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 

An Equal Opportunityi 

Affirmative Action Employer 

Honorable Britt Plunk 

Hardin County Attorney 

P. 0. Box 516 

Kountze, Texas 77625 

opinion NO. ~~-584 

Re: Duty of County Attorney 

to report collection and disbursement of funds collected 

pursuant to article 53.08 of 

the Code of Criminal Procedure 

Dear Mr. Plunk: 

You have requested our opinion regarding the duty of a county 

attorney to report the collection and disbursement of funds collected 

pursuant to article 53.08 of the Code of Criminal Procedure. That 

statute provides, in pertinent part: 

(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 

which makes the issuance or passing an offense.... 

. . . . 

(e) Fees collected under this article shall be 

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 

applicable to funds collected pursuant to article 53.08: 

p. 2168 
Honorable Britt Plunk - Page 2 (m-584) 

,Whenever a district or county attorney has 

collected money for the State or for any county, 

he shall within thirty days after receiving the 

same, pay it into the treasury of the State or of 

the county in which it belongs, after deducting 

therefrom and retaining the commissions allowed 

him thereon by law. (Emphasis added). 

V.T.C.S. art. 335. Language in article 335 which authorized the 

county attorney to retain commissions was repealed by the enactment of 

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 Comptroller or of the county 

treasurer, as the case may be, a sworn account of 

all money received by him by virtue of his office 

during the preceding year, 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 each month. (Emphasis added). 

V.T.C.S. art. 1620. 

Each district, county and precinct officer 

shall keep a correct statement of all fees earned 

by him and all sums coming into his hands as 

deposits for costs, together with all trust funds 

placed in the registry of the court, fees of 

office and commissions in a book or in books to be 

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 

p. 2169 
. . 

Honorable Britt Plunk - Page 3 (MW-584) 

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 same made and 

to make report to the grand jury as hereinabove 

provided. (Emphasis added). 

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. 

Code Crim. Proc. art. 1001. 

Article 337 is clearly applicable to the funds about which you 

inquire: they constitute "money received by [the county attorney] by 

virtue of his office [and] payable into the State or county treasury." 

They also constitute "fees earned by" the county attorney for purposes 

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," (article 1001). 

In Attorney General Opinion MW-188 (1980). we said that article 

1656a. V.T.C.S., which authorizes a county auditor to prescribe 

accounting procedures, is applicable to funds collected under article 

53.08. The opinion emphasized the fact that article 53.08 accords to 

the prosecuting attorney "a limited statutory discretion to determine 

the purpose for which expenditures from 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 

county attorney to determine, within certain limitations, the purposes 

for which the funds may be expended, it does not convert them into 

non-public funds. Indeed, the statute specifies that the funds may 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 collected by a publicagency and used for public 

purposes are clearly public funds. See Texas Pharmaceutical Ass'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 

p. 2170 
Honorable Britt Plunk - Page 4 (m-584) 

county, and as a result, that articles 335, 1620, and 1001 are 

applicable thereto. Thus, a county attorney is required to report the 

collection and disbursement of 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 

1001 of the Code of Criminal Procedure. 

SUMMARY 

A county attorney is required to report the 

collection and disbursement of 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 1001 of the Code of Criminal Procedure. 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

David Harris 

Jim Moellinger 

Bruce Youngblood 

p. 2171