The AG issued GA-0387 on December 28th, stating that Government Code Section 51.961(g), providing that 1/2 of a fee collected on divorce petitions be deposited into the child abuse and neglect prevention trust fund account, was unconstitutional. By my read, that is 1/2 of a $30 fee, or a $15 fee.

We've been getting some questions about what counties are doing at this point...collecting $30 and not sending 1/2 to the Comptroller, or just collecting $15 and keeping it.

Anyone have any experience with this deal?

thanks, rob

From what we can tell you must have a contract with a service provider. See section 51.961(d) of the Government Code. So it is not like the county gets to keep the money. So the county half is not general fund, not a revenue stream for the county. I suspect, based on a similar forum stream from last week that folks need to check to see where the county portion was destined to go. If there is no vendor, collecting the money at all seems questionable. If you have a vendor, then you need to make sure the vendor is performing services in compliance with GA-0231 which requires the services to be court related. I am sure there are vendors working up plans but I don't know whether this will be the year for such a contract.

First, I have advised our district clerk to put this back on the agenda and get the commissioners to repeal the fee they enacted last month under this section. Then there is no question about what to do. Although, I did originally advise to collect the county's half.

Second, Ray, when you say a contract with a provider, do you mean that the county needs a written contract to disburse those funds, or is a vote of the commissioners court to designate certain providers as beneficiaries of this type of fee sufficient?

My concern about a lack of a contract is how you explain that the services provided by the vendor are court related as required by GA-0321. If the vendor has a contract with you to provide court related services then when the lawsuit over the fee collection begins you have a ready made witness who testifies to your laudatory court related purpose or admits to the breach of contract. Also, since this is public money you must retain sufficient control over its use to satisfy a public purpose.

I am concerned by the language in subsection (d) of 51.961 of the Government Code that requires that one half of the fee collected be used for this purpose. GA-0387 or GA_)#*& leaves in unconstitutional limbo the other half of the fee. I wonder whether the Comptroller would someday ask us: Where's that half? O you spent it without a statute authorizing such expenditure. Because the Legislature did not assume that the amendment of the statute would be declared unconstitutional the amendment to subsection (d) creates this problem. Our county is still evaluating our course of action.

I have advised my commissioners to change the fee from $30 back to $15, and then to keep it. If it is later determined that the $30 fee is legitimate, since the commissioners may charge up to $30, they will only owe the State half of the $15 collected.

we don't have a contract yet. And - since the District Clerk (acting on her own without me) had them set it at $1 (don't ask where she got that one!) - I recommended that my Court simply repeal the fee while we do more research....

Has anyone developed a set of criteria for determining whether an organization's requested use of funds would be a court-related purpose for support of the judiciary? If anyone has and wouldn't mind sharing it, please email me at malm@co.midland.tx.us or call me at 432-688-4490. Thanks.

Russell Malm
Midland County Attorney