Ronorable ErwinW. Barton OpinionNo. ~~-585 Chairman Human ServicesCommittee Re: Whether the countyauditor or Texas House of Representatives the county treasurer is the county P. 0. Box 2910 payroll disbursing officer for, Austin, Texas 78769 purposes of Title llOB, V.T.C.S., governingpublic retirement systems Dear RepresentativeBarton:

- Title 1lOB. V.T.C.S., contains those statutes governing the

creation and operation of the Employees Retirement System of Texas, the TeacherRetirement Systemof Texas, the JudicialRetirement System of Texas, the Texas Count:{and District Retirement System, and the TexasMunicipalRetirement System. The various statutes governing the several systemsprovide that a payroll disbursing officer or employee for each employer collects member contributions by deducting such contributions from the compensation of each member that it employs. V.T.C.S. Title llOB, P525.402, 35.403, 55.403, 65.402. You wish to know whether, in counties of 10,000 or more population, the county auditor or the county trez.surer(in those counties which still have such officers) .isthe county payroll disbursing officer for purposes of section 55.403 of Title 1lOB.V.T.C.S. We conclude that the proper officer is the county treasurer. We do not address the issue as to who is the proper disbursing officer or employee in those counties in which the office of county treasurerhas been abolished. Section 55.403(e) of Title IlOB, V.T.C.S., provides the following:

The treasurer or+sbursing officer of each participatingsubdivisionshall: (1) make deductions from each member's compensation for contributions to the retirement system; (2) transmitmonthly, or at the timedesignated by the board of trustees, the payroll and other pertinent informationprescribedby theboard; and

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(3) pay the deductions to the board of trustees at the board's home office. (Emphasis added).
We are required to construe section 55.403(e) in a way that

expresses only the will of themakers of the law, not forced nor st.cained,but simply such as the words of the law in their plain sense fairly sanctionandwill clearly sustain. Railroad Commission of Texas v. Miller, 434 S.W.2d 670, 672 (Tex. 1968). The very terms of ?he statute itself reposes the responsibility for making .employee.payrolldeductions in-the treasure;, not the auditor; Texas law clearlymakes the treasurer, not the auditor, the county disbursingoffic,x. Article XVI, section 44, of the Texas Constitution provides, inter alla, that the legi$,latureshall prescribe the duties of the office of county treasurer. Article 1709, V.T.C.S., sets forth the duties of the county treasurer and provides in pertinentpart that



### [tlh= County Trwsurer, as chief custodian of county finance, iwll receive all moneys belonging to the county fz,omwhatever source they may be derived: keep anC1account for the same in a designateddepository or depositories;and pay and apply or disburse the same, in suchmanner as the Commissioners C&t may require or direct, not inconsistent with constituted law. (Emphasis added). Article 1709a,V.T.C.S.,pr#rlidingspecificallyfor the receipt, keeping and disbursement of county funds, sets forth at section folliiwing

in pertinentpart: safe4 the

From and after the effective date of this Act the County Treasurer & each county shall disbursea moneys belonging to the county, for whatever purpose they may-be claimed, and shall pay and apply the same ,u?required by law. No moneys shall be expend=7 or withdrawn from the county treasuryexceptb:rchecks orwarrants drawn on the county treasury, whether such moneys are in a county depositor:ras required by law or not. (Emphasisadded). V.T.C.S. art. 1709a, 94.

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Article 1651, V.T.C.S., sets forth the duties of the county auditor and provides that

[t]he Auditor sh,l:Ll have a general oversight of all the books and records of all the officers of the county, district or state, who Mayo be authorized or required by law to receive or collect any~money, funds, fees, or other property for theuse of, or belonging to, the county. . . . See alsoV.T.C.S. arts. 1653, 1709a. The word "disburse"gen'erally denotes "pay" or "expend."Woodford v. United States, 77 F.2d 861, 865 (8thCir. 1935);Wall v. Close, 14 So.2d 19, 36 (La. 1943);see also Peoplev. Battin, 143Cal. Rptr. 731 --- (Cal. Ct. App. 1978);Browx v. Honiss, 68 A. 150 (N.J. 1907). It is -- clear from an even cursory reading of section 55.403 of Title 1lOB; V.T.C.S., that the county treasurer is the proper officer to deduct member contributionsbecause he is the officerwhose responsibilityit is to "disburse" county funds. This conclusion is consistent with earlier attorney general o:?inionsthat discuss the-various responsibilities of the county treasurerand the county auditor.
In Attorney General O~~inion V-1387 (1952), this office was asked whether a commissionerscour't could require a county auditor to handle payroll deductions, accounts, and reports regarding social security for county employees. The opinionheld that

[u]nderthe above authoritiesand articles [setting forth the duties of the county treasurer and the county auditor] we agree with you that it is the duty of the coun:y treasurer to assess the amount of the contribui:ionsnecessary from the various county employees, to collect this amount, and to transmit same to the state agency. We further agree that under article 1651, V.C.S., the county auditor is required to check, compare, and audit the social secweity services of the county treasurer,and to certify the results to the proper officials.
In Attorney General Opinion V-711 (1948), this office was asked whether the county auditor,pursuant to the duties imposedby article 1656a. V.T.C.S., had tht! authority to deduct employees' soup insurance premiums from enployees' salaries when so authorized by employees. Citing the above statute setting forth the duties of the county auditor, this office 'heldthat

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[i]nview of the foregoing provision,neither the collection nor the deduction of the contributions from the salaries of the county employees constitutes any functimi of the County Auditor.
. . . The collection and deduction should be performed by the proper couxty officerwho issues the checks on the County Tr,easurerfor the payment of the salaries of the employees included in the group insuranceplan.

. See alsoAttorney General 0p:Lnion WW-1107 (1961). Accordingly, we conclude that the proper county payroll disbursing officer for purpos'zsof Title IlOB, V.T.C.S., is the county treasurerrather than the cxmty auditor. SUMMARY
In counties with a population of 10,000 inhabitants or rare, the proper county payroll disbursing officer for purposes of Title llOB, V.T.C.S., is the county treasurer rather than the county auditor. Very 

# J trulyyours

& JIM MATTOX Attorney General of Texas JACK HIGBTOWER First AssistantAttorney General
MARY KELLER ExecutiveAssistantAttorney General RICK GILPIN Chairman,Opinion Committee Preparedby JimMoellinger AssistantAttorney General

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