‘ 

THEA~ORNEYGICNERAI~ 

OF TEXAS 

AUSTIN. T-s 78711 

The Honorable Jim Sharon Bearden 

Orange County Attorney 

Orange Courthouse 

qrange, Texas 77630 

Opinion No. H- 360 

Re: Liability of district 

clerk for disappearance 

of trust funds. 

Dear Mr. Bearden: 

Your letter requesting our opinion reads: 

I have been asked by the District Clerk and the 

County Auditor for an opinion from your office 

on the following question: 

Is the District Clerk liable for trust funds 

(child support monies) that have mysteriously 

disappeared? 

On about January 3, 1974, $500100 in cash of child 

support money came up mysteriously missing. .,There 

is no evidence indicating that any of the deputy district 

- 

clerks assigned to the child support office were involved in the disappearance. 

You summarize: 

1. Is the district clerk personally liable for funds 

that have mysteriously disappeared that were in her 

possession in trust? 

2. If it can be established that this money was stolen 

by an outsider without fault on the part of the district 

p. 1692 
The Honorable Jim Sharon Bearden page 2 (H-360) 

clerk, would the district .clerk be liable personally 

for such funds? 

We understand from your letter that we are to assume the funds 

were paid into the Registry of the District Court and came into the constructive or actual possession of the Clerk at some time. The brief accompanying your request sets out the applicable statutes and ably reviews the 

authorities as follows: 

Article 2558a, Sec. 9, V. T. C.S., states: 

The County and District Clerks shall not be 

responsible for any loss of the Trust Funds 

through failure or negligence of any depository, 

but nothing in this Act shall release any County 

or District Clerk for any loss resulting from 

any official misconduct or negligence on his part 

nor from any responsibility for’ such Trust Funds 

until a depository shall be selected and the funds 

deposited therein nor for any misappropriation of 

such funds by him. Upon the deposit in the legally 

selected depository of the Trust Funds by any 

County of District Clerk, such Clerk shall thereafter be relieved of the safekeeping of said funds. 

Article 2290, V. T. C. S. says: 

The officer having custody of any money, debt, script, 

instrument or writing, or other article paid or 

deposited in court during the progress of any~cause 

to abide the result of any legal proceeding, shall 

seal up in a secure package the identical money or 

other article so received and deposit it in some 

safe or bank vault, keeping it always accessible and 

subject to the control of the court; and he shall also 

keep in his office as a part of the records thereof a 

, 

ps 1693 
I 

The Honorable Jim Sharon Bearden page 3 (H-360) 

correct itemized statement of such deposit, on 

what account received, and the disposition made 

of the same. When his term of office expires, 

such officer shall turn over to his successor all 

of such trust funds and other property and the 

record book thereof, taking his receipt therefore. 

This article shall not exempt any officer or his 

surety from any liability on his official bond for 

any neglect or other default in regard to said 

property. 

In 47 TEX. JUR. 2d, Public Officers, Sec. 136, p. 175, it says: 

An officer who is the custodian of public money does 

not occupy the position of a mere bailee for hire, who 

is responsible only for such care of the money as a 

prudent man would take of his own; nor is he a “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 of misapplying it as the offense 

is defined in the Penal Code. He is bound to account 

for and pay over the money to the person entitled, less 

his commissions, or his sureties must pay it for him; 

and neither he nor his sureties are relieved from 

liability by the fact that the money was stolen without 

his fault . . . . 

You have also cited to us Harllee v. State, 18 S. W. 2d 1091 (Tex. Civ. 

APP. --Waco 1929), in which the court said that the Clerk of the district 

court and his sureties were liable for money deposited in the registry of 

the court for minors, notwithstanding the unauthorized attempt to pay the 

minor’s father, and Lq-ham V. Dies, 98 S. W. 897 (Tex. Civ. App. 1907) 

a suit in which the district clerk had deposited money in a safe that was 

supposed to be burglar-proof. Burglars later proved thatthis was not the 

case and the court held the district clerk liable. 

p. 1694 
I 

. 

The Honorable Jim Sharon Bearden page 4 (H-360) 

We believe the statutes and cases you cited support affirmative 

answers to your questions. Also see Lawyers Surety Corp. V. Reina, 

483 S. W. 2d 911 (Tex. Civ. App. -- Amarillo 1972, writ ref. n. r. e.), 

and Co1 v. Force, 50 S. W. 616 (Tex. Civ. App., 1899, writ ref.); 

Attorney General Opinion M-1198 (1972). 

In our opinion the duty of the clerk to account for the money is 

absolute.. 

SUMMARY 

The duty of the District Clerk to account for child 

support money paid into the Registry of the Court is 

absolute, and the Clerk is liable for its mysterious 

disappearance prior to its deposit in the official 

depository therefor. 

Very truly yours, 

Attorney General of Texas 

DAVID M. KENDALL, Chairman 

Opinion Committee 

po 1695