# The Attorney General of Texas
December 31, 1982 MARK WHITE Attorney General

Supreme Court Building P. 0. BOX 12546 Austin, TX. 78711. 2548 512/475-2501 Telex 9101874-1367 Telecooier 5121475-0268

1607 Main St., Suite 1400 Dallas, TX. 75201-4709 2141742.8944

4824 Alberta Ave.. Suite 160 El Paso, TX. 79905.2793 9151533.3484

1220 Dallas Ave.. Suite 202 Houston, TX. 77002.8986 713/650-0666

806 Broadway. Suite 312 Lubbock, TX. 79401.3479 806~747.5238

4309 N. Tenth, Suite S McAllen, TX. 78501-1885 5121682-4547

200 Main Plaza, Suite 400 San Antonio. TX. 782052797 5121225-4191
AnEqualOpportunityi Affirmative Action Employer HonorableBritt Plunk Hardin CountyAttorney P. 0. Box 516 Kountze,Texas 77625 opinionNO. ~~-584
Re: Duty of County Attorney to report collection and disbursement of funds collected pursuant to article 53.08 of theCode of CriminalProcedure
DearMr. Plunk:
You have requested our opinion regarding the duty of a county attorney to report the collectionand disbursementof funds collected pursuant to article 53.08 of the Code of Criminal Procedure. That statuteprovides, inpertinentpart:

(a) A county attorney...may collect a fee if his office collects and processes a check or similar sight order if the check or similar sight order: (1) has been issued or passed in a manner whichmakes the issuanceor passingan offense....

. . .. (e) Fees collectedunder thisarticle shallbe deposited in the county treasury in a special fund to be administered by the county attorney.... Expenditures from this fund shall be at the sole discretion of the attorney, and may be used only to defray the salaries and expenses of the prosecutor's office, but in no event may the county attorney... supplement his or her own salary from this fund. Nothing in this Act shall be construed to decrease the total salaries, expenses, and allowances which a prosecuting attorney's office is receiving at the time this Act takes effect.
You ask whether any of the following reporting statutes are applicableto funds collectedpursuant to article 53.08:

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,Whenever a district or county attorney has collectedmoney for the State or for any county, he shall within thirty days after receiving the same,pay it into the treasuryof the State or of the county in which it belongs, after deducting therefrom and retaining the commissions allowed him thereonby law. (Emphasisadded).
V.T.C.S. art. 335. Language in article 335 which authorized the county attorney to retain commissionswas repealedby the enactmentof provisions establishing the officers' salary fund. Tex. Const. art. XVI, 961;V.T.C.S.art. 3912k, 85.

On or before the last day of August of each year, each district or county attorney shall file in the office of the Comptrolleror of the county treasurer,as the casemay be, a sworn account of all money receivedby him by virtue of his office during the precedingyear, payable into the State or county treasury.
V.T.C.S. art. 337.

The district attorney of each district shall, at each term of the district court for each county in his district, make a report to the county clerk, of all moneys received by him since the last term of the district court for such county for the use of such county. Each county attorney shall make a similar report to the said clerk at the end of eachmonth. (Emphasisadded).
V.T.C.S. art. 1620.

Each district, county and precinct officer shall keep a correct statementof all fees earned by him and all sums coming into his hands as deposits for costs, togetherwith all trust funds placed in the registry of the court, fees of officeand commissionsin a book or inbooks tobe provided him for that purpose, in which the officer, at the time when such deposits are made or such fees and commissions are earned and when any or all of such funds shall come into his hands, shall enter the same; and it shall be the duty of the county auditor in counties having a county auditor to annually examine the books and accounts of such officers and to report his findings to the next succeeding grand jury or

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district court. In counties having no county auditor, it shall be the duty of the Commissioners' Court to make the examination of said books and accounts or have the samemade and to make report to the grand jury as hereinabove provided. (Emphasisadded).
V.T.C.S. art. 3896.

All officers charged by law with collecting money in the name or for the use of the State shall report in writing under oath to the respective district courts of their several counties, on the first day of each term, the amounts of money that have come to their hands since the last term of their respective courts aforesaid. CodeCrim. Proc. art. 1001. Article 337 is clearly applicable to the funds about which you inquire: they constitute "money receivedby [the county attorney]by virtue of his office [and]payable into the State or county treasury." They also constitute "fees earnedby" the countyattorney forpurposes of article 3896. Articles 335 and 1620, as well as article 1001 of the Code of Criminal Procedure,are applicable if article 53.08 funds are collected "for the State or for any county," (article 335), "for the use of such county," (article 1620), or "in the name or for the use of the State," (article1001).
In Attorney General Opinion MW-188 (1980).we said that article 1656a. V.T.C.S., which authorizes a county auditor to prescribe accountingprocedures, is applicable to funds collectedunder article 53.08. The opinion emphasized the fact that article 53.08 accords to the prosecuting attorney "a limited statutorydiscretion to determine thepurpose forwhich expendituresfrom the fund are to be made." It does remove these funds from the statutory reach of the county auditor. Likewise, we believe that, although article 53.08 permits a countyattorney to determine,within certain limitations,thepurposes for which the funds may be expended, it does not convert them into non-public funds. Indeed, the statute specifiesthat the fundsmay be used "only to defray the salaries and expenses of the prosecutor's office," inarguably a public purpose. Cf. Attorney General Opinion MW-439 (1982). Funds collectedby a publicagency and used forpublic purposes are clearlypublic funds. See Texas PharmaceuticalAss'n v. Dooley, 90 S.W.2d 328 (Tex. Civ. App. - Austin 1936, no writ). We conclude that such funds are collected for the use of the state and

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county, and as a result, that articles 335, 1620, and 1001 are applicablethereto. Thus, a county attorney is requiredto report the collectionand disbursementof all funds collectedpursuant to article 53.08 of the Code of Criminal Procedure, in accordance with the directives of articles 335, 337, 1620 and 3896,V.T.C.S., and article 1001of the Code of CriminalProcedure.
SUMMARY
A county attorney is required to report the collectionand disbursementof all funds collected pursuant to article 53.08 of the Code of Criminal Procedure, in accordance with the directives of articles 335, 337, 1620 and 3896, V.T.C.S., and article 1001of the Code of CriminalProcedure.

MARK WHITE AttorneyGeneralof Texas JOHNW. FAINTER,JR. FirstAssistantAttorneyGeneral
RICHARD E. GRAY III ExecutiveAssistantAttorneyGeneral Preparedby Rick Gilpin AssistantAttorneyGeneral
APPROVED: OPINION COMMITTEE
SusanL. Garrison,Chairman Jon Bible Rick Gilpin DavidHarris JimMoellinger BruceYoungblood

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