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 ofthe county auditor Dear Mr. Rodriguez: You have asked our opinion onfive queations which relate generally tothe duties and responsibilities ofthe 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as stated in Attorney General’s Opinion No. WW-86 ofApril 5, 19577” Article 1656a, Vernon’s Texas Civil Statutes, as originally enacted byActs ofthe 43rd Legislature, Regular Session, Chapter 98, p. 217, provided in part:

“The County Auditor in counties having apopulation

ofone hundred ninety thousand (190,000) or more according to the last preceding or any future Federal Census shall prescribe the system ofaccounting for the county.
. . , Should the County Auditor deem it to be to the best interest ofthe county or deem it necessary in order that the provisions ofthis law may be better enforced.

. ., he shall have the right to prescribe that all ofthe fees and moneys herein referred to shall be turned over tothe 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 ofthe county,
. . . .”

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

Article 1656a was amended by the Acts ofthe 44th Legislature, Regular Session, Chapter 122, p. 330, to read in part:

“All ofthe 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 theamendatory act limiting the county auditor’s discretion regarding the deposit offunds in the county treasury were void as they ware outside the scope ofthe 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) ofArticle 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 ofthe 43rd Legislature, 1933, as amended (Article 1656a, Vernon’s Texas Civil Statutes). ” Section 5ofArticle 1709a provides:

“All existing laws pertaining tothe duties and responsibilities ofthe County Auditors ofthe State of Texas shall innoway be affected or changed by this law. Reference tovarious 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 1656awas incorporated by reference inArticle 1709a, 55dispels such anotion. It is our conclusion that the county auditor in the counties affected byArticle 1656a has some discrep. 844The Honorable George N. Rodriguez, page 3 (H-183)

tionary authority in prescribing procedures for the deposit ofmoney 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 aDeposit Warrant in accordance with Article 1657and 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 offunds bythe County Tax Assessor-Collector. It indicated that:

“[I]t is apparent from reading all ofthese statutes, [Articles 7295, 7249a, 2549 and 25541which are in para materia, that the Legislature intended that tax collections be placed on deposit at least on aweekly basis to beavailable 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 tothe Commissioners Court. The language inArt. 2549 can only be reasonably construed as meaning as soon as possible and not less than weekly, and in contemplation ofthe tax collector’s monthly report. ” OnMonday ofeach week the tax assessor-collector must transfer 90per cent ofall county tax funds collected during the previous week to the account of the County Treasurer. He can be required todeposit funds to the treasurer ona 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. 845The Honorable George N. Rodriguez, page 4(H-183)

the county treasurer as directed bythe 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 toyour third and fifth questions. When funds are transferred tothe account ofthe county treasurer, the deposit must be ona 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 ofArticle 1657donot apply to the initial deposit. Itwill be necessary to comply with the article when funds are transferred to the treasurer’s account. Your third question is:

“What is the definition ofa ‘Trust Fund’ as mentioned inArticle 2558A? Are such collections as ‘Civil Court Deposits’, Probate Court Deposits and ‘Court Ordered Child Support payments’ defined as a ‘Trust fund’? Ifsuch collections are not Trust Funds as prescribed inArticle 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 todeal with the trust property for the benefit ofthe beneficiaries who have avested interest in the trust funds. 57Tex. Jur. 2d Trusts 51(1964). Any funds fitting this definition are trust funds and, if in the possession ofthe 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 ofArticle 2558a are unconstitutional. Sellers v. Harris County, 483 S.W. 2d 242 (Tex. 1972); however, only sections 4aand 4b, which are not in issue in this opinion, were affected by the Sellers decision. Attorney General Opinion M-1198 (1972). Section 4ofthat statute provides in part:

p. 846The 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 ofa successor, and thereupon it shall be the duty ofthe County and Districts Clerks ofsuch county to deposit all Trust Funds in their possession with said depository in the manner hereinafter provided

1,

. . . . Section 11provides:

“Any County or District Clerk having the custody by law ofany money that may have been deposited in court to abide the result ofany legal proceeding, which amount is to be in his possession for ,aperiod longer than three (3) days, shall deposit the same in the county depository for Trust Funds, if there be such adepository. 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 ofthis Act. ” Article 2558a applies only to those trust funds in the possession ofthe district or county clerk. Money which is held by other officers, even though the money constitutes a trust fund, is not within the purview ofthis article; however, insofar as county and district clerks are concerned, the Act applies toall 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 11requires the deposit ofmoney “deposited in court to abide the result ofany legal proceeding” only when the money is to be in thepossession ofthe district or county clerk for aperiod exceeding three days. We believe

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

most, if not all, trust funds in the possession ofthe district or county clerk will have been deposited in court “to abide ” the result ofa legal proceeding. Abide has several definitions. The Oxford English Dictionary lists nofewer than eighteen separate meanings for the word, 1Oxford English Dictfonary 18(1961). For our purposes two will suffice. Money deposited

“to abide the result ofany legal proceeding” may mean money deposited to satisfy ajudgment, 50A.2d 36 (Pa. Super. 1946); State v. Swanson, 256 N.W. 872 (Neb. 1934); Cantor v. Sachs, 162A.73 (Del. Ch. 1932); State v. Gregory, 216N.W. 17(Iowa 1927); Getz v. Johnston, 125 A.689 (My.App. 1924); Jackson v. State, 1P. 317(Kan. 1883); see Wilson v. State, 7Tex. Ct.App. 38 (1879). It may also mean money deposited to await the decision ofthe court, Lanham v. Dies, 98S.W. 897 (Tex. Civ.App. 1906, nowrit); Groesbeck Cotton Oil Gin &Compress Co. v. Oliver, 97S.W, IO92 (Tex. Civ.App. 1906, error ref ’d); McGarry v. State, 14P. 491 (Kan. 1887). Money paid into the registry ofthe court in interpleader cases is the best example ofthis latter definition ofabide, e.g, Sellers v, Harris County, *. We believe that any money deposited in court to satisfy the result ofa legal proceeding or to await the result ofalegal proceeding falls within the sc,ope of $11. Ifthat money is in the possession of the county or district clerk and if it is to be inhis 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 ofArticle 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 oftrust funds if paid through an intermediary. A court has broad discretion in determining the manner inwhich 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 1970population 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 ofa minor. Art, 5142b, $13. V. T. C.S.

p. 848The 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 ofArticle 2558a unless they are in the possession ofthe county or district clerk. Ifthey are in the possession of thedistrict or county clerk they need not be deposited in the county depository for trust funds unless they are inhis possession for more than three days. Iffunds are in the possession ofthe county or district clerk in a county with apopulation of 190,000 or more and are deposited in the county depository for trust funds, they may not be disbursed without the countersignature ofthe 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 inhis 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 ($23.94, Vernon’s Texas Education Code), municipal school districts (g24.07, Vernon’s Texas Education Code), rural fire protection districts (Art. 2351a-6, V.T. C.S.), county hospital districts (Art. 449n, V. T. C.S.), mosquito control districts (Art. 4477-2, V. T.C.S.), water control and improvement districts (§51.595, Vernon’s Texas Water Code), water control and preservation districts (Art. 7873, V. T. C.S.), drainage districts (556.073, Vernon’s Texas Water Code), levee improvement districts’($ 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., todeposit these funds in the county depository. That Article reads in part:

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

“It shall also be the duty ofthe tax collector of such county to deposit all taxes collected byhim, 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 ofhis report of such collection and settlement thereon

. . . . All money collected or held byany district, county or precinct officer in such county, or the officers ofany defined district or subdivision in such county, including the funds ofany municipal or quasi-municipal subdivision or corporation which has the power to select its own depository, buthas not done so, shall be governed bythis 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 toaudit and countersignature as now or hereafter provided by law. ” Article 1656a provides in part::

“The County Auditor in counties having apopulation of one hundred ninety thousand (190,000) or more according tothe last preceding or any future Federal Census shall prescribe the system ofaccounting 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 ofcounty 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 inwhich 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 tofurnish monthly, annual, or other reports under oath ofall moneys, taxes, or fees of every nature

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

received, disbursed, or remaining onhand; and in connection with such reports he shall have the right to count the cash onhand 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 toadopt 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 tothe 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 ofthe deposit offunds to the county treasurer, the statute says, “The Treasurer and the depository shall make nopayment unless such check is countersigned bythe County Auditor. ” Except as otherwise provided, e.g., Art. 1661, V. T.~C.S., with reference towarrants for jury service, the auditor is required to countersign checks drawn against the county treasury: however, it is possible the funds inquestion 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 ofaccounting tobe used byall county officers, butit 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 anon-treasury account in the county depository. Ifthat is the case, the county auditor may require countersignature ofchecks under his authority toprescribe a system ofaccounting to be used by all county officers, butit is not mandatory that he doso.Your fifth question states:

p. 851The 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. Itis the conclusion ofthat opinion that:

“[t]he officer receiving the cash, if he is not the custodian ofthe funds ofthe court, should deposit the sum ofmoney received with the custodian. We are ofthe opinion that there is no necessity or authority for a court toappoint a sheriff as custodian ofthe funds since the clerk ofthe court or thejustice ofthe 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 ofthe court or the justice ofthe 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 ofthe court that has such jurisdiction. ” Ifthe bond is deposited with the district or county clerk the provisions ofArticles 2558a and 1656bwould apply. The countersignature ofthe county auditor would be required before the money could be refunded. Ifajustice of the peace is the custodian ofthe money, he will be bound bythe 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 ofdeposits to the county treasurer by officers who collect county funds.

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

2. County officers must secure deposit warrants when depositing funds tothe credit ofthe county treasurer, 3. Court ordered child support payments, if paid through the county or district clerk, are subject to the requirements ofArticles 2558a and 1656b, V. T. C.S. 4. The county auditor is required tocountersign checks against the county treasury, except those checks issued for jury service. Although he may establish accounting procedures requiring his countersignature onnontreasury 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 offunds ofthe appropriate court. Very truly yours,

Attorney General ofTexas

DAVID 

### M. KENDALL, Chairman Opinion Committee

p. 853