.~
                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT


                                                  June 8.2006



The Honorable Bruce Isaacks                             Opinion No. GA-0436
Denton County Criminal District Attorney
Post Office Box 2850                                    Re: Whether a county or district clerk is required
Denton, Texas 76202                                     to charge an administrative fee for the return of
                                                        funds deposited with the clerk as a cash bail
                                                        bond; reconsideration of Attorney General Opinion
                                                        JC-0163 (1999) (RQ-0425-GA)

Dear Mr. Isaacks:

         You ask whether a county or district clerk is required to charge an administrative fee for the
return of funds deposited with the clerk as a cash bail bond.’ Your inquiry is a request that we
reconsider an opinion of this office issued in 1999. See Request Letter, supra note 1, at 1-3. We
will first address that opinion in detail.

         In Attorney General Opinion JC-0163 (1999), this office was asked whether a county or
district clerk was authorized to withhold an administrative fee from the return of funds deposited
with the clerk as a cash bail bond pursuant to article 17.02 of the Code of Criminal Procedure. See
Tex. Att’y Gen. Op.No. E-0163 (1999) at 1. Article 17.02permits adefendanttodepositcashwith
the court as a bail bond. See TEX. CODE GRIM. PROC. ANN. art. 17.02 (Vernon 2005). That statute
also provides that any such 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 defend& complies
with the conditions of his bond, and upon order of the court.” Id. Thus, Attorney General Opinion
JC-0163 concluded that article 17.02, when read alone, requires “all funds deposited as a cash bail
bond [to] be refunded to the defendant once he complies.with the conditions of his bond.” Tex.
Att’y Gen. Op. No. JC-0163 (1999) at 2.

        The opinion also noted, however, that cash bail bonds deposited in non-interest bearing
accounts’ implicate the administrative fee requirement of section 117.055 of the Local Government



         ‘See Letter from Honorable Bruce Isaacks, Denton County Criminal District Attorney, to Honorable Greg
Abbott, Attorney General of Texas, at 1-3 (Dec. 15, 2005) (on tile with the Opinion Committee, also available at
http://www.oag.state.tx.us)[hereinafterRequest Letter].

         ‘Becausesection 117.055ofthe Local GovernmentCode is limited to non-interestbearing accountsthat may
include cash bail bonds, we do not here address interest bearing accounts. The latter are described in section 117.054
ofthe Local GovernmentCode. See TEX.LOC.Gov’TCODEANN.              3 117.054(Vernon 1999);Tex. Att’y Gen. Op. No.
X-0163 (1999) at 2 (discussingsection 117.054).
The Honorable Bruce Isaacks - Page 2                 (GA-0436)




Code. See id. at l-4. Section 117.055 of the Local Government Code requires at the time of
withdrawal “a county or district clerk to withhold, from certain ‘registry funds’ deposited with the
clerks a fee of five percent, or as much as $50.00, for accounting and administrative expenses
incurred in handling the funds.” Id. at 2; see TEX. Lot. GOV’T CODE ANN. § 117.055(a) (Vernon
Supp. 2005). These “registry funds” include “funds deposited into the registry fund from the
following sources:    . . (6) cash bail bonds.” See TEx. Lot. GOV’T CODE ANN. 5 117,052(c)(6)
(Vernon Supp. 2005).

         Thus, Attorney General Opinion JC-0163 found that section 117.055, which requires an
administrative fee to be withheld from a cash bail bond refund, was in irreconcilable conflict with
article 17.02 of the Code of Criminal Procedure, which requires all cash deposited as a bail bond to
be refunded to the defendant, See Tex. Att’y Gen. Op. No. JC-0163 (1999) at 3. The opinion also
found that neither section 117.055 nor article 17.02 was the more specific statute “with respect to
the treatment of cash bail bond deposits,” and as aresult, the statute latest in date of enactment must
prevail. Id. The opinion declared that because article 17.02 of the Code of Criminal Procedure had
been enacted in 1965 and not since amended, and section 117.055 of the Local Government Code
had been last amended in 1997, the latter as the later-enacted statute prevailed. See id. Accordingly,
the opinion concluded that a county or district clerk must, pursuant to section 117.055 of the Local
Government Code, withhold an administrative fee from the return of funds deposited as a cash bail
bond pursuant to article 17.02 of the Code of Criminal Procedure. See id. at 4.

        You suggest that Attorney General Opinion JC-0 163 is incorrect because it failed to consider
the opinion of the Texas Supreme Court in Melton V.State, which was issued eight months prior to
Opinion JC-0163. See Melton v. State, 993 S.W.2d 95 (Tex. 1999). Melton applied “provisions of
the Local Government Code, the Property Code, and the Code of Criminal Procedure to delineate
the duties of county officials regarding unclaimed cash bail bonds.” Melton, 993 S.W.2d at 97.3

         For our purposes, the most significant issue the court confronted in Melton was a discrepancy
between article 17.02 ofthe Code of Criminal Procedure and section 74.101(a) ofthe Property Code,
which required a holder of abandoned property as of June 30 of any year, including a county or
district clerk, to file a report of the property on or before the following November 1. See id. at 101;


         3Theprimary issueinMelton concernedthe date at which the dormancyperiod begins to run forunclaimed cash
bail bonds. SeeMelron, 993 S.W.2d at 99. Section 117.002ofthe Local GovernmentCode declares that

                 [a]nyfunds deposited under this chapter, exceptcash bail bonds, that a-e presumed
                 abandoned under Chapter 72, 73, or 75, Prop&y Code, shall be reported and
                 delivered by the county or district clerk. without further action by any court. The
                 dormancy period for funds deposited under this chapter begins on [one of the
                 alternative dates described].

TEX.Lot. GOV’T CODEANN.5 117.002(Vernon 1999)(emphasisadded) (footnote omitted). In Melton, a county clerk
had argued that the exemption for cash bail bonds applied to both of the above-quotedsentences. See Melton, 993
S.W.2d at 99. The state, by contrast, contended that the provision exempted cash bail bonds only from the automatic
reporting and delivery requirement and did nof exempt such funds from the sentence regarding the beginning of the
dormancy period. See id. The court adopted the state’s position on this issue. See id.
The Honorable Bruce Isaacks - Page 3          (GA-0436)




TEx. PROP. CODE ANN. $ 74.101(a) (Vernon Supp. 2005). Moreover, section 74.301(a) of the
Property Code required a holder to deliver abandoned property to the Comptroller along with the
report required by section 74.101(a). See Melton, 993 S.W.2d at 101; TEX. PROP. CODE ANN.
$4 74.101(a), .301(a) (Vernon Supp. 2005). By contrast, article 17.02 of the Code of Criminal
Procedure declares that cash bail bonds shall be released only “upon order of the court.” TEX. CODE
GRIM. PROC. ANN. art. 17.02 (Vernon 2005); see also Melton, 993 S.W.2d at 101. Thus, Melton
concluded that article 17.02 of the Code of Criminal Procedure, which “speaks specifically to the
release of cash bail bonds     controls over the more general Property Code provisions regarding
delivery of abandoned property.” Melton, 993 S.W.2d at 102.

        You contend that the Texas Supreme Court’s analysis in Melton of the conflict between
article 17.02 of the Code of Criminal Procedure and the relevant Property Code provisions should
have been applied to the conflict between article 17 .O2 and section 117.055 ofthe Local Government
Code as described in Attorney General Opinion JC-0163. See Request Letter, supra note 1, at 2.
Using that analysis, you suggest that because article 17.02 speaks specifically to the refund of cash
bail bonds, whereas section 117.055 addresses generally the clerk’s withholding of a fee to
compensate the county for the accounting and administrative expenses incurred in handling registry
funds, article 17.02 is the more specific statute. See id. Under such reading, article 17.02’s
requirement that the entire~amount of a cashbail bond be refunded to a defendant would prevail over
the clerk’s authority to withhold an administrative fee under section 117.055. See id.

        This argument, however, is misplaced. The Property Code provisions addressed in Melton
were part of chapter 74, which dealt with the “Report, Delivery, and Claims Process” of property that
is presumed abandoned. See TEX. PROP. CODE ANN. §§ 74.001-,710 (Vernon 1995 & Supp. 2005).
Section 74.001(a) thereof states that “[elxcept as provided by subsection (b), this chapter applies to
a holder of property that is presumed abandoned under Chapter 72, Chapter 73, or Chapter 75.”
Id. § 74.001(a) (Vernon Supp. 2005). Nowhere in chapter 74 of the Property Code, or more
generally, in title 6, which deals with unclaimed property, is there a reference to cash bail bonds.
See id. $5 71 .OOl-76.704 (Vernon 1995 & Supp. 2005) (title 6, Property Code, chapters 71 through
76).

         By contrast, section 117.055 of the Local Government Code is apart of chapter 117, entitled
“Depositories for Certain Trust Funds and Court Registry Funds,” and more specifically part of
subchapter C thereof, relating to “Depository Accounts.” TEX. Lot. GOV’TCODE ANN. $5 117.052-
,058 (Vernon 1999 & Supp. 2005). As we have indicated, section 117.052(c) provides that a “clerk
is responsible for funds deposited into the registry fund from the following sources:  . (6) cash bail
bonds.” Id. § 117.052(c)(6) (Vernon Supp. 2005). Melton did not allude to any conflict between
article 17.02 of the Code of Criminal Procedure and chapter 117 of the Local Government Code.
Indeed, the Texas Supreme Court there noted that

                [slection 117.052(c) ofthe Local Government Code provides that the
                clerk is “responsible” for registry funds, which includes cash bail
                bonds. Section 117.0521 states that a clerk acts in a “custodial
                capacity” in relation to registry funds. Finally, section 117.052(a)
The Honorable Bruce Isaacks - Page 4                (GA-0436)




                 requires the clerk to place money deposited into the court registry in
                 the county’s depository if the clerk is to have “legal custody” of the
                 money for more than three days.

Melton, 993 S.W.2d at 101 (citations omitted).

         Thus, the court’s discussion in Melton does not provide any basis for analogizing the conflict
between article 17.02 of the Code of Criminal Procedure and the relevant Property Code provisions
to the conflict between article 17.02 and section 117.055 of the Local Government Code described
in Opinion JC-0 163. In our view, it is apparent that the deduction of the administrative fee required
by section 117.055 necessarily provides for that deduction from registry funds deposited as cash bail
bonds. Consequently, we agree with the conclusion of Attorney General Opinion JC-0163. Both
article 17.02 of the Code of Criminal Procedure and section 117.055 of the Local Government Code
are specific statutes that deal with the refund of cash bail bonds. The only difference between the
two provisions is that section 117.055 requires the deduction of an administrative fee from the
refund. This requirement of a deduction means that the two statutes are in irreconcilable conflict
with each other. Neither is the more specific statute. Accordingly, we cannot rely on the rule of
construction that declares that when two statutes are in conflict, the more specific statute prevails
over the more general statute. See Stute v. MeKinney, 803 S.W.2d 374,376 (Tex. App.-Houston
 [ 14th Dist.] 1990, no writ). The Code Construction Act provides that “if statutes enacted at the same
or different sessions of the legislature are irreconcilable, the statute latest in date of enactment
prevails.” TEX. GOV’T CODE ANN. 5 311.025(a) (Vernon 2005).

         In Attorney General Opinion JC-0163, section 117.055 was found to be the later-enacted
statute.4 See Tex. Att’y Gen. Op. No. JC-0163 (1999) at 3. We note that article 17.02 has not been
amended subsequent to the issuance of Attorney General Opinion K-0163 (1999). See TEX. CODE
CRJM. PROC. ANN. art. 17.02 (Vernon 2005). Consequently, section 117.055 remains the later-
enacted statute. As a result, we conclude that a county or district clerk, pursuant to section 117.055
of the Local Government Code, is required to charge an administrative fee for the return of funds
deposited with the clerk as a cash bail bond.




         ‘You also suggest that Attorney GeneralOpinion X-0163 “failsto address the issue that the substantivebond
forfeiture law is criminal in nature” and cite for this proposition the Texas Supreme Court’s opinion in Camacho v.
Samaniego, 831 S.W.2d 804 (Tex. 1992). Request Letter, supra note 1, at 2. That opinion considered the right of a
county to impose a bond approvalfee. See Carnacho, 831 S.W.2d at 805. The opinion declared that “[clhapter 118 of
tbe Local Government Code does not authorizethe commissionerscourt to set fees in criminal matters”;therefore,
“the criminal bail bond fee in El Paso is not authorizedby statute and is thus impermissible.”Id. at 812. By contrast,
Local GovernmentCode chapter 117,subchapterC, as we have indicated,specificallyincludes“cashbail bonds”within
the category of “regishy funds”from which an administrativefee may be deducted. See TEX.Lot. GOV’TCODEANN.
$5 117.052(c)(6),.055(a) (Vernon Supp. 2005). Moreover, the Texas Supreme Court’s opinion in MeNonexpressly
notes that cash bail bonds are included within those registry funds to which chapter 117 applies. M&n, 993 S.W.2d
at 101.
The Honorable Bruce Isaacks - Page 5          (GA-0436)




                                       SUMMARY

                       A county or district clerk, pursuant to section 117.055 of the
               Local Government Code, is required to charge an administrative fee
               for the return of funds deposited with the clerk as a cash bail bond.
               Attorney General Opinion K-0 163 (1999) is affirmed.




BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee