December 18, 1990

Honorable Tom O'Connell OpinionNo. JM-1263 Criminal DistrictAttorney Collin County Courthouse Re: Authority of a county McKinney, Texas 75069 auditor to prescribe the use of a county's federal employer identificationnumber on all departmental depository bank accounts (RQ-2034) Dear Mr. O'Connell:

you ask whether, pursuant to section 112.001 of the Local GovernmentCode, the county auditor may require the
use of the county's federalemployer identification number
on the accountsof the county tax assessor-collector in the county depository, to the exclusion of other employer identificationnumbers thatmay have been assigned to /a county office.1 We conclude that the county auditor may impose such a requirement pursuant to section 112.001, but only with respect to accounts that contain county funds.

We are advised that this question is prompted by an apparent disagreement between the county auditor and the county tax assessor-collector concerning the appropriate employer identificationnumber for the accounts of the tax assessor-collector'soffice. On May 8, 1990, the auditor adopted a regulationgoverning the styling of depository accounts. It requires the use of the county's federal employer identification number on all such accounts and prohibits the use of other employer identification numbers. Previously,the county tax assessor-collectorhad applied for and receiveda separate employer identification number from the InternalRevenue Service. Much of the dispute

1. The federalemployer identificationnumber is the taxpayer identification number of an individual or other person (whether or not an employer) assignedpursuant to title 26 of the United States Code section 6011(b) (providing for the identification of taxpayers by the secretaryof the treasury) or section 6109 (authorizing the secretaryto require the use of assigned identification numbers). 26 C.F.R. 9 301.7701-12.

‘-.”c

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appears to center on whether the tax assessor-collector was entitled to receive a separate employer identification number. That is a matter within the jurisdiction of the InternalRevenue Service, but we can ascertainthe authority of the county auditor to adopt the regulation in question pursuant to section 112.001 of the LocalGovernment Code. Furthermore, since there is disagreementbetween the county auditor and the county tax assessor-collector over the statutory duties of each office, we will respond accordingly.

Section 112.001 of the Local GovernmentCode provides the following:

In a county with a population of less than 190,000, the county auditormay adopt and enforce regulations, not inconsistent with law or with a rule adopted under Section 112.003,that the auditor considersnecessary for the speedy and proper collecting, checking, and accounting of the other funds and fe s that

(Emphasisaided.) me be countv.

The authoritygranted under this provisionplainly extends only over funds that "belong to the county." Section 112.001 is derived from article 1656, V.T.C.S., :and is identical in substance to article 1656 as it was first enacted in 1905. m Acts 1905, 29thLeg., ch. 161, at 381.2

2. In contrast, a county auditor in a county with a population of 190,000 or more may adopt and enforce regulations for the speedy and proper collecting,checking, and accounting of

the revenues and other funds and fees that belong to the county or to a person for whom

a..

. county officer

. . . has made a collection or for whose use orbenefit the officer holds or has received funds.

Local Gov't Code 9 112.002(b).

Section 112.002 is the descendantof article 1656a, first enacted in 1933. Acts 1933, 43rd Leg., ch. 98, at 217. It, too, reflects the substance of the predecessor statute. In
an opinion considering the practice of certain county (FootnoteContinued) 

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P. 6749HonorableTel O*Connell - Page 3 (~14-1263)

The county auditor's power to prescribe accounting regulationsunder section 112.001 should alsobe contrasted with the audit authority of the county auditor. Section 115.001 of the Local Government Code gives the auditor Vontinual access' to the "books, accounts,reports, vouchers, and other records of any officer." He is required to examine and investigate the correctness of these **records.** Under section 115.002(b),the auditor is requiredto check the books and examine the reports of all county officers, including the tax assessor-collector. Section 115.0035 of the code, enacted in 1989, authorizes the county auditor to examine and verify the correctness of the accounts of all precinct, county, and district officials. nAccounts" is defined as "allpublic funds that are subjectto the control of any precinct, county or district official," including funds of law enforcement agencies and attorneys for the state composed of seized and forfeited property. These provisions do not distinguishbetween recordsconcerning the collection of county funds and non-county funds. CornDare Local Gov't Code 5 115.002(a) (auditorshall examine and report on all reportsmade to the commissionerscourt "that
are about the collectionofmoney **for** the county")with ia. 9 115.901 (auditor shall examine accounts, dockets, and records of county tax assessor-collector,among others, to determinewhether money "belonging to the county and in possession of the officer"has not been accounted for and paid over as requiredby law). Thus, the county auditor's power to audit the accounts of county officers is broader than his power to adopt and enforce regulations under section 112.001.

Consequently, in order to determine thevalidity of a regulationadopted by the county auditor under section

(FootnoteContinued) officers of accepting reimbursements fordishonored checks
on behalf of the recipients of the checks, this office stated broadly that a county auditor could, pursuant to article 1656a, adopt and enforce regulations for the collecting, checking, and accounting of fundsnotbelonging to the countybut collectedby a county officer in an official capacity or under color of authority. Attorney General Opinion C-277 (1964); see also Attorney General Opinion WW-86 (1957) (pursuant to article 1656a, county auditor could require chief probation officer of Dallas County to deposit with county treasurermoney collected for child support in divorce cases). Neither section 112.001nor its predecessor, article 1656, provide an equivalent extension of the county auditor'sauthority.Honorable TOB O*Connell - Page 4 (JM-1263)

112.001, it is necessary to firstdetermine whether the funds to which the regulation relates comprise county funds. In the case of the county tax assessor-collector,there are a number **of** instances inwhich fundscollectedby the office and deposited in the countydepositorymay not be characterized as county funds.

The basic duties **of** the county tax assessor-collector
are prescribed **by** title 1 of the Tax Code, designated the Property Tax Code.3 He is responsible primarily for the assessment and collectionof countyproperty taxes,but may have the duty of performing these functions ~for another taxing unit.

Various lawsgovern the deposit of taxes collected **by** the county tax assessor-collectorfor other taxing units. Se

.e.u. Local Gov*t Code 9 116.113(b);Tax Code 31.10(d). Thz follo&ingdiscussion ismerely illustrative**of** the funds involved. It does not purport to be exhaustive, but is intendedto assistyou in determiningwhether the auditor's regulation is applicableto particular funds.

When the county tax assessor-collectorcollects taxes
on behalf of other taxing units, he acts as the agent of the other taxing unit. Standlev, 280 S.W.2d%S A 1($ex. de

.

1955); Attorney General OpinionM-859 (1971). With rare exceptions,the collection of fundsby an agenton behalf of his principaldoes not diminish the title of the principal in suchproperty. -3 Am. Jur. 2d,Agency 5 222-224 (1986). Therefore,we do not believe themonies collectedby the county tax assessor-collector on behalf of other taxing units and placed in the county depositorycanbe characterizedas county funds subject to the county auditor's authorityunder section 112.001 of the LocalGovernment **Code.**

The county tax assessor-collectoris entitledby law to
a reasonable fee,not to exceed actual costs, for collecting taxes for another taxing unit pursuant to section 4;&(;~6::;,p) (21, **or (4**  **(!I -**  Tax Code 5 6.27(b). The

arenot retained by the tax assessor-collector,butmust be paid into the county treasury. Tex. Const. .art. XVI, 5 61; Attorney General Opinion U-624 (1970). They are appropriately characterized as county

3. A comprehensivediscussion of the powers and duties of the county tax assessor-collector appears in 35 D. Brooks, County and Special District Law ch. 13 (Texas Practice 1989).Honorable Tom O*Connell - Page 5 (JM-1263)

funds, and thus are subject to the auditor'spower to adopt regulations under section 112.001.

The county tax assessor-collector is also designated the agent of the state Department **of** Highways and public Transportation for the registrationof motor vehicles and the collection of motor vehicle fees. m V.T.C.S. art. 6675a-2 et seq. He is required to deposit a portion of the motor vehicle registrationfees collectedby his office in the county depositoryto the credit of the county road and bridge fund. The sum of the deposit is determinedby a formula that specifiesthemaximum amount of fees a county may retain before remitting the balance to the Department of Highways and Public Transportation. V.T.C.S. art. 6675a-10(a), (b).

The commissionerscourtmay impose an optional registration fee of either five or ten dollars (dependingon the population of the county) on each vehicle registered in the county, unless thevehicle is exempted from the payment of registration fees. V.T.C.S. art. 6675a-9a. The county tax assessor-collectormust deposit 97 percent of the optional county registration fee in the county depository to the credit of the roadand bridge fund; the remainder is remitted to the Departmentof Highways and PublicTransportation. V.T.C.S. art. 6675a-lO(c-2).

The county tax assessor-collectormay defer remittance of certain motor vehicle registration feesand deposit them in an interestbearingaccount or certificate in the county depository. V.T.C.S.art. 6675a-10(d). The county owns all interest earned on fees so deposited, and such interest is credited to the road and bridge fund. V.T.C.S. art. 6675a-10(f). We think there can be no doubt that all funds credited to the road and bridge fundpursuant to these provisions wbelongw to the county within the Brt;pg of section 112.001of the Local Government Code. same token, funds collectedon behalf of and remitted to the state under theseprovisions are not county funds subject to the county auditor'sauthorityunder section 112.001.

Furthermore,the County Road and BridgeAct entitles the county tax assessor-collector to deduct as a fee of office $1.50 from each motor vehicle registration and collect $1.00 as a service charge for registrationsthat are mailed or delivered by electronic means. V.T.C.S. art. 6702-1, 5 4.202(a), (b), (c); see also Local Gov't Code 0 118.171 (feefor returned checks). These amounts belong to the county forpurposes of,section 112.001.

c-c, ;. -.--Honorable Tom O'Connell - Page 6 (JM-1263)

The same reasoning applies to fees the county tax assessor-collector receives **for** collectingvarious fees and taxes imposedpursuant to the followingprovisions:

(1) Tax Code f2 152.021 - 152.026 (taxes imposedon transfers of title andmotor vehicle rentals), 152.041 (duty **of** county tax assessor-collector),152.121 (taxassessor-collector shall retain fivepercent of taxes and penalties collected under ch. 152 as fees of office or fees to be paid intoofficers salary fund):

(2) V.T.C.S. art. 6687-l (Certificate of TitleAct), 5 57 (tax assessor-collector shall turn over $5 of each $10 fee collected to county treasurer for deposit in officers salary fund, and either remit remaining $5 to Department of Highways and Public Transportation
or defer remittance and deposit or investas authorized in this section, with accrued interestbelongingto the county):

(3) Parks &Wildlife Code 50 31.0341 (tax assessor-collector shall retain ten percent of fee collected for issuance of certificates of number for motorboats), 31.048 (samewith respect to certificates of title for motorboats and outboardmotors, or fornotationof security interest, lien or otherencumbrance).
Accordingly,you are advised that the county auditor may prescribe a rule requiring the use of the county's employer identificationnumber on all accountsin the county depository pursuant to the authority conferredby section 112.001 of the Local Government Code, but onlywith respect to accounts that represent fundsbelonging to the county.

SUMMARY

A county auditor in a county vith a population of less than 190,000 may adopt and enforce a regulation pursuant to section 112.001of the Local Government Code that requires the use of the county's federal employer identification number on allHonorableTom O'Connell - Page 7 (JM-1263)

accounts in the county depository that contain funds belongingto the county.

JIM UATTOX Attorney General of Texas

MARY KELLER FirstAssistantAttorney General

LOU MCCREARY ExecutiveAssistant Attorney General

JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorney General

RENEA HICKS SpecialAssistantAttorney General

RICK GILPIN Chairman,Opinion Committee
Preparedby Steve Aragon AssistantAttorney General