OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

GROVER SELLERS 

ATTORNEY GENERAl. 

rIonorable H. ''Pat Edwards 

Civil Distriot Attorney 

Reoords Building, Dallas County Dallas 2, Texas 

Dear Sir; Opinion No. 0-6929 

Re: Clarifioation of du ies and 

responsibilities ot oertain 

555 

offioials· 11 ~'i 'oun ty 

when oer n shoar; s appear 

in the aooo ot' - Tax 

Ass r-Colleo 

Your reoent request to 

question reads' as ,follows: 

e' : 

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.. a) of Deoember 31.1944/ t,here 

e t ' the 1:lank aooount oarried as 'Una rt· ed Tax Fund Aocount NO.' 404',. a , caljlh ortege ·of $108.68;, whi,oh is reported , " Due to Banlj: from Ed oobb'", This< shortage,' ' , arises out Qf., the1'act that tlle'Ta:X:iAssesso~ , and Colleotor tailed-by, said amount, to col-

','lect as' much;: money 'as ,the tax 'receiptf;liasued . ' . '. ': '~ , '. ~ , 

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NO eOMMuNic~TION 1& TO BE CO':'!STRUIltD A8 A DEPARTMENTAL OPINION' UNL!>SS APPROVED BY TH~ A!1'0RNEY GENERAL ~.fI FIRlIT A •• 18TAN.T i:" 

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page 2 . 

by him totalleQ. The County Auditor advises that 

as of November 7, 1945, this amount still has not 

been paid to the bank or to the county TrEiasurer· 

by the Tax Assessor and Collector. . 

"(b) That on March 28, 1943, a deputy of the 

Tax Assessor and Collector lost \il150.00of the . . county tax money while on his way. from the bank. to .' 

the Tax Assessor's Oftice. said amount having been 

obtained from the bank for .the purpose of making 

change. The Auditor advisesthatss of the date of 

November 7. 1945. neither the Tax Ass.essor nor the 

deputy who lost said money had'repaid same to the 

County. 

"(c) That during the yearl94-3 the Tax. Assessor 

(,sed ad valorem tax money to oash. 'N.S.F.checks', . I I. O. U. 'forone of his deputies and .1 forged checks' . totalling *713.85, .' the. totalot .. which· ohecks, etc •• ; ... ' 

the Tax Asse·ssor. and Collector'haf:j" tor· more. than two.: · years neglec·ted to make good by ,paying the actual · cash thereon into his accountso,t .cashon hand. 

· ." ( d) '. That during the yea rs194-1,. 191;:2,. 1943 and .' 

1944 oel'tainshortages in the COllection of state 

license tees ··in ,the. Highway Department ocourre.d 'oy .... reason.ot •. the deputies failing tQtUi'l1 in .. as .. much 

"casha£> 'they hSQissuedlicensereoeiptfl 'tor, and ,. that while' the ''l'B.x Assessor .. andOollector. has .. ' . settlea..hisaocounts. with thestata, he has~ith-' 

held county funds for the purpose Of balanQin€$ his .... . accounts against Such :shortages,. and .has to .date . .'. 

tailed andp,egleoted to 'cover said alwrt$ges iuthe,"\; . sum ot $944.87 by·theplecingofaotual,aashtor " . same in his' cashaooounts. '. . . '.,' . ". 

"Upon .. ; '.'" the oonf:jidera tion ·ot . sa~dreport by tM Oom~' 

missioners' Court and a discussion 'of." 'the teiot.F.revealed 

thereby,,.. the hereinafter setfor~Jiquestions .\'1ereraised . and the Criminal Distriot>.Attbl'uey~asrequestad toad- .. vise the Oourtasto t4e law in t.ha:p~emisesin_regard to" . sam.e, it beingthEicontention: of, tha'AIlq,1tortha.t hehacl ...... " 

discharged his responsibility undertM law when here .. 'ported the fa.cte to the COJJllll.issioners ',Court, and that it 

is the duty of the COJJllll.issioners" Court to order th~ . shortages,' 'I.O.U.s',· 'N.S.F •. and Forged cheoks' removed 

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,·55'7 

H. Pat Edwards, page:3 

trom the Assessor's accounts by payment of actual cash 

into the County Treasul'Y. The Oommissioners' Court on 

the other hand, takes the position that inasmuch as it 

does not appoint the Auditor, it has no power to direct 

him as to the performance of his· duties, 'and particuJ.ar- ly sinoe by the express provisions of the ~tatutes a . positive duty is enjoined upon the County Auditor. (a) 

to 'see to the strict enforoement of the law covering 

oounty finances' (Article 1651 Revised Civil Statutes), 

and (b) the County Audi.tor is expressly, authorized 'to 

cause an aooounting and to take such steps at the expense of the County as is necessary in his judgment to 

proteot the interest of the County' (Article 165613, 

Revised Civil statutes) I the Oourt is not required to 

take any official action in regard to the situation revealed by this Auditor's Report. . 

"TheAuditor and the Cominissioners' Court agrE;eth~t . Oounty Tax money has been applied to the 'N.B.F. and 

forged checks'. etc.,. and that the Tax Aase.ssor should' 

" make good the shortage in the ad v<;llorern, tax aocount. ·A 

disagreement seems to revolve::,around the . issue as to 

whose responsibil1tyit is, to cause the s'ituatiOn revealed· 

in the report to be. remedied at the earliest possible date. 

inasmuch as ,all of the transactions revealed oocurrm more' 

th.anthree years' past •. and the. application of the statutes 

..• of lirn1tat:i.ons lsin the min4s 01' .. a11 parties. .. . 

"Accordingly. the Court has propounded and requested 

answers ,as to the law in the,l?remise~.tothetollowing 

.. questionSl" . .'. . 

"(1) . 'Is the Tax Assessor e.ndOollector per- ' , . sonallyresponsible to the County tqr the shortages 

,tN.S.li'. 'checks, 'I~O.U.sl of his deputies carried 

in his cashaccount.s, .etc., same having occurred 

in 1;hehandling of county tax ntoneys? 

11(2) If such Official is personally responsible, when should .settlement there1'tlr or payment thereof 

be made to the Oounty by the payment 'of aotual oash 

into the c;:ounty Treasurer to cover said transactions? 

"(3) Is it legal tor the County 'l'axAssessor and 

Collector· to oarry as cash items in'his accounts for 

more than thirty days 'I.O.U.s','H.S.F. checks' of 

his deputies, 'forged checks'- and, shortages chargeable to his deputies? 

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Eon" H. Pat Edwards, page 4 

It (4) Whose duty is it to demand and ,enforce a 

'settlement and payment L~ cash to the County of 

such transactions where it appears County tax 

money has been used to cover same? 

"Vie have concluded that the questions l?ropounded should 

be answered as follows: 

It(l) Under the proVisions of Artiole 7252 and 

the law as set forth in 34 Texas Jurisl?rudencs 

under 'Public Officials', Page 437. paragral?h 86, 

and the opinion of the SUl?reme Court of Texas in 

the case of Dunlal? vs Pool, 176 S. W. (2) page 310; 

the Tax Assessor is personally liable for the 

shortages, losses, forged and N.S.F. oheoks arising 

out of transactions handled, by 'his deputies in the 

aruainistration of public funds and he should forthwith pay into the County Treasurer in cash the total 

of said items. 

"(2) Under'the provisions of Article 7261 Revised 

Civil Statutes, the Tax Oolleotor is required at the 

end of each month to pay over to the County Treasurer 

'all taxesoollected for the county during said month', 

and he should in all events finally adjust and settle 

'his aocount with. the commissioners' Court for the' 

oountytaxes collected,tonor before the, 1st day of May of each year'. Inasmuch as it clearly appears from this rel?ort that all of the shortages 'N.S.F. 

and forged ohecks', 'Deputy's I.O.U.s' and other 

items occurred prior to and during the 'year 1944. 

and May 1st, 1945 has long since passed, it is our 

opinion that the Tax Assessor and Colleotor should; 

il!llllediately olear suoh items from his accounts by placing therein actual cash equal in amount to the 

total of suoh items. 

ltD) The Tax ASsessor and Oollector cannot 

legally carry as oash items for the pUrpose of 

balancing 'casb,accounts,', 'I.O.U.st, 'Shortages 'charged· to his deputies', 'N.S.F. and forged checks' 

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, longer than the end of'the oalendar month in which 

said transaotions arose; and in all events by May 1st 

of the year following the occurrenoe of such trans- ' 

actions the .TaXAssessor and Collector should :t'inally'settle his accounts by making good such transaotions by the 

payment ot aotual cash into the County Treasury. 

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Hon. H. Pat Edwards, page 5 

"(4) Under the express provisions of Artiole· 

1651, whioh enjoins upon the Oounty Auditor the 

positive duty to 'see to the strict enforoement 

of the law governing oounty finanoes', and Artiole 1665a. Vernon's Annotated Civil .statutes, 

which expressly oonfers authority upon .the Oounty 

Auditor to 'take· such steps at tUE;lexpense or the 

County as are necessary in his ilUdglllentto.protect 

the interest of the County * *"', the 'primary, " . duty to enforce a cash settlement of' transactions 

" shovinby this report to be due the County rests . upon the COWl'!;y Auditor. In the event the County" 

Auditor neglects or refrains toeniEorcesuch settle .. , ment. i,t is, our opinion that under' the prOVisions 

of Al:ticles 7262 and 7292, Revised Civil statutes, 

the Commissioners' Oourt is both duty-bound and 

.'. authorized. t,o :direct the Tax.Assessor and Collector 

to pay-the amount shown by this report to . be due 

'the Oounty, and:uponf'ailure todo,so,t,o cause', a 

suit to be instituted against theoffioial and , his bondsmen by the' Criminal Dis'trict Attorney who, . under the provisions of Article .335 of ,the ,Revised 

Civil statutes, is duty bound to bring such suit. ' . '0 0 _ , ' ' 

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. "We' are, of' th~ opinion that the law' srequ1rement as ", . ,to an aocounting 'and ,settlement of the aooountS ot the Tax ,. Assessorand,Colleotorcan,onlybemet by the payment of 

actual oal:!h. that iI:!, 'legal, tender' ,into. the County . Treasury, and ,tll.a.t although from an accounting standpoint,' 

',an 'I.O.U.' ,and 'N.S.F. ,cheok'oharged against a ,deputy,,· 

may be used by the Assessor for the purpose of balancing ,.; , , the accountl:!,. only actual cash money can be used to settle··, 

an account.' That if the law's requirement that ,all tax • , . money collected by the Tax AsseSBor and. Collector be de-

'pol:!i"!;ed into theC,ounty Depository al:! collected~ and paid 

over to the County Treasurer at, the end of each ,oalendar 

month, and that on the firatday of May'of ea,oh year a 

final adjustment and .settlement of the acoount,s,of the Tax , • 

.Assessor and. C()lleotor ,is made. no such 'I.O.U;S', 'shortages!, 

'N,.a.F. and forged ohecks' and similar items 'oouldappelilr in 

an ,official ~s,report. ' . . 

"The .'I'ax As'sessor, and Collector. as we understand his 

argumentl:!to'the CoIlllllissionerl:!' Court, contenda,that inasmuoh 

as he is under.-bond; . that he does not have to adju,stand 

settle his accounts finally by the payment of actual oash 

into the Treasury until he goel:! out of offioe. We therefore, 

respectfully ask whether or not you concur with us in our 

answers to the questions propounded and our, view of the law 

in regard to the final settlement, of aocounts 01', the Tax· 

Assessor and Colleotor with the Oounty as herein se'ttorth., 

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Hon. H. Pat Edwards, page 6 

"In cOnsideration of the questions it is to be 

borne in mind that: (a) Dallas County has a popula- tion in excess of 190,000 inhabitants; (b) Its Tax 

Assessor and Collector is paid on an a=ual salary basis; (c) It op'erates and so operated during the 

years 1943. and 1944 under the County Deppsitory Act, 

and has a duly selected, qualified and acting County Depository; and (d) The Distriot Judges of Dallas 

County urider tJ1e provisions of' the statutes, have 

appOinted and:De.llas County now has and had during 

1943 and 1944, a qualified and aoting County Auditor. . . 

"A oOlJY of the Auditor's ,Report referred to herein 

is enclosed fOr your turtherinformation, and your attention is directed, to Pages 6, Sand9 wherein the 

items referred to above are set fOrth. In regard to 

the 'torged checks·, I peg to advise that these checks 

were not accepted in payment of taxes, credit for whioh 

could theref'ore be reversed. but were aoquired by the 

Official by his' exchanging publio tax moneys tor said 

void instruments." 

, . Article 7247. Vernont.s .Annotated Civil Statutes, provides' . that eaoh Assessor /lnd Colleotorof Taxes shall give bond, pay .. able to the Governor and. his successors in ottice, in a sum 

which shall be equal to ten per cent of the whole amount of 

the state taxes of the county, as shown by the last preoeding 

tax assessment, but not to exceed $50,000.OO,condItioned for 

the faithful Performanoe of the duties of his office as 

Assessor and Collector of Taxes for and during the fullterm 

for wllich he was eleotedol' appOinted. 

Al't. 7249 provides that the Assessor and Collector of 

Taxes .shall give a similar bond to that required of him by the 

state with like conditions to the County Judge of his county and his. suocessors in office.; in a sum of .not less than ten 

per cent of the whole amount ot the county taxes. but not to' 

exceed $50;000.~ , 

Art •. 7254 provides as i'ollowst 

"The. tax oolleotor shall be the receiver and 001-

lector of ell taxes assessed upon the tax list in his 

county, whether. assessed for the state or county, school, poor house or other purposes; and he shall pro- ceed to oolleot the same aooording to law, and place the same when colleoted to the proper fund, and pay the 

sallle over to the proper authorities. as hereinafter 

provided." ", :", 

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IT. Pa t Edwards. page 7 

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Art. 7252 provides in part as follows: 

"Each Asse'ssor and Collector of Ta.xes may appoint one or more deputies to assist him in the 

assessment and collection of taxes, and may reCJ.uire 

such bond from the person so appointed, as he deems 

necessary for his indemnity; and the Assessor and 

Colleotor of Taxes shall in all cases be liable and 

accountable for the prooeedings alld misconduot in 

offioe of his deputies; and the deputies appointed 

in acoordance with the provisions of this Axticle 

shall do and perform all the.G.uties imposed and 

reCJ.uired bylaw of Assessors and Collectors of · Taxes; and all aots of such de'puties done in conformi ty with law shall be as binding and valid as 

if done by the Assessor and Golleotorof Taxes in 

'person. • • .tt 

·:'<.:dill Cor •. Jur. ,Sec .• 1315. p. 1023. lays down .the follow .. ing rulesl 

. "In regard to money oolleoted by him and. in . . his hands, a tax oolleotor is, in a. nUlIlber Of juris;';:;!·,. 

diotions, regarded, not as a bailee, but as an ',i''' 

insurer, and therefore responsible for the taxes ... collected. although he is robbed of. the money or 

it. is stolentrom him, .. o • tt . . . , 

34 Tex. Jur. •• ·Sec. 86, 'pp. 474-475. lsin part as follows, 

'. "Jill officer who is the oustodian of publio 

money does not occupy the pOSition of a mere bailee 

for hire, who is responsible only for such care of 

the money as a l?rudent man would take of his own; 

: nor is he a t debtor' to. the county within the ordinary meaning of the term, since. if he were, the 

money would be his property and he could not be · guilty. ot'm1saPl?lying it as the. otfense' is de1'ined 

in the Penal Code. He 'is bound to a.ccountfor and 

pay over the money to .the person ent1tled,::less his · 'commissions. or his sureties must pay it for him; . ..' .and neither he nor his sureties .are':relieV:ea:troiD.::,lia- .. bil1ty by thefaot that the money was' stolen without, 

his fault or was 'lost by being deposited in a bank: 

which failed without negligence on his part, except 

' .. in some cases'where the bank has beendesig..1.ated as 

a public depoei tory·.... ." 

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EtPat Edwards, page 8 

The case of Boggs vs. The'state, 46 Tex. Rep, 10, inved a claim against Anderson Boggs, and a number of other 

as his sureties.' en a tax cellector's bend... The 

fendants filed a special answer alleging tb.at Beggs, as 

Collector, having cellected the taxes; ana. being about to. 

.start to. Austin with the money', had $1,300.00 61' it stolen 

him without. his fault. (stating the circumstances ef its 

s) • The plaintiff tiled exceptions to. t.his answer. whicb. 

sustained, and this was assigned as errer. In sustaining 

:",,,,,,,,.u action 0.1' the trial ceurt, the Ceurt .efAppeals b.eld as 

"It is centended by the ceunselfor the ap;" . '. 

pellants that Boggs, being an effic.er, oQcupied 

toward. the state the pesition of a bailee.fer 

hire, in the business of cellecting, preserving, 

and accounting fer the. taxes 0.1' Rusk County, and 

that as he tookoareof the money in his hands, 

as a prudent man would erdinarilyhavedone, in' 

reference to his ewn property, neither he. nO.r his 

sureties were responsible for its, loss.".: . 

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'. "We do not undE1rstand such to. betb,e 1~g~1l>OSi:" tien and respensibility 0.1' the public efficer whose 

duty it is tecelleot andaocount tel'. the'money 01' , the state as a tax cellecter, naris it inaooerdanoe 

wi th the terms ot his bond, signed by. him and l:I.ia 

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,sureties, aspresQribed by'l.aw.;. , '; ..... • ' ,- • • 1 ',: • 

.·"He~s. bound to acceuntf{)X' sndpay ever the 

ameuntot money whicilhe celleQts.les$ :his.oomiliis;.. 

siens, 0.1' his sureties mUstdo,it'for him.n 

See also. .thetel1owing additienalauthpritie1>~ 

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Wilson v._ Wiohita COUll ty, 4 S ~_ W ~ 67; 

Cae et a1 vs.Foree. County J"Udge,·50 $. W. 616, writ retused. 

'. Peele at a1. vs.' Burnet· ceunty.· 76 3i W •. 42?'bysup •. 'at;. 

Lanham, GovernQr vs.Diesst al,98S •. ,W.897L, , .. , . American. I1),demnity ae~:et alv •.. state; 104 ,f?~ Vv.(2dJ 68, 

writ dismissed~ 

United stat.esv;. J;>resoett, ilL. Zd«_ 734. .; ,': . 

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, Hon. H. Fa t Edwards, page 9 

We think it is clear under the above rules of law that the 

Tax Assessor and Colleotor is personally liable to the county for 

,the shortages, "N.S.F." checks and "I.O,U.s" of his deputies and 

'''forged ohecks"carried in his oash accounts. etc., which occurred k 

in the handlin/fof county tax funds, as set forth in your request; therefore, your question No.1 should be, and it is, answered in 

the affirma ti ve. " , . 

Chapter 2, Title 47. which'is Articles 2544-2558a. provides for oounty depositories, ,and Article 2549 thereof, after setting forth provisions relative to approval 01' a depository bond. contains the following provision: 

". • .It shall also be, the duty of the tax col .. lector of such county to deposit all taxes collected 

byh1m, or under his authority, for the state and 

such cOunty and its various districts and other' 

munic1paJ, ~ubdivisions, in such depository or deposi- tories,'assoon as collected, pending the preparation of his report of such collection and settlement thereon. , - -------- ' 

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Art. 7249a is as follows! 

"On Monday of each week each County Tax Collector 

Shall pay over to the county Treasurer ,ninety per cent 

(90%) of all taxes collected for the County during the 

pr,eceding week, and pay over to the state Treasurer 

ninety per cent (90%) of all taxes collected for the 

state during the preceding week .. 

"The Oommissioners' Court ofauy County, or the ' 

Comptroller of Public Accounts. may at any time in 

their discretion call upon the Tax collector for a 

sworn statement as to the amount of his collections 

made during the current month, and tor til report as to 

the amount of taxes in the Oounty Depository belong- ing to the Oounty or state, and direot that ninety 

per cent (90~~) of those tunds be transferred to the 

County or state Treasury. The COminis,sioners' Court 

or the Comptroller mGlY at any time require a sworn 

report trom the Depository as to the amount ot funds 

in their hands under the control of the Tax Colleotor. 

J;'ailure or refusal of a Tax Collector' to make the 

remi ttances as provided in this Aot within three (3) 

days from the date due, or to render the statements 

required herein, within, three (3) days after reoeiving 

notice to do so, shall oonstitute a misdemeanor and 

shall be punished by a fine not to exceed ~vo Hundred 

-<.Dollars' ~?200. 00') ." 
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.' E. Pat Edwards, page 10 ~. 

Art •. 7250 is as tollows: 

''Except as to compensation due such tax collector as shown by his approved reports, tax money depOSited in oounty depositories shall be paid by such depositories only to tressur~rs entitled to 

receive the same, on checks d:!:'awn by suoh tax 001-. 

lector inys:or of such tl·easurer •. ~t 

Ax·c" 7260 provH!.es in part ~s follows: 

"1. At the' end of' each month the Tax Collector shall, on forms to be furnished by the 

Comptroller,make an itemized report under oath to 

the Gomptroller,showing each and every item of ad 

valorem, poll and oocupation taxes oollected by him 

durj,ng said m.onth" aooom.panied by a summarized statement showing full disposition of' all state taxes 

collected, provided that said itemized reports f'or 

the mqnths of Deoember and January of eaoh year·may 

not be made for twenty-five (25) days a:r-ter the end 

ot such months it same cannot bellompletad by the end 

ot suoh respective months. 

"2. He shall present suoh report, together with . the tax reoeipt stubs. to the' County Olerk, who shall 

within two (2)d.ays compare said report with said . stubs ,and' it same . agree in every partioular as· regards nam:es, dates and amounts, he shall certify to 

its correctness, • • • .. provided that in coUltties 

having a County Auditor the work mentioned in this 

paragraph shall be done.by the County Auditor rather 

than the County Olerk. . . 

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":3 •. The'1!ax Colleotor shall then ;!.mmediately 

forward his reports so oertified to the Oomptroller, and shall ·pay-over to the state Treasurer all moneys oolleoted by him tor the State during said month, exoeptin~suoh amounts as ~e is allowed by law. to pay in his county, reserving only his commissions on the . v 

total amountoolleoted •••.• " 

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"4. The Tax Collector shl"\11 pay over to the state 

Treasurer all balances in his hands belonging to the 

State, and finally adjust and settle his account with 

the Comptroller on 01' before the first day of 11ay of 

each year •. and to enable him to do so, tl;.le COlllillis-

.sioners Court shall convene on or before the third 

Monday in April for the }?u:rpose of examining and appl'OVin~.t inal . se ttlemen t papers. II 

Art. 7261 provides in part as follows: 

. "I, The Tax .Qollector shall I'd the end of each 

month make like.teports to theColllilliss"ioners' Cou:rt 

01' all the collel:Jtions made tor the COUll ty. 'conforming 

as faI' as applicable and in like manner to the requirements as to the oOllection and report of taxes .collected for the State ••. ~ 

tt* * * 

"3. The Tax Collector shall im.'llediately pay over 

to the County Treasurer all taxes collected for the 

county during said month, atterreserv'inghis cOlllillissions tor collecting the same, and take receipts there'" to~. and tile with the County Clerk. 

"4. At tb.e next regular meeting of the Commissioners"< . Court, the Tax Oollector shall' apllear before said. Court .... alidmake a sUlIliJlSrized statement. shovling the disposition of all moneys. both of the state and county t collected . by him during the previous three (3) months. said statement must.show that all taxes due the state have been 

promptly remitted to the state Treasury at 'the end ot .. . each month, and all taxes due the countS' have been paid .' 

over promptly to the County Treasurer and. shall file 

proper,Vouchers and receipts showing same. 

"5. The COlllillissionersl Court shall examine such 

statement and vouchers; together with an itemized. report and tax 'receipt stubs filed each month. and shall compare the same with the tax rolls and tax receipt.stub$. It· . found oorrect in every particular. and. it the Tax co1-

leotor has.properly accounted for all taxes collected; 

as provided above; the Commissionerst Cour~ shall enter 

an order approving said report. and the oruer approving 

same shall be recorded/in the minutes. . 

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• H. Pat Edwards, page 12 

"6. The 'l'ax Collector shall finally adjust and 

se ttle his a ocount; with the COL'llllissione·rs f Court for 

the oounty taxes oolleoted, at the same .time and in 

the same manner as is provided.in the foregoing Article in his settlement with the State~" 

Art. 7262 provides as follows: 

"If any tax collector shall have failed at the end 

of each month, or within three days thereof, to promptly remit to the state Treasurer the amount due by him to 

the state, or pay over to the county treasurer the amount 

due by him to the county, the commissioners court, at the 

next regular meet~ng. shall asoertain the facts; and if 

the taxcolleotor fails or refuses to payor remit the 

sal::!.e and file proper vouchers therefor, as provided in 

the foregoing article, the commissioners court shall not 

approve his reports and aocounts,b4t shall ascertain 

the amounts due by him, both to the State and oounty, and enter an order requiring him to pay the same to 

the proper treasurers, as is provided in Artioles 

7294 and 7295. and notify suoh colleotor. as is pro- vided for in Article 7296 under penalty for failure to 

do so. Whenever the tax oolleotor shall fail or refuse 

to remit to the .State·Treasurer the amounts due the 

State,when requested, thEl Oomptroller s.hall notify him. II 

Art~ 72.95 is as follows: 

"All tax·collectors and other officers or .appointees authorized to receive public moneys shall aocount for 

all moneys in ,their handS belonging to their respective 

counties, cities Or towns, aud pay the same over to the 

respecti va county tre!:)surers or oi ty treasurers whene.;v~r 

and as often as they may . be directed to do ·so by the, 

respeotive county judges, or county commissioners oOUrts 

or mayor 61' board of aldermen; provided that tax 001-

lectors shall have ten days from the date of such di .. rection within which to' oomply with the same." 

566 
! 

J 

, 

H. Pat .::.iiwards, page 13 

Under the above statutes, the Tax AsseSSOl' and Collector 

has the following duties to perform: To deposit all taxes 

collected by him, or under his authority, for the county, in 

the County Depository, as soon as collected, pending the 

preparation of his reports of such collections and settlement 

thereon; on L;onday of each week to pay over to" the County 

Treasurer ninety per cent (907~) of all taxes collected for the 

county durine the preceding week; at the end of each month to 

'make an itemized report under oath to' the Commissioners' Court, 

showing each and.every item of ad valorem, poll and occupation 

taxes collected by him during said montll for the County, accompanied by a sWll!llarized statement showing full disposition of all County taxes collected, provided that said itemized 

reports for the months of December and January of each year 

may not be made for twenty-five (25) days after the end of 

such months if same cannot be completed by the end of such 

respective months; immediately after making said report, to 

pay over· to the County Tl'easurerthe balance of all taxes 

.' collected for the county during said month, after reserving '. his cOillUlissions for collecting the same; to al)pear at the next 

regular meeting of the Commissioners' Court and make a summa-

.rized statement, showing the disposition of all money of .the . county collected by him during the previous three months, and 

that illl taxes due the county have been paid over prom:ptly to 

the COLmty treasurer; and finally adjust. and settle his account 

wi th' the COmniissionars'Court for "the COLmty ta.xes colleoted on 

or before the first day. of May ot each year. 

If the 'rax Assessor and Cpllecitor tails "at the end of each 

month, or within three days thereof, except for the taxes collected in the months of December and January, to pay over to the 

County Treasurer the amount due by him to. the county, the commissioners'court, at its next regular meeting. Shall ascertain 

the facts; and ifh6 fails or refuses to pay same, as provided for in Art. 7261:. the cOillUlissionerst court shall not approve his reports and .accoun"t;s, but shall ascertain the amount due by him to the county and enter an order requiring him to pay same 

to the treasurer, and notify him thereof, and said Tax Assessor 

and Collector shall have ten days from the dat.e of. such direotion in which to comply therewith. . 

It is our opinion that your question No. 3 should be 

answered in the negative as it is clear that,under the aUthorities and rules of law hereinabove referred to, the Tax 

Assessor and Collector should make monthly reports of taxes 

'-'," 
_-------"----- . . L _____ ~ __ . ___ ~~ 

, -

Hon. H. Pat Edw!lrds, page 14 

. collected by him, as well as make payments thereof to the 

proper authorities. In no event should such reports or payments be delayed by reason of any of said publio funds having been used in any way by the deputies of the Tax Assessor and 

.collector, as the law does not authorize the use of any of . said funds by the Tax Aflsessor and Collector, or any of his 

.--deputies, None of said funds belong to the Tax Assessor and 

Colleotor audall of same should be paid to the -pr'oper authorities as set forth in the various statutes governing the 

568 

.• handling thereof, and no part of said funds should be used to· 

take care of "I. O. U.s", "1>J. S. F." checks, or "forged ohecks". 

--or shortage,~any kind. 

Art. 1710 is as tollows: 

"The county-treasurer shall keep a true account 

of the receipts and expenditures of all moneys whioh 

shall came into his hands by virtue of his Office, 

and of the debts due to and from his oounty; and" 

direct prosecutions aocording to law for the recovery 

of all debts that may be due his county, and super- i~tend tr~lection thereof." 

Art._ 1714 is as fOllows; -

"He (the county treasurer) shall examine the . accounts, dockets and reoords of the olerks, sherit;f 

justices of the peace, constables and taxcolleotor - of his county •• for the purpose of ascertaining whether 

any moneys of right belonging to his county are in . their hands which have not been accounted for and paid 

over according to law, and -shall report the same to- . the-commissioners' court at their next term, to the 

end-that suit may be instituted for thereco:very thereof." (parenthetical matter ours) 

In the- case of Simmons vs. Ratliff lOt al, 182 s. W./(2d) 

8-27. writ refused, the court had under consideration an action _ instituted by ap~el1ant in trespass to try title to land fOrmsr-

"ly belonging to~ains County and in which the contention was 

made that the county treasurer "of Rains County. and not the 

Commissioners'Court, was authorized to declare a default 

under a deed of trust,·- this contention being based upon Article 1710 above setout. In overruling said contention the 

court held· as follo'lvaf 
Eon. ii. Pat Ec.wqrc.s, page-l.5 

"under the quoted statute, the county treasurer 

c.oes have authority over certl;tin funds of.the county 

and authority to direct the prosecution of suits for 

tile collection thereof, and such authority has been 

upheld by the courts. Trustees of Lytle School Dis., 

trict v. nads~ County Judge, 24 Tex. Civ~ App. 433, 

59 B. w. 830. The authority given to the_county 

treasurer by the statute is not exclusive, however, 

and it has always been the law in this State that the 

tribunal which we now designate as the commissioners' 

court is the executive head of the county and vested 

with authority to determine when suits or other ac., .0_ 

tions Sl10uld be instituted to recover furids belong- . ing to the county~ .or any othel' suit involving the. ! 

rights o~property of the county, Looscan v~ county . of Harris. 58 Tex. 511; Ehlinger, county Judge, v. 

Clark. 117 Tex. 547. S 3 .. '1{. 2d 666;nelta.County 

v. Blaclcburn,lOO Tex,. 51, 93 s.w. 419. Without 

attempting to speoi.fy the'nature of any.claims or 

suits Over which the> county treasurer1llay· haye e;-::-. 

clueive jurisc.iction, it· is sufficient to· say that,- . unquestionably;, the corJJllissioners' court has at least 

oonourrent jurisdiction OVer such matters as those .. il1volvedhere and its action in de.blaring the indebted~ 

ness due andlnstructing its trustee to foreclose the 

deeder trust lien . involved in .thi.s case was fully 

authorized by the law," 

569 

In the case of Hoffman et a1 vs. Deviset al, 100 s. W. 

(2d) 94, theColllfllission of Appeals was considering a si tuation 

whel'a taxpaying citizens had brought suit against officers and 

eX-Officers of the county and their bondsmen to recoVer for the 

alleged unlawful expenditure by such officers of county funds, 

and the court announced the following rule as to who is au- . . thorized tohring suit for a (jounty under such -circumstanoes: 

"Ordinarily, the cOllllllissioners' court alone 

determines whether litigation shall be instituted 

in behalf of the county, but iJi tIlis· instance the· 

majority. oftllatcourt are the ones charged .with .. dereliotionof duty, and it is therefore in no . position to act for the county. In that situa-. 

tion, undertha foregoinB statutes, the county 

treasurer, to whom the bonds are payable, has 
_

,L. .... L 

H. l'a t Edwards; page 16 

the statutory authority to protect the county's rights and direct the institution of suits in 

.nis .name for .the use of the county upon these 

bonds. The ouestionthel1 is: Where the authoritr to institute litigation in behalf of a 

county is vested by statute in a particular body 

or officer; maya priVate citizen determine whether 

such litigation shall be inst1tu·ted and himself 

institute and pro,secute it? 

"In the case of ]"ooscan v. County of Harris. 

58 Tex. 511. there lI;I'lS presented for decision the 

question of· the right of a district attorney. when 

the colllilissionerst court refuses to act, to maintain a suit in the name of the county against 

certain officials tt) recover money illegally paid 

out. This court, after determining that there was 

no statute authorizing the district attorney to 

institute the suit, announced the rule that, since 

the right to do so was vested in the cOlllll1issionersi 

court, thet right must be held. to be exolusive. We 

quote from that opinion; I ThG cOlllll1issionersl .cour:!> 

undoubtedly has the. right to cause suits to be instituted in Ute name of and for the benefit of the 

county, and except.Where a concurrent right to do 

the samathing; ol'where an exclusive l'ight in a 

specified case or cases is conferred upon some. 

other. tribunel or some other officer of the·. 

·government ,the .. commissioners f· court must oe 

deemed to be the Quasi executive head of the 

county, vested with' exclusi'(6 power to determine 

when a sui taMl! be instituted in the :name of and 

.'1'.)1' the benefit .ofth6 county. t 

"As above polntedout,· both the co=isaionerst 

court and the county treasurer are vested by statute 

with the right, to institute this litigation. Since . the former is .inno ,Position to act, therignt of 

the latter to dosoia exclusive, unless there is 

conferred upon the county or district attorney by 

8.rticle 339 the concurring right - a question which. I. 

we need notdetel"lliine." 

,. 
-.---------~---.~------

. . 

lion. ci. Pa t Edwards. page 17 

It is our opinion, therefore, tl':;a~ i!{i:thls instance, 

since funds belonging to the county ars":.fnv'ol'lred. the commissioners' Court- has the right and duty'to determine 

v,Ilethe:r or not it will ha vesui t fil,ed:"in ',behalf of the 

COQ!lty. But this right is not exclu,'sive' in'the Commissioners', 

Court, for tlle reason that, under the above cited authorities, 

the COUEty treasurer also has authoi'ity to direct prosecution. 

according to law for the recovery of said funds as debts due 

his C01l.c'1ty. There are also statutes which make it the duty 0:1:' .the county or district attorney to see that suoh claiJl).1;l . are .paid.~. i.-

Article,.339 provides. as follows; 

"When it shaJ,.l cometo.the knowledge of any district or county at"torneythat any officer in 

his district or oounty entrusted with the co11ectionor safe l~eeping of any public funds is in <=lny 

manner whatsoever neglecting or abusing the trust . confided in him, or in anywa.y failing to dischin.'ge 

his duties' under the law, he shaLl. institute suoh 

proceedings as are necessary to oompel the performance of suoh duties by such officor"and to preserve 

and protect the publio interests." 

Wo had occasion to oonstrue t.ti.isstatut~reoentlY in our 

OpiniJ;J.No. 0-6376, a. copy of which is enclosed herewith, 

wherei.t;l wewerEl passing upon whether or not itwas.the duty 

571 

. of a County Attorney to bring a sui t against an' ex-tax col-.; 

lector and the sureties on his bond to reoover fees colleoted 

by him under. the Automobile Certificateo:t'T1tleAct., After 

rarerring to various, authorities. we l1eld, as follows; 

"We thinkitis olear, th~reiore.th~t it is the 

official duty of the county attorney .. to bring a civil 

suit against· the ,Tax Collector ;r:eferred to and the 

surety on his bond to re co.versald money •. We do not 

believe that the faot that said Tax Collector has 

gone out of,offioe makes any difference as to the duty 

of the county attorney in this' respeot, aasaid. Tax 

Collector was an officer at the time that the obligation arose and S.Sllle are not cancelled or discharged 

by his gOing out of office.· 

, r 
t,~. 572 

.Hon. :i. Pat lhdwards, page 18 

HGI'dir:arily the Co.tr.5!lssiDners9' Court Blone deternines wiether litigation shall be instituted in favor 

of the covllty, and. in some instances tlle county treasurer 

has the statutory au:r:cori ty to protect the county's rights 

.'\Ed dir'ect. t.he i::l.stituUon of suit in· his name for the 

use of the county. It might be :well, therefore, to have tt~(~ :lpproval of these officials in this instance, though 

it ia our opinion that the county attorney has the concurring rieht, as well as that i"l; is his duty to bring 

tlle action. lloff.man et e1 v. Davis, 70 s.w. (2d) 637, 

1"0·' v' ~. ,. (?" 9' li ..... (.1.) J+. n 

Your attention is also di!'ected. to the case of McAskill, 

District Attorney, vs. TO'r'ell, Distl'ict JudGe. et aI, 259 

SOlI ·'~1. 914, b.Y· the Saprelrre Court, 'Wllich involved the right of 

the Distr.ict Attornoy" to Pl"08cCLlte and. control· a su.it insti tuted by tlls COUD. ty of Ile:uu'. by or-di>l' of.' its· Gomnil.lsioners' 

Court. ElgQinst the; Oounty AttorUey of .5e~ta;::, County to recover 

certain 0'l:.10 01' m:mey alleged to belong to :3exo1' County. received by said Cou.nty Attorney a.nd not r·epo::';.;ed or accounted 

for by ~il'l. Un de l' u contract with the COlllillissioners' court, 

ti1e County was represented by other attorrH.lya. It aIJpeared 

f'l'om the statc,:1ent offects that in like r,ll:tmWr suit !:lad oeen 

brought egainst the District Clerk, the County 01e1'1c, the· ',-: ... Sheriff and the Oonstable to l'ecover exoess 1'«08. not accounted 

for to tb.e county.. lrte' trial 'court llelo_ t}1,:ftt· SUCll other offi .. cials came witl1in tt.B tl:)rlts 01' Artl'cllq 366 ~;QOW .tl.rt. 3"39)", "but 

that the County Attorliey WI.).S not included thOirein, as he was 

'not "elJcrusted with the coll<;,ction or safekeeping of any public fun.d s." 'J!b.e 8Up:::-cl:16. Court llelcl that this :::uliJlG was 

erroneolls, and that the statute vests the District ,Attorney 

with the 2'igl1t to i7l:'osecute and contl'ol such suit, and that 

the duti0S imposed upon h::'lIl by the statute could. Jlot be 

proper::";}' e:z:ercissd without authorJ.ty to control such suit. 

See also, Ser,g16r et 81 vs. AdaIfls et al, 2)8 5. ,f. 707, 250 

S. W. 413, wll.el'''in the Oourt of: Civil Appeals (238 S. w. 708) 

after s.,tting out what is now Article 339, laid down .the following rule: 

"W6 think the purpose ot this·statute was to 

eX,ll'esslv preseril.)!:) the duties of' the district or 

cOUntyattcI'ney in the circumstances therein 1'eoit(;d., <;lld that the Legislature did. not intend 

tilereby to limit the commissioners' court, in their 

general Llanagement of the county's busiIless affairs. 
_----.'-. I. - /.,4, Yl 

. '. 

:Hon. n. lOot bdwards,' page 19 . 

to the u-cilization of ·the services of the one or 

the other of those officers. The duties of the two 

sets of officers are in no manner made·correlative, 

and ;i. t is di1'fic\)~t to see in VJl.1at way this positive 

requirement upon the district or county'"attorney as 

to his independent duty could have any reference to 

members of the commissioners' court •. It seems to us 

that the matter of the duty thus laid u.;?on the attorney and that of the general authority of the 

commissioners' court are quite apart. Since the 

quoted statute not only i:a:posed the Quty. but also 

ccnferred the corresponding privilege upon'the . officer named of instituting suits of the character 

specified in behalf of the county,it may well be . that the commissioners' court would lack the power 

to displace him from his rightful authority in that 

regard, butj as our statement of the facts has shown, 

nothing of that sort was contemplated or 'attempted . in this case •. 'rhe pleadings and the affidavits 

in evidence before the tri,,-l .b.ourthereshowea. that 

the purpose of these. contracts was merely to have 

the outside attorneys assist the county attorney in the sultscontJ:acted for," '. . '. 

Art. 52";24 of our Code of Criminal pr6cedurecreated the 

office of ,"CriJuinal Districtl.ttorneyof Dallaseounty" and 

provided t11a t such official' should have .,in addi,tlon. to others. 

the fOllowlnepowerst .. ... . 

"The'criruinal District Attorney or Dallas County 

shall h<lN and exercise inaCidition to. the· specific . powers given and" the duties 'imposed upon him by this 

Act; all suchpowers,'dutes (duties) and privileges 

wit):lin said Criminal Dist:rict of Dalla:a County as are 

by law now conferred, or whicb. may hereafter be 0011-

farred upon districtl:i.ti& county attorneys in the 

'.' various oounties and. judicisl distrlcts of this' 

! 

state." . 

Therefore. the rules of law hereinabove. set out· as being applicable to a county Or C,istrict attorney are also applicable 

to the Criminal District Attorney of Dallas County.' 

.Art. l656a,V. fl..C. 's., impoS6scertain duties upon county 

auditors in all counties having a population of one hundred and 

ninety thousand or more accordiw.g to tilE! last preoeding Federal 
Hon. H. Pat Edw31'ds, page 20 

census, and. clO.thes suoh offi oers with certain enumerated powers pertaininG to the accounts of all oounty offioers, inoluding District Clerks and District Attorneys, and all preoinct officers. 

Saidartiole contains the following provisions: 

.. * >i< *At the close of any fiscal year., or accounting peribdn.ow or hereafter fixed. by law, the 

County Auditor s11all audit, adjust, and .settle the 

accounts of.such offioer. In the event the. County Auditor sh81+ be unable to obtain proper reports or 

an adequate accoimting from any Distriot Attorney, District Cler1\., oounty or preoinct officers 'as herein 

provided. either during or after his term of office, 

the County Auditor shall have authority to enforce 

an accounting thereof, and to take such steps at the 

'expense of the county as are necessary in his judgment to protect.,the interests of the county Or of 

the persons, firms, Or corporations entitled to such 

funds." 

It is our opinion that this statute authorizes the county Auditor of Dallas County, one of the counties towhioh said . eta tute applie s. to take suOh legal action in the name of tb.e 

'oounty ashe deems necessary to enforoe the oollection of any 

money he finds any of the. officers named in the statute to be 

due the county. and to that endb.e may call upon the criminal 

District Attorney of Dallas County to file suit against the 

delinquent Officer. Should the Criminal. District Attorney fail or refuse to take such legal action, the .County AUditor 

may. at the expense' of the county, employ some attorney to file . . suoh suit •. However; the authority of the County Auditor to . take such legal aotion· is not an exclusive authority. but is 

concurrent with the authority of the Commissioners.' Court and:.' 

County ':;reasurer, as well as tIle duty imposed by statute upon' 

the Criminal District Attorney. 

It is our opinion that the COL'411issioners' Oourt, una.er 

its authority to control and manage the finances and l:1usiness 

affairs of the county. has the power and authority to request the Distriot Attorney to bring a suit to enforoe settlement 

of such claims as those here under consideration •. It .also 

has the 'power and authori,ty to employ attorneys to assist 

him in the proseoution .t~~reof •. Under the faots here 

presented. it is .alsothe duty of the District Attorney to 

.,-, 
Iloil.. H. Pat Edwards, page 21 

file such suit and prosecute same independently of any request 

so to do from the Camm.is sioners' Court, COUi'l.ty Audi tor or 

County Treasurer.. " 

We herewith return to you the County Auditor's rellort 

enclosed wi til. your request." 

JWB: LJ 

encl. 

,Yours very truly» 

ATTORKEY GENERAL OF TEXAS 

BY, ()~. 2r.~~, , ~' Jas •. W. Bassett ' 

" " Assistant