OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN GROVERSELLERS ATTORNEY GENERAl.

rIonorable H.''PatEdwards Civil Distriot Attorney Reoords Building, Dallas County Dallas 2, Texas DearSir; Opinion No. 0-6929 Re: Clarifioation of du ies and responsibilities ot oertain 

## 555

offioials· 11**~'i**'ounty 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 TaxFund Aocount NO.' 

### 404',. a , caljlh ortege·of $108.68;, whi,oh is reported , " Due to Banlj: fromEd 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** FIRlITA••18TAN.T i:" f'·

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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 taxmoney while on his way. from the bank.to.' the Tax Assessor'sOftice. 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 moneyto oash.'N.S.F.checks',
. II.O.U.'forone of his deputies and .1forged checks'
. totalling *713.85,.'the.totalot
..which·ohecks, etc•• ; ...' the TaxAsse·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 years194-1,. 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 purposeOf 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:jideration

### ·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 lawwhen 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. PatEdwards, 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 asis 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 oocurrmmore' th.anthree years'past•.and the. application of the statutes ..• of lirn1tat:i.ons lsin the min4s 01'
..a11parties.
.. . "Accordingly. the Court has propounded 

### andrequested 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 taxntoneys? 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? . i 

### I ,

### )"**~**---.



### Eon" H. PatEdwards, 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 TaxAssessor 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 forthwithpay 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 eachmonth to pay over to the County Treasurer 'all taxesoollected for the county during saidmonth', and he should in 

### all events finally adjust and settle 'his aocountwith.the commissioners' Court for the'

oountytaxes collected,tonor before the,1st day ofMay 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. andMay 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 TaxASsessor 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' i '



### , longer than the end of'the oalendarmonth in 

### which said transaotionsarose; 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. PatEdwards, 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,
.

underthe 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~ opinionthat 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,,· maybe used by the Assessor for the purpose of balancing ,.;
,,the accountl:!,.onlyactual cashmoney can be used to settle··, an account.' That if the law's requirement that ,all tax •,

.money collected by the TaxAsseSBor 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 ofMay'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 askwhether ornot 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 Colleotorwith the Oounty as herein se'ttorth., OJ ,

oJ ,.**~**

# L 560 Hon. H. PatEdwards, page 6 "In 

### cOnsideration of the questions it is to be borne inmind 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 ofDallas 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 taxmoneys 

### tor said void instruments."

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### . 

### 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 centof 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 wllichhe 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 ofell 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." ",:", I' 

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IT. Pat Edwards. page 

### 7 

# V Art. 7252 provides in part as follows: "EachAsse'ssor and Collector of Ta.xes may appoint one ormore 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 conformity 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 stolentromhim,
..o •tt . . . , 

### 34 Tex. Jur.••·Sec. 86, 'pp. 

### 474-475. lsinpart as follows, '. "Jill officerwho 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 tdebtor' to.the countywithin 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 depoeitory·.... ." 

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'.'**~** !EtPatEdwards, 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 allegingtb.at Beggs, as Collector, having cellected the taxes; ana. being about to. .start to. Austinwith 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.".:
. '. \. 

### '."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 with the terms 

### ot his bond, signed by.him and l:I.ia ," '.

,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'forhim.n See also. .thetel1owing**additienalauthpritie1>~**

, ,'. ..,

Wilson v._ Wiohita COUllty, 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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## 563

,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 questionNo.1 should be, and it is, answered in the affirmative. " , . 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 eachweek 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 currentmonth, 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 ComptrollermGlY 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 remittances 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')."'.'"." 

### .' E. PatEdwards, page 10**~.** 

### Art•.7250 is as tollows: ''Except as to compensation due such tax collector as shown by his approved reports, taxmoney depOSited in oounty depositories shall bepaid 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' eachmonth 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 suchmonths 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 inevery 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 CountyAuditor rather than the County Olerk.
. . 

# L 564

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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 byhim 

### 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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### H. PatEdwilrds. page 

### 11 

### "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
.settlement 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 regularmeeting 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 countyt 

### 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 ..

.eachmonth, 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; togetherwith an itemized. report and tax'receipt stubs filed eachmonth. 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.
.



### /**;~** I' 1 ,'"

### • H. Pat Edwards, page 12
"6. The 'l'ax Collector shall finally adjust and settle his aocount; with the COL'llllissione·rsf 

### 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 eachmonth, 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 shallnot 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 penaltyfor 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 allmoneys in,theirhandS belonging to their respective counties, cities 

### Or towns, aud pay the same over to the respectiva county tre!:)surers or oity treasurers**whene.;v~r** 

### and as often as theymay.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
.. rectionwithin 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 saidmonth, 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 with'the COmniissionars'Court for "the COLmty ta.xes colleoted on or before the first day. ofMay 

### ot each year. If the 'rax Assessor and Cpllecitor tails "at the end of each month, orwithin 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 questionNo. 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 shouldmake monthly reports of taxes

'-',"_-------"-----

. .L

_____**~**__. ___**~~**

, 

### -

Hon. H. PatEdw!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 anymoneys 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 suitmay be instituted for thereco:very thereof." (parentheticalmatter 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'lvafEon. 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 notexclusive, 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 tospeoi.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 situation 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'at 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; IThG 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
..commissionersf·court must oe

deemed to be the Quasi executive head of the county, vested with'exclusi'(6 power to determine when a suitaMl! 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. Pat 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 havesuit 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

.confidedin 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 tovarious,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 reco.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:cority 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·' ,. (?" 9'

v'**~.** 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 instituted 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 belongto :3exo1' County. received by said Cou.nty Attorney a.nd not r·epo::';.;ed or accounted for by**~il'l.** Undel' 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.ds." '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,itmay 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 assistthe countyattorney in the sultscontJ:actedfor," '.
. '. Art. 52";24of our Code of Criminal pr6cedurecreated the office of,"CriJuinal Districtl.ttorneyof Dallaseounty" and provided t11at such official'should have.,in addi,tlon.to others. the fOllowlnepowerst
.. ... . "The'criruinalDistrict Attorney orDallas County shall h<lN andexercise 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 lawnow conferred, orwhicb. 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 ormore accordiw.g to tilE! last preoeding Federal

### Hon. H. PatEdw31'ds, page 20

census, and. clO.thes suoh offioers 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 CountyAuditor 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 ofDallas County, one of the counties towhiohsaid

.etatute applies. 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.DistrictAttorney 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, aswell 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 DistrictAttorney to .,-,, '" I I _. 2

_5

Iloil.. H. PatEdwards, page 21
file such suit and prosecute same independently of any request so to do from the Camm.issioners' Court, COUi'l.ty Auditor or County Treasurer.. " 

### We herewith return to you the County Auditor's rellort enclosed witil. your request."

JWB:LJ encl. ,Yours very truly» ATTORKEY GENERAL OF TEXAS BY,

# ()~.**2r.~~,**

,

### ~' Jas•.W. Bassett '

"" Assistant



# l

'"1**~**

',',r,'\, :':l**~~i** 'II