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State Citation Description/Statute Name Question Brief answer Language from the opinion When does the case apply?
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Louisiana Op. Att'y Gen. No. 97-237 (June 18, 1997) Uniform eligibility criteria for indigency standards Does allowing different municipalities to set their own indigency standards or fines/fees violate the equal protection afforded by the state’s constitution? Unclear, but different municipalities are required by statute to have the same standards
(d) uniform eligibility criteria for determining  indigency and the eligibility of defendants to qualify for indigent defender representation at the district and state level;(citing language from statute creating the Louisiana
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Defense Board)
Ability to pay
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Louisiana Op. Att'y Gen. No. 95-449 (Nov. 8, 1995) Collection contracts with private vendors Which fines and/or fees may be collected by a private vendor? no stated limit
You have requested our opinion as to whether it is permissible for the Sheriff, with the formal approval of the District Court, to enter into such an agreement.  If so,
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you ask whether the public bid laws apply in procuring the services of a collection agency. We have reviewed the constitutional and statutory provisions relating to the powers and duties of sheriffs and can find nothing that would prohibit the Sheriff from entering into such an agreement. Our opinion is predicated upon the concurrence to the agreement of all parties enumerated hereinabove, and a formal order of the District Court Judge authorizing the contract and the percentage and/or fee to be retained by the collection agency. As discussed, this opinion is limited to only those fines that have been previously assessed, are currently delinquent and which you have been unable to collect. While a contract for the services of a collection agency are not required to be publicly bid by the Sheriff, we recommend that you solicit several proposals to ensure the confection of a contract that is most favorable to your office.
Revenue flow
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Louisiana Op. Att'y Gen. No. 83-183 (June 17, 1983) Court's authority to impose costs Other applicable opinions
It is well settled that the recovery and allowance of costs in criminal prosecutions is dependent entirely on statutory provisions. Absent statutory authority, a court has no power to award
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costs against a defendant on conviction. See C. J. S. Costs Section 435, 437. Op. Att'y Gen. No. 83-183 (June 17, 1983)
Fines and fees
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Delaware Del. Op. Atty. Gen. 97-IB04 (Del.A.G.), 1997 WL 111291 Town's authority to establish a mail-in center for collecting fines and fees for motor vehicle violations. Other applicable opinions
Under State law, for the Town to operate a voluntary assessment system, summonses issued by the Town police must be returnable to the Mayor's Court. Only the ?Courts of the
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Justices of the Peace may establish a mail-in fine center, ... in which case the summons may be made returnable to the applicable mail-in fine center.? 21 Del. C. Section 709(a) The statute does not authorize a municipality to establish a mail-in fine center for payment of fines for motor vehicle offenses which occur within the town. Nor can a town avail itself of the voluntary assessment procedure unless it has an Alderman's or Mayor's Court that is ?duly established.? 21 Del. C. Section 703(d). Stated differently, there must be an actual court, to which payments for motor vehicle offenses can be remitted ?to dispose of the charge without the necessity of personally appearing in the court to which the summons is returnable.? Id. Section 709(a). In conclusion, the Town of Elsmere is not an entity designated by statute to receive criminal history information from DELJIS. It may only operate a voluntary assessment system through a duly established Alderman's or Mayor's Court. In the absence of such a court, it may not charge, impose or collect ?court costs? or any similar fee from persons charged with motor vehicle violations within its boundaries.
Enforcement
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Delaware Del. Op. Atty. Gen. 93-I004 (Del.A.G.), 1993 WL 594345 Department of Correction's ability to assess a supervision fee on offenders and determine ability to pay Other applicable opinions
The Department, subject only to powers vested in the judicial and certain executive departments and officers of the State, shall have the duties set forth in this chapter and the
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exclusive jurisdiction over the care, charge, custody, control, management, administration and supervision of: (14) Collecting as a condition of supervision, a fee based on the Accountability Level of the offender. An offender sentenced to an Accountability Level I sanction shall be charged a $10 monthly fee; an offender sentenced to an Accountability Level II sanction shall be charged a $20 monthly fee; and an offender sentenced to an Accountability Level III sanction shall be charged a $25 monthly fee. The Director of Community Services shall develop policies and procedures with regard to determining an offender's ability to pay the monthly fee. Such policies and procedures shall be applied on a consistent basis to all offenders, and shall be subject to approval by the Commissioner of Correction. In the event the Department determines an offender is unable to pay the monthly fee due to lack of employment or other significant extenuating circumstances, such as an offender's responsibility to remit payment for victim compensation, restitution or child support, said inability shall not constitute a violation of supervision. The offender shall remain liable to pay the fee at such time as the Department determines he or she is able to do so. (Emphasis Supplied) For the reasons outlined below, we conclude that the Department is permitted to assess a supervision fee on offenders sentenced prior to the effective date of 11 Del.C. Sec. 6504(14).
Ability to pay
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Montana 49 Mont. Op. Att'y Gen. No. 18, 2002 WL 1009805 Montana-Attorney General opinion What authority do county or municipal courts have to set fines or fees?
The Montana Constitution and Montana law authorize amunicipal court judge to release a defendant on a time-pay bail bond, defined as a bond in an amount set by the judge to be
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paid in installments.
If the court finds some form of bail necessary, however, Mont. Code Ann. § 46-9-301, provides more specific factors for a court to consider. These factors include, among other matters
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not related to the safety of the victim and the community, that the amount shall be “not oppressive,” and that the amount shall be “considerate of the financial ability of the accused.” Id., §§ 46-9-301(4) and (6). The time-pay bail bonds system comports with these requirements.The Montana Constitution and Montana law authorize a municipal court judge to release a defendant on a time-pay bail bond, defined as a bond in an amount set by the judge to be paid in installments.
Ability to pay
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Montana 41 Mont. Op. Att'y Gen. No. 59 Montana-Attorney General opinion Other applicable opinions Cash bail for minor offenses may be increased to include applicable surcharges
In order to collect the additional $10 charge required by section 46-18-236, MCA, a court may exercise its power under section 46-9-302, MCA, and increase the bail schedule for minor
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offenses in a like amount.
Enforcement
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Tennessee Bradford v. Bradford, No. 86-262-II, 1986 WL 2874, at *5 (Tenn. Ct. App. Mar. 7, 1986); Daniels v. Grimac, 342 S.W.3d 511, 517 (Tenn. Ct. App. 2010) Case law
Are the same procedural protections that are required in criminal proceedings required in civil collection/contempt proceedings arising from criminal justice debt when those proceedings may result in incarceration? What if
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the proceedings may only result in additional fines or non-incarceration penalties?
Courts have recognzied that defendants are entitled to counsel, an opportunity to be heard, and notice in civil proceedings which may result in incarceration.
“We are of the opinion that in light of Lassiter, due process mandates that an indigent defendant has the right to be represented by counsel at a contempt proceeding whether
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it be called civil or criminal if the indigent defendant faces the loss of his freedom.” “Indirect contempt arises from acts committed out of the presence of the court, and cannot be punished unless the accused has been given the due process protections of notice and an opportunity to be heard.”
Enforcement
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Tennessee Cf. Tenn. Op. Att'y Gen. No. 89-03 (Jan. 12, 1989) Imprisonment for Contempt of Non-Payment of Fines Does allowing different municipalities to set their own indigency standards or fines/fees violate the equal protection afforded by the state’s constitution? Municipalities can set their own standards as long as the standards comply with constitutional and statutory protections
"The municipal charter provides that the city court may imprison a party for up to ten days for violation of city ordinances, and the city council has passed a resolution
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to this effect.It appears that the municipal provision outlined above complies with the procedures described in T.C.A. § 40–24–104, as well as constitutional safeguards, for determination of the defendant's ability to pay, thereby giving rise to an inference of willful disobedience and contempt of court where there has been a subsequent missed payment without notice of good cause to the court."
Ability to pay
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Tennessee See Tenn. Code Ann. § 40-24-105(d)(1) Collection; fines, costs and litigation taxes; license revocation Which fines and/or fees may be collected by a private vendor? Statutory law provides that all fines and fees may be collected by a private vendor when a defendant has been in default for more than six months.
"After a fine, costs, or litigation taxes have been in default for at least six (6) months, the district attorney general or criminal or general sessions court clerk may retain
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an agent to collect, or institute proceedings to collect, or establish an in-house collection procedure to collect, fines, costs and litigation taxes."
Enforcement
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Tennessee Tenn. Op. Att'y Gen. No. 89-104 (Aug. 17, 1989) (citing State ex rel. Wright v. Upchurch, 254 S.W.2d 748, 749 (Tenn. 1953)) Whether a Defendant Found in Willful Contempt of Court for Failure to Pay Child Support May Be Incarcerated Where He Lacks the Present Ability to Pay the Arrearage. Who has the burden of proof in an ability to pay determination? What is the standard of proof required? At least in civil contempt proceedings, the burden of proof is on the defendant.
"In any case, the inability to pay is an affirmative defense to a petition for civil contempt and the burden of proof is on the defendant to establish his inability
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to pay."
Ability to pay
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Tennessee Tenn. Code Ann. § 40-24-104; Tenn. Op. Att'y Gen. No. 89-03 (Jan. 12, 1989) Imprisonment for Contempt for Non–Payment of Fines Should ability to pay be considered when imposing fines or fees or only when collecting fines or fees? Statutory law provides that ability to pay must be considered when collecting fines, but at least some courts consider ability to pay when imposing fines and fees as well.
“If the defendant fails to pay the fine as directed, or is unable to pay the fine and so represents upon application to the court, the court, after inquiring into
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and making further investigation, if any, which it may deem necessary with regard to the defendant's financial and family situation and the reasons for nonpayment of the fine, including whether the nonpayment was contumacious or was due to indigency, may enter any order that it could have entered under § 40-24-101, or may reduce the fine to an amount that the defendant is able to pay, or may direct that the defendant be imprisoned until the fine, or any portion of it, remaining unpaid or remaining undischarged after a pro rata credit for any time that may already have been served in lieu of payments, is paid. The court shall determine and specify, in the light of defendant's situation and means and of defendant's conduct with regard to the nonpayment of the fine, the period of any imprisonment in default of payment of the fine within the limits of the penalties for a Class C misdemeanor.” “In the instant situation, the following circumstances form the factual basis resulting in the issuance of a capias for contempt of court: When a fine is imposed, a hearing is held at the same time to determine the defendant's ability to pay. If it appears that defendant cannot pay, the case is continued for several months to see if circumstances change during that time. If the court determines that defendant is able to pay or to make payments, a payment schedule is set up. Defendant is instructed at that time to notify the court if any emergency comes up and, if so, the court will consider defendant's excuse. If defendant thereafter misses a payment and has not notified the court, then a capias is issued for his arrest for contempt of court, since there has already been a finding that that defendant is able to pay.”
Ability to pay
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Tennessee Town of Nolensville v. King, 151 S.W.3d 427, 433 (Tenn. 2004); TN Const. Art. 6, § 14; case law What authority do county or municipal courts have to set fines or fees? The Tennessee constitution does not allow a county or municipal court to set a fine or fee greater than $50 without a trial by jury.
"Accordingly, for the reasons stated herein, we hold that Article VI, section 14 of the Tennessee Constitution prohibits a municipal court judge from imposing fines in excess of fifty dollars
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for a violation of a municipal ordinance, absent a valid waiver of the defendant's Article VI, section 14 right."
Fines and fees
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Tennessee Corum v. Holston Health & Rehab. Ctr., 104 S.W.3d 451, 454 (Tenn. 2003) case law What authority does the state supreme court have to impose binding state-wide rules on the imposition or collection of fees and fines? The state supreme court has the power to impose rules which govern the practice and procedure of the lower courts.
"[I]t is well settled that the Tennessee Supreme Court has the inherent power to promulgate rules governing the practice and procedure of the courts of this state. This inherent power
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“exists by virtue of the establishment of a Court and not by largess of the legislature"
Enforcement
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Tennessee State v. Smith, No. C.C.A. 86-121-III, 1986 WL 10893 (Tenn. Crim. App. Oct. 3, 1986) case law Under what circumstances does a conflict of interest in the imposition or enforcement of court debt violate state law? This has not been explicitly addressed by courts. However, in the right-to-counsel context, Tennesee generally recognizes that conflicts of interests should be avoided where they are likely to occur.
“Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect
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each defendant's right to counsel.”
Enforcement
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Washington Wash. Att'y Gen. Op. 1993 NO. 11 (1993) Ability to pay - considered at imposition and collection of fines and fees Should ability to pay be considered when imposing fines or fees or only when collecting fines or fees? They must be considered both when imposing and collecting fines and fees
[A] county considering an ordinance authorizing a court to impose a multiple booking fee as part of a criminal sentence should heed constitutional considerations relating to the offender's ability to
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pay the fee. Some statutes providing for the repayment of costs incurred on behalf of a criminal defendant, also known as recoupment statutes, have been challenged as unconstitutional. The courts generally have upheld these statutes, provided that they contain certain safeguards. As set forth in Fuller v. Oregon, 417 U.S. 40, 40 L.Ed.2d 642, 94 S.Ct. 2116 (1974), and summarized in State v. Earls, 51 Wn.App. 192, 195–96, 752 P.2d 402 (1988), the safeguards are:(1) The requirement of repayment must not be mandatory;(2) Repayment may be imposed only upon convicted defendants;(3) Repayment may only be ordered if the defendant is or will be able to pay;(4) The financial resources of the defendant must be taken into consideration;(5) A repayment obligation may not be imposed if it appears there is no likelihood the defendant's indigency will end;(6) The convicted person must be permitted to petition the court for remission of the payment of costs or any unpaid portion thereof;(7) The convicted person cannot be held in contempt for failure to repay if the default was not attributable to an intentional refusal to obey the court order or a failure to make a good faith effort to make repayment.
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Washington Wash. Att'y Gen. Op. 1993 NO. 11 (1993) Authority to set fines/fees What authority do county or municipal courts have to set fines or fees? Counties are given extensive freedoms to set fines and fees for municipal violations, but cannot do so in fields in which the state preempts
Counties have broad authority under article 11, section 11 of the state constitution to act in furtherance of their police power. That section provides: “Any county, city, town or township
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may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.” The State Supreme Court has described this provision as follows: This is a direct delegation of the police power as ample within its limits as that possessed by the legislature itself. It requires no legislative sanction for its exercise so long as the subject-matter is local, and the regulation reasonable and consistent with the general laws. Bellingham v. Schampera, 57 Wn.2d 106, 109, 356 P.2d 292 (1960); see also Brown v. Yakima, 116 Wn.2d 556, 559, 807 P.2d 353 (1991).Under this provision, counties may enact ordinances regarding “all those measures which bear a reasonable and substantial relation to promotion of the general welfare of the people.” State v. Seattle, 94 Wn.2d 162, 165, 615 P.2d 461 (1980). County ordinances prescribing local offenses and punishments for them would constitute police power measures of the county under article 11, section 11 of the Washington Constitution. Such county ordinances may not, however, “conflict” with state laws. The courts have interpreted this to mean that counties may not legislate in a particular area when the state has preempted the field, or when the county legislation and state legislation on the same subject cannot be harmonized. Brown, 116 Wn.2d at 559.
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Washington See answer for 8 above Washington-Attorney General opinion What authority does the state supreme court have to impose binding state-wide rules on the imposition or collection of fees and fines? See answer for 8 above See answer for 8 above
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Washington Not answered Washington-Attorney General opinion Under what circumstances does a conflict of interest in the imposition or enforcement of court debt violate state law? Not answered Not answered