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# 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 ofdistrict clerk for disappearance oftrust funds. Dear Mr. Bearden:

Your letter requesting our opinion reads:

Ihave been asked by the District Clerk and the County Auditor for an opinion from your office onthe following question: Is the District Clerk liable for trust funds (child support monies) that have mysteriously disappeared? Onabout January 3, 1974, $500100 in cash ofchild support money came upmysteriously missing. .,There is no evidence indicating that any ofthe deputy district - clerks assigned tothe 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. Ifit can be established that this money was stolen byan outsider without fault onthe part ofthe district

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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 ofthe District Court and **came** into the constructive or actual possession ofthe Clerk at some time. The brief accompanying your request sets outthe 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 ofthe Trust Funds through failure or negligence ofany depository, but nothing in this Act shall release any County or District Clerk for any loss resulting from any official misconduct or negligence onhis part nor from any responsibility for’ such Trust Funds until adepository shall be selected and the funds deposited therein nor for any misappropriation of such funds byhim. Upon the deposit in the legally selected depository ofthe Trust Funds byany County ofDistrict Clerk, such Clerk shall thereafter be relieved ofthe safekeeping ofsaid funds. Article 2290, V.T. C.S. says:

The officer having custody ofany money, debt, script, instrument or writing, or other article paid or deposited in court during the progress ofany~cause to abide the result ofany legal proceeding, shall seal upin 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 ofthe court; and he shall also keep inhis office as apart ofthe records thereof a ,

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

correct itemized statement ofsuch deposit, on what account received, and the disposition made ofthe same. When his term ofoffice expires, such officer shall turn over tohis successor all ofsuch 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 onhis official bond for any neglect or other default in regard to said property. In47 TEX. JUR. 2d, Public Officers, Sec. 136, p. 175, it says:

An officer who is the custodian ofpublic money does not occupy the position ofamere bailee for hire, who is responsible only for such care ofthe money as a prudent man would take ofhis own; nor is he a “debtor” to the County within the ordinary meaning ofthe term, since ifhe were, the money would be his property and he could not be guilty ofmisapplying it as the offense is defined in the Penal Code. He is bound to account for and pay over the money tothe person entitled, less his commissions, or his sureties must pay itfor 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, 18S.W. 2d 1091 (Tex. Civ. APP. --Waco 1929), inwhich the **court** said that the Clerk ofthe 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, 98S.W. 897 (Tex. Civ. App. 1907) a suit in which the district clerk had deposited money in a safe that was supposed tobe burglar-proof. Burglars later proved thatthis was not the case and the court held the district clerk liable.

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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. 2d911(Tex. Civ. App. -- Amarillo 1972, writ ref. n.r.e.), and Co1v. Force, 50S.W. 616(Tex. Civ. App., 1899, writ ref.); Attorney General Opinion M-1198 (1972).

In our opinion the duty ofthe clerk to account for the money is absolute.. SUMMARY The duty ofthe District Clerk toaccount for child support money paid into the Registry ofthe 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 ofTexas

DAVID M. KENDALL, Chairman Opinion Committee

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