Opinion No. MW-3 7
County Attorney
Bell County Courthouse Re: Liability of a justice of the
Belton, Texas 76513 peace who has accepted a
worthless check.
Dear Mr. Ridley:
You have requested an opinion regarding the liability of a justice of
the peace who accepts as payment of a fine a personal check which is later
determined to be wcrthless.
The justice is liable for all fines imposed in his court and may
discharge that responsibility by compliance with article 1619, V.T.C.S., which
provides:
Fines imposed and judgments rendered by justices
of the peace shall be charged against the justice
imposing or rendering the same. He may discharge
said indebtedness by 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
same without avail, or that the same have been
satisfied by imprisonment or labor.
See also V.T.C.S. arts. 1622, 1657; Code Crim. Proc. art. 1006. A check does
not represent final payment of the debt until it is honored by the bank, City
of El Paso v. Two Republics Life Ins. Co., 278 S.W. 231 (Tex. Civ. App. - El
Paso 1925, writ ref’d), and thus we believe the effect of a treasurer’s receipt
is conditional upon the check for which the receipt was issued being honored.
Attorney General Opinion V-312 (194’7);V.T.C.S. art. 1619.
If a check is not paid, however, the justice’s liability can be discharged
under article 1619 if he exercises due diligence to collect it. Issuance of a
capias pro fine under articles 45.51 and 45.52, Code of Criminal Procedure,
is one procedure which ordinarily will constitute due diligence.
P. 108
Honorable Patrick J. Ridley - Page TWO (m-37)
Cf. V.T.C.S. art. 7261a (liability of tax collector for personal checks is discharged if
he secuFks adequate identification of the maker). Where he has exercised due diligence to
collect the fine the justice is entitled to be credited or reimbursed for any money he hei
advanced to the treasurer.
SUMMARY
In order to discharge his liability for the amount, a justice of the
peace must exercise due diligence in collection on a worthless
check accepted as payment of a fine. Issuance of a capias pro fine
under articles 45.51 and 45.52, Code of Criminal Procedure, is one
procedure which adinarily will constitute due diligence.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by David B. Brooks
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
Tom Bullington
Charles Campbell
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood
P. 109