December 18, 1990 

Honorable Tom O'Connell Opinion No. JM-1263 

Criminal District Attorney 

Collin County Courthouse Re: Authority of a county 

McKinney, Texas 75069 auditor to prescribe the use 

of a county's federal employer 

identification number on all 

departmental depository bank 

accounts (RQ-2034) 

Dear Mr. O'Connell: 

you ask whether, pursuant to section 112.001 of the 

Local Government Code, the county auditor may require the 

use of the county's federal employer identification number 

on the accounts of the county tax assessor-collector in the 

county depository, to the exclusion of other employer 

identification numbers that may 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 identification number for the accounts of the tax 

assessor-collector's office. On May 8, 1990, the auditor 

adopted a regulation governing 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-collector had applied 

for and received a separate employer identification number 

from the Internal Revenue Service. Much of the dispute 

1. The federal employer identification number is the 

taxpayer identification number of an individual or other 

person (whether or not an employer) assigned pursuant to 

title 26 of the United States Code section 6011(b) 

(providing for the identification of taxpayers by the 

secretary of the treasury) or section 6109 (authorizing the 

secretary to require the use of assigned identification 

numbers). 26 C.F.R. 9 301.7701-12. 

‘-.” 
c 

Honorable Tom O'Connell - Page 2 (JR-1263) 

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 

Internal Revenue Service, but we can ascertain the authority 

of the county auditor to adopt the regulation in question 

pursuant to section 112.001 of the Local Government Code. 

Furthermore, since there is disagreement between 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 Government Code provides 

the following: 

In a county with a population of less than 

190,000, the county auditor may adopt and 

enforce regulations, not inconsistent with 

law or with a rule adopted under Section 

112.003, that the auditor considers necessary 

for the speedy and proper collecting, 

checking, and accounting of the 

other funds and fe s that 

(Emphasis aided.) 

be me 

countv. 

The authority granted under this provision plainly 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, 29th Leg., 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 or benefit the 

officer holds or has received funds. 

Local Gov't Code 9 112.002(b). 

Section 112.002 is the descendant of 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 

(Footnote Continued) 

! 

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

The county auditor's power to prescribe accounting 

regulations under section 112.001 should also be 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 required to 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 "all public funds that are subject to 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 distinguish between records concerning the 

collection of county funds and non-county funds. CornDare 

Local Gov't Code 5 115.002(a) (auditor shall examine and 

report on all reports made to the commissioners court "that 

are about the collection of money for the county") with ia. 

9 115.901 (auditor shall examine accounts, dockets, and 

records of county tax assessor-collector, among others, to 

determine whether money "belonging to the county and in 

possession of the officer" has not been accounted for and 

paid over as required by 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 the validity of a 

regulation adopted by the county auditor under section 

(Footnote Continued) 

officers of accepting reimbursements for dishonored 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 funds not belonging to 

the county but collected by 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 treasurer money collected for child 

support in divorce cases). Neither section 112.001 nor its 

predecessor, article 1656, provide an equivalent extension 

of the county auditor's authority. 
Honorable TOB O*Connell - Page 4 (JM-1263) 

112.001, it is necessary to first determine 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 in which funds collected by the office 

and deposited in the county depository may 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 collection of county property taxes, but may 

have the duty of performing these functions ~for another 

taxing unit. 

Various laws govern the deposit of taxes collected by 

the county tax assessor-collector for other taxing units. 

Se . e.u. Local Gov*t Code 9 116.113(b); Tax Code 31.10(d). 

Thz follo&ing discussion is merely illustrative of the funds 

involved. It does not purport to be exhaustive, but is 

intended to assist you in determining whether the auditor's 

regulation is applicable to particular funds. 

When the county tax assessor-collector collects 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 

Opinion M-859 (1971). With rare exceptions, the collection 

of funds by an agent on behalf of his principal does not 

diminish the title of the principal in such property. -3 

Am. Jur. 2d, Agency 5 222-224 (1986). Therefore, we do not 

believe the monies collected by the county tax assessor-collector on behalf of other taxing units and placed in the 

county depository can be characterized as county funds subject to the county auditor's authority under section 112.001 

of the Local Government Code. 

The county tax assessor-collector is entitled by 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 

are not retained by the tax assessor-collector, but must 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 comprehensive discussion 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's power 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 registration of 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 registration fees collected by his office in 

the county depository to the credit of the county road and 

bridge fund. The sum of the deposit is determined by a formula that specifies the maximum 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 commissioners court may impose an optional registration fee of either five or ten dollars (depending on the 

population of the county) on each vehicle registered in the 

county, unless the vehicle is exempted from the payment of 

registration fees. V.T.C.S. art. 6675a-9a. The county tax 

assessor-collector must deposit 97 percent of the optional 

county registration fee in the county depository to the 

credit of the road and bridge fund; the remainder is remitted to the Department of Highways and Public Transportation. 

V.T.C.S. art. 6675a-lO(c-2). 

The county tax assessor-collector may defer remittance 

of certain motor vehicle registration fees and deposit them 

in an interest bearing account 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 fund pursuant to these 

provisions wbelongw to the county within the Brt;pg of 

section 112.001 of the Local Government Code. same 

token, funds collected on behalf of and remitted to the 

state under these provisions are not county funds subject to 

the county auditor's authority under section 112.001. 

Furthermore, the County Road and Bridge Act 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 registrations that 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 (fee for returned checks). These amounts belong 

to the county for purposes 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 collecting various fees and 

taxes imposed pursuant to the following provisions: 

(1) Tax Code f2 152.021 - 152.026 (taxes 

imposed on transfers of title and motor 

vehicle rentals), 152.041 (duty of 

county tax assessor-collector), 152.121 

(tax assessor-collector shall retain 

five percent of taxes and penalties 

collected under ch. 152 as fees of 

office or fees to be paid into officers 

salary fund): 

(2) V.T.C.S. art. 6687-l (Certificate of 

Title Act), 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 

invest as authorized in this section, 

with accrued interest belonging to 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 (same with respect to 

certificates of title for motorboats 

and outboard motors, or for notation of 

security interest, lien or other encumbrance). 

Accordingly, you are advised that the county auditor 

may prescribe a rule requiring the use of the county's 

employer identification number on all accounts in the county 

depository pursuant to the authority conferred by section 

112.001 of the Local Government Code, but only with respect 

to accounts that represent funds belonging 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 

112.001 of the Local Government Code that 

requires the use of the county's federal 

employer identification number on all 
Honorable Tom O'Connell - Page 7 (JM-1263) 

accounts in the county depository that 

contain funds belonging to the county. 

JIM UATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Steve Aragon 

Assistant Attorney General