Re: When a surety is entitled to a refund under Government Code §41.258, which mandates an officer taking a bail bond to require the surety to pay a cost (RQ-0153-GA)

SUMMARY

Government Code §41.258(b) requires an officer taking a bail bond to collect a cost from the surety. The officer deposits the money in the county treasury and the county later sends most of the money to the comptroller, who must deposit it in the fair defense account, which may be used only by the Task Force on Indigent Defense to implement Government Code Chapter 71, Subchapter D, and the felony prosecutor supplement fund, which is used to pay longevity pay to prosecutors. Pursuant to §41.258(f), a bail bond surety is entitled to a refund of a cost paid under §41.258(b) as of the date the prosecutor decides not to institute a criminal proceeding against the defendant or the date a grand jury votes not to indict the defendant.

Given that most of §41.258 costs are ultimately deposited in the state treasury and that the comptroller has general authority over state and county accounting, the comptroller is the proper official to determine whether §41.258 refund applications should be processed at the state or county level and whether refunds should be paid by the state or the county. In the absence of direction from the comptroller, counties may accept refund applications and provide refunds.

If a county pays a refund, it is reasonable to construe §41.258 to require refunds to come from costs collected under §41.258(b) rather than other funds in the county treasury. However, it is for the comptroller to determine as an accounting matter whether counties should deduct refunds from amounts sent to the comptroller or whether the comptroller should reimburse counties for refunds. A bail bond surety who applies for a cost refund under §41.258(b) is not entitled to interest.

Opinion No. GA-0208

The Honorable Robert E. Talton

Chair, Urban Affairs Committee

Texas House of Representatives

Post Office Box 2910

Austin, Texas 78768-2910

Re: Whether the Texas Department of Housing and Community Affairs' 2004 plan for allocating low-income housing tax credits is consistent with Senate Bill 264 (RQ-0161-GA)

SUMMARY

The Department of Housing and Community Affairs must first score and rank applications for low-income housing tax credits according to the nine statutory criteria prioritized in descending order in Government Code §2306.6710(b)(1), as amended in 2003 by Senate Bill 264. It may score and rank applications according to other criteria and preferences established in 26 U.S.C. §42 and Chapter 2306 by giving those other criteria and preferences less weight than the §2306.6710(b)(1) criteria. To the extent the Department's 2004 qualified allocation plan for allocating low-income housing tax credits gives other criteria and preferences greater weight, it is inconsistent with §2306.6710(b)(1) and exceeds the Department's statutory authority.

The 2004 qualified allocation plan is not required to address private activity bond application scoring and ranking and therefore is not inconsistent with §2306.359, as added by Senate Bill 264. With respect to providing notice about proposed developments to neighborhood organizations in the same and adjacent zip codes and by posting signs and mailing notices to addresses in the immediate vicinity, the 2004 qualified allocation plan is not inconsistent with §2306.6705, as amended by Senate Bill 264.

Opinion No. GA-0209

The Honorable Frank Madla

Chair, Intergovernmental Relations Committee

Texas State Senate

Post Office Box 12068

Austin, Texas 78711-2068

Re: Whether local election officials had the discretion to accept or reject signatures on local option election petitions filed prior to the effective date of the 2003 amendments to the Alcoholic Beverage Code when the signatures were withdrawn by affidavit, or when the signatures appeared on the back side of a petition signature sheet from which certain statutory elements were absent (RQ-0159-GA)

SUMMARY

Prior to 2003 changes in the Alcoholic Beverage Code, Texas recognized the common-law right of signature withdrawal, and a timely filed affidavit of signature withdrawal from a local option election petition had the effect of erasing the petitioner's original signature. Local election officials, therefore, were required to disregard withdrawn signatures and could not count them. In addition, for local option election petitions governed by the pre-amendment Alcoholic Beverage Code, local election officials had to count signatures that appeared on pages that complied with pre-amendment Chapter 251 provisions, unless the signatures had to be rejected under pre-amendment §251.10(b).

Opinion No. GA-0210

The Honorable Richard J. Miller

Bell County Attorney

Post Office Box 1127

Belton, Texas 76513

Re: Whether under Article XVI, Section 65 of the Texas Constitution a justice of the peace announced his candidacy for another office on December 31 by informing a newspaper reporter that he would be a candidate for another office (RQ-0162-GA)

SUMMARY

A justice of the peace did not automatically resign under Article XVI, Section 65 of the Texas Constitution merely by informing a newspaper reporter on December 31 that he was running for another office. Assuming that the private conversation did not result in any publication of the information on December 31, a finder of fact could reasonably conclude that there was no announcement on December 31.

For further information, please access the web site at www.oag.state.tx.us or call the Opinion Committee at (512) 463-2110.

TRD-200404325

Nancy S. Fuller

Assistant Attorney General

Office of the Attorney General

Filed: June 30, 2004