AWEWIN. TEXAR W3Tll 

December 18, 1973 

The Honorable George N. Rodriguez, Jr. 

County Attorney, El Paso County 

Room 201, City-County Building 

El Paso, Texas 79901 

Opinion No. H- 183 

Re: The duties of the county 

auditor 

Dear Mr. Rodriguez: 

You have asked our opinion on five queations which relate generally 

to the duties and responsibilities of the County Auditor. Your first question 

is: 

“Does the County Auditor still have discretionary 

authority to prescribe deposit and disbursing procedures 

for all County monies to be placed in a County depository 

under Article 1656a as stated in Attorney General’s 

Opinion No. WW-86 of April 5, 19577 ” 

Article 1656a, Vernon’s Texas Civil Statutes, as originally enacted 

by Acts of the 43rd Legislature, Regular Session, Chapter 98, p. 217, provided in part: 

“The County Auditor in counties having a population 

of one hundred ninety thousand (190,000) or more according to the last preceding or any future Federal Census shall 

prescribe the system of accounting for the county. . . , 

Should the County Auditor deem it to be to the best interest 

of the county or deem it necessary in order that the provisions of this law may be better enforced. . . , he shall have 

the right to prescribe that all of the fees and moneys herein 

referred to shall be turned over to the County Treasurer by 

such officer as collected, and such money shall be deposited 

in the county depository in a special fund to the credit of such 

officer and draw interest for the benefit of the county, . . . . ” 

p. 843 
The Honorable George N. Rodriguez, page 2 (H-183) 

Article 1656a was amended by the Acts of the 44th Legislature, 

Regular Session, Chapter 122, p. 330, to read in part: 

“All of the fees, commissions, funds, and moneys 

herein referred to shall be turned over to the County 

Treasurer by such officer as collected, and such money 

shall be deposited in the county depository. . . . ” 

Attorney General Opinion WW-86 (1957) held that the provisions of 

the amendatory act limiting the county auditor’s discretion regarding the 

deposit of funds in the county treasury were void as they ware outside the 

scope of the bill’s caption. See Texas Constitution, Article 3, $ 35. We 

have found no cases or subsequent opinions reaching a contrary result. 

Article 1709a, V. T. C. S., enacted in 1971, refers to the duties of 

the county auditor under Article 1656a. Section 2(a) of Article 1709a provides in part: 

“All fees, commissions, funds and moneys 

belonging to the county shall be turned over to the 

County Treasurer by the officer who collected them, 

in the manner prescribed in Chapter 98, Acts of the 

43rd Legislature, 1933, as amended (Article 1656a, 

Vernon’s Texas Civil Statutes). ” 

Section 5 of Article 1709a provides: 

“All existing laws pertaining to the duties and 

responsibilities of the County Auditors of the State 

of Texas shall in no way be affected or changed by this 

law. Reference to various articles mentioned herein 

pertaining to CounlyAuditors is intended for the purpose of clarification only and for no other reason. ” 

Although $ Z(a), standing alone, arguably could support a contention 

that the amendment to the original Article 1656a was incorporated by reference in Article 1709a, 5 5 dispels such a notion. It is our conclusion that 

the county auditor in the counties affected by Article 1656a has some discrep. 844 
The Honorable George N. Rodriguez, page 3 (H-183) 

tionary authority in prescribing procedures for the deposit of money in’ 

the county depository. His discretion is, of course, limited by the Constitution and other statutes, e.g., Articles 1656~ and 1657, V. T. C. S. 

Your second question is: 

“Is it necessary for the Tax Assessor-Collector, 

Sheriff, District Clerk, County Clerk, ‘who collect 

monies in their official capacities to secure a Deposit 

Warrant in accordance with Article 1657 and daily turn 

over such monies to the County Treasurer to physically 

deposit such sums in a County Depository in an account 

labeled in the office holder’s name? ” 

Attorney General Opinion M-167 (1967) involved the deposit of funds 

by the County Tax Assessor-Collector. It indicated that: 

“[I]t is apparent from reading all of these statutes, 

[Articles 7295, 7249a, 2549 and 25541 which are in para 

materia, that the Legislature intended that tax collections 

be placed on deposit at least on a weekly basis to be available for the County Treasurer to pay such bills as may be 

presented. Both the county depository and the tax collector 

[are] required to make monthly reports to the Commissioners 

Court. The language in Art. 2549 can only be reasonably construed as meaning as soon as possible and not less than weekly, 

and in contemplation of the tax collector’s monthly report. ” 

On Monday of each week the tax assessor-collector must transfer 90 per cent 

of all county tax funds collected during the previous week to the account of the 

County Treasurer. He can be required to deposit funds to the treasurer on a 

more frequent basis by the order of the commissioners court, Article 7295, 

V. T. C. S., the county judge, ibid., or the county auditor. Article 1656a, V.T.CX 

The sheriff, district clerk and county clerk must deposit funds under 

procedures established by the county auditor. Article 165~6a, V. T. C. S. They 

also are required to transfer county funds in their possession to the account of 

p. 845 
The Honorable George N. Rodriguez, page 4 (H-183) 

the county treasurer as directed by the county judge or commissioners 

court. Article 7295, V. T. C. S. Trust funds and cash bail bonds receive 

different treatment and are discussed in relation to your third and fifth 

questions. 

When funds are transferred to the account of the county treasurer, 

the deposit must be on a deposit warrant. Article 1657, V. T. C. S. If 

the officer deposits money in the county depository before transferring the 

county funds to the county treasurer, e. g., Article 7250, V. T. C. S., the 

requirements of Article 1657 do not apply to the initial deposit. It will be 

necessary to comply with the article when funds are transferred to the 

treasurer’s account. 

Your third question is: 

“What is the definition of a ‘Trust Fund’ as mentioned in Article 2558A? Are such collections as ‘Civil 

Court Deposits’, Probate Court Deposits and ‘Court 

Ordered Child Support payments’ defined as a ‘Trust 

fund’? If such collections are not Trust Funds as prescribed in Article 2558A, is it mandatory that the County 

Auditor countersign Warrants or checks disbursing these 

funds to their legal owners? ” 

A trust is an equitable obligation under which the trustee is required 

to deal with the trust property for the benefit of the beneficiaries who have 

a vested interest in the trust funds. 57 Tex. Jur. 2d Trusts 5 1 (1964). Any 

funds fitting this definition are trust funds and, if in the possession of the 

county or district clerk, may be deposited in the county depository for trust 

funds. 

Article 2558a, V. T. C. S., is the statute which deals generally with county 

depositories for trust funds. Portions of Article 2558a are unconstitutional. 

Sellers v. Harris County, 483 S. W. 2d 242 (Tex. 1972); however, only sections 

4a and 4b, which are not in issue in this opinion, were affected by the Sellers 

decision. Attorney General Opinion M-1198 (1972). 

Section 4 of that statute provides in part: 

p. 846 
The Honorable George N. Rodriguez, page 5 (H-183) 

“As soon as said depository has qualified as 

provided by law and has been approved by the Commissioners Court, said Court shall make and enter an 

order upon the minutes, designating such banking corporation, association, or individual banker as County 

Depository for Trust Funds until the designation and 

qualification of a successor, and thereupon it shall be 

the duty of the County and Districts Clerks of such 

county to deposit all Trust Funds in their possession 

with said depository in the manner hereinafter provided 

1, 

. . . . 

Section 11 provides: 

“Any County or District Clerk having the custody 

by law of any money that may have been deposited in 

court to abide the result of any legal proceeding, which 

amount is to be in his possession for ,a period longer than 

three (3) days, shall deposit the same in the county depository for Trust Funds, if there be such a depository. The 

funds deposited by the Clerk shall be carried as a Trust 

Fund account in the name of the Clerk making the deposit, 

and same shall be subject to withdrawal by the Clerk under 

the conditions set out in the succeeding,paragraph of this 

Act. ” 

Article 2558a applies only to those trust funds in the possession of the 

district or county clerk. Money which is held by other officers, even though 

the money constitutes a trust fund, is not within the purview of this article; 

however, insofar as county and district clerks are concerned, the Act applies 

to all trust funds in their possession. It is our conclusion that $4 requires 

county and district clerks to deposit all trust funds in their possession, except 

as provided in $11, in the County Depository for Trust Funds. 

Section 11 requires the deposit of money “deposited in court to abide the 

result of any legal proceeding” only when the money is to be in the possession 

of the district or county clerk for a period exceeding three days. We believe 

p. 847 
The Honorable George N. Rodriguez, page 6 (H-183) 

most, if not all, trust funds in the possession of the district or county clerk 

will have been deposited in court “to abide ” the result of a legal proceeding. 

Abide has several definitions. The Oxford English Dictionary lists 

no fewer than eighteen separate meanings for the word, 1 Oxford English 

Dictfonary 18 (1961). For our purposes two will suffice. Money deposited 

“to abide the result of any legal proceeding” may mean money deposited to 

satisfy a judgment, 50 A. 2d 36 (Pa. Super. 1946) ; 

State v. Swanson, 256 N. W. 872 (Neb. 1934); Cantor v. Sachs, 162 A.73 (Del. 

Ch. 1932); State v. Gregory, 216 N. W. 17 (Iowa 1927); Getz v. Johnston, 125 

A.689 (My.App. 1924); Jackson v. State, 1 P. 317 (Kan. 1883); see Wilson v. 

State, 7 Tex. Ct.App. 38 (1879). It may also mean money deposited to await 

the decision of the court, Lanham v. Dies, 98 S. W. 897 (Tex. Civ.App. 1906, 

no writ); Groesbeck Cotton Oil Gin & Compress Co. v. Oliver, 97 S. W, IO92 

(Tex. Civ.App. 1906, error ref’d); McGarry v. State, 14 P. 491 (Kan. 1887). 

Money paid into the registry of the court in interpleader cases is the best 

example of this latter definition of abide, e.g , Sellers v, Harris County, *. 

We believe that any money deposited in court to satisfy the result of a 

legal proceeding or to await the result of a legal proceeding falls within the 

sc,ope of $11. If that money is in the possession of the county or district clerk 

and if it is to be in his possession for more than three days, it must be deposited in the county depository for trust funds. 

You specifically ask whether “civil court deposits, probate court deposits and court ordered child support payments” are trust funds for the purposes 

of Article 2558a. We believe most, if not all, civil court deposits and probate 

court deposits would be classified as trust funds, but the terms are too general 

to permit a precise answer for all eventualities. 

Court ordered child support payments also would be encompessed in the 

definition of trust funds if paid through an intermediary. A court has broad 

discretion in determining the manner in which child support payments are to 

be made. Acts 1973, 63rd Leg., ch. 543, p. 1411, at 1424. In counties with a 

population between 225,000 and 390,000 (the 1970 population of El Paso County 

was 359,291), the Juvenile Board may require the Probation Officer to receive 

and disburse any money required to be paid into court for the maintenance of a 

minor. Art, 5142b, $ 13. V. T. C.S. 

p. 848 
The Honorable George N. Rodriguez, page 7 (H-183) 

Even though court ordered child support payments may be trust funds, 

they do not fall within the provisions of Article 2558a unless they are in the 

possession of the county or district clerk. If they are in the possession of 

the district or county clerk they need not be deposited in the county depository for trust funds unless they are in his possession for more than three days. 

If funds are in the possession of the county or district clerk in a county 

with a population of 190,000 or more and are deposited in the county depository for trust funds, they may not be disbursed without the countersignature 

of the county auditor. Article 1656b. 

Your fourth question is: 

“If the Tax Assessor-Collector collects advalorem tax monies for the State, County, Hospital 

District, School Districts and other such agencies, 

will he, not the County Treasurer deposit such funds 

himself in a County Depository in an account in his 

name? Is it mandatory for the County Auditor to 

countersign warrants or checks disbursing the 

monies to the outlined agencies? ” 

In addition to collecting taxes for the state and county, a county tax 

assessor-collector may collect taxes for many other governmental bodies. 

These include independent school districts ($23. 94, Vernon’s Texas Education 

Code), municipal school districts (g 24.07, Vernon’s Texas Education Code), 

rural fire protection districts (Art. 2351a-6, V. T. C. S.), county hospital 

districts (Art. 449n, V. T. C. S. ), mosquito control districts (Art. 4477-2, 

V. T. C. S.), water control and improvement districts (§ 51. 595, Vernon’s Texas 

Water Code), water control and preservation districts (Art. 7873, V. T. C. S.), 

drainage districts (5 56.073, Vernon’s Texas Water Code), levee improvement 

districts’($ 57; 252, Ve’rnon’s Texas Water Code),’ water improvement districts, 

navigation districts and incorporated cities, towns or villages, (Art. 1042b, V..T.CS). 

The tax assessor-collector is required under Article 2549(a), V. T. C. S., 

to deposit these funds in the county depository. That Article reads in part: 

p. 849 
The Honorable George N. Rodriguez, page 8 (H-183) 

“It shall also be the duty of the tax collector 

of such county to deposit all taxes collected by him, 

or under his authority, for the State and such county 

and its various districts and other municipal subdivisions, in such depository or depositories, as 

soon as collected, pending the preparation of his 

report of such collection and settlement thereon . . . . 

All money collected or held by any district, county or 

precinct officer in such county, or the officers of any 

defined district or subdivision in such county, including 

the funds of any municipal or quasi-municipal subdivision or corporation which has the power to select its 

own depository, but has not done so, shall be governed 

by this law, and shall be deposited in accordance with 

its requirements, and shall be considered in fixing the 

bond of such depository, and shall be protected by such 

bond; and all warrants, checks, and vouchers evidencing such funds shall be subject to audit and countersignature as now or hereafter provided by law. ” 

Article 1656a provides in part:: 

“The County Auditor in counties having a population 

of one hundred ninety thousand (190,000) or more according to the last preceding or any future Federal Census 

shall prescribe the system of accounting for the county 

and the forms to be used by the District Clerk, the District Attorney and all county and precinct officers and by 

all persons in the collection and disbursement of county 

revenues, funds, fees, and all other moneys col.lected in 

an official capacity whether belonging to the county, its 

subdivisions or precincts, or to, or for the use or benefit 

of, any person, firm, or corporation; he shall prescribe 

the mode and manner in which the District Clerk, the District Attorney and all county and precinct officers shall 

keep their accounts, and he shall have the power to require 

all officers to furnish monthly, annual, or other reports 

under oath of all moneys, taxes, or fees of every nature 

p. 850 
The Honorable George N. Rodriguez, page 9 (H-183) 

received, disbursed, or remaining on hand; and in 

connection with such reports he shall have the right 

to count the cash on hand with such officer, or to 

verify the amount on deposit in the bank in which such 

officer may have placed the same for safekeeping. He 

shall have the power to adopt and enforce such regulations not inconsistent with the Constitution and laws as 

he may deem essential to the speedy and proper collection and checking of, and accounting for, the revenues 

and other funds and fees belonging to the county or to 

any person, firm, or corporation for whom any of 

said officers may have made collections, or for whose 

use or benefit they may have received or may hold such 

funds. ” 

After a discussion of the deposit of funds to the county treasurer, the statute 

says, “The Treasurer and the depository shall make no payment unless such 

check is countersigned by the County Auditor. ” 

Except as otherwise provided, e.g., Art. 1661, V. T.~C. S., with reference to warrants for jury service, the auditor is required to countersign 

checks drawn against the county treasury: however, it is possible the funds 

in question will be in a non-treasury account in the county depository. If 

that is the case, &e county auditor may require countersignature of checks 

under his authority to prescribe a system of accounting to be used by all 

county officers, but it is not mandatory that he do so. 

The auditor is required to countersign checks drawn against the county 

treasury; however, it is possible the funds in question will be in a non-treasury 

account in the county depository. If that is the case, the county auditor may 

require countersignature of checks under his authority to prescribe a system 

of accounting to be used by all county officers, but it is not mandatory that he 

do so. 

Your fifth question states: 

p. 851 
The Honorable George N. Rodriguez, page 10 (H-183) 

“When the Sheriff collects cash bail bonds he 

places such funds in a bank account in a county depository in his own name and when the case is settled he 

is Court directed to disburse such funds to the legal 

owner. Is it mandatory for the County Auditor to 

countersign all warrants or checks disbursing these 

funds? ” 

Attorney General Opinion C-740 (1966) discusses in detail the collection 

of cash bonds by peace officers. It is the conclusion of that opinion that: 

“[t]he officer receiving the cash, if he is not the custodian 

of the funds of the court, should deposit the sum of money 

received with the custodian. We are of the opinion that 

there is no necessity or authority for a court to appoint 

a sheriff as custodian of the funds since the clerk of the 

court or the justice of the peace, as the case may be, is 

already charged with that duty. The sheriff or other peace 

officer accepting the cash bond should simply receipt~the 

bond to the defendant and then turn the money over to the 

clerk of the court or the justice of the peace, whichever is 

the appropriate officer. We note however that if the Court 

in which the cash bond is given does not have jurisdiction 

to try the defendant, the cash bond should be transferred to 

the clerk of the court that has such jurisdiction. ” 

If the bond is deposited with the district or county clerk the provisions 

of Articles 2558a and 1656b would apply. The countersignature of the county 

auditor would be required before the money could be refunded. If a justice of 

the peace is the custodian of the money, he will be bound by the provisions of 

Article 2290, V. T. C. S. Of course, the auditor may prescribe accounting 

procedures which would require his countersignature in this instance also. 

SUMMARY 

1.. The county auditor has discretion to prescribe 

the manner and time of deposits to the county treasurer 

by officers who collect county funds. 

p. 852 
The Honorable George N. Rodriguez, page I1 (H-183) 

2. County officers must secure deposit warrants 

when depositing funds to the credit of the county treasurer, 

3. Court ordered child support payments, if paid 

through the county or district clerk, are subject to the 

requirements of Articles 2558a and 1656b, V. T. C. S. 

4. The county auditor is required to countersign 

checks against the county treasury, except those checks 

issued for jury service. Although he may establish accounting procedures requiring his countersignature on nontreasury checks distributing tax money collected by the 

county tax assessor-collector for other governmental 

bodies, he is not required to do so. 

5. A peace officer receiving a cash bail bond should 

deliver it to the custodian of funds of the appropriate court. 

Very truly yours, 

Attorney General of Texas 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 853