Hon. Joe Resweber

~CountyAttorney Harris County Courthouse Houston, Texas 77002 Opinion No. **M- 1198** 
Re: Questions relating to the performance of theduties of adistrict clerk relating to trust funds, pursuant to Articles 1656a and 2558a, Vernon's Civil Statutes, and

Dear Mr. Resweber: in light of Sellers v. Harris County, ,S.W.2d (Tex.Sup. 1972).
Your recent letter requesting the opinion of thisoffice concerning the referenced matter asks several questions relating to the duties of adistrict clerk regarding trust funds placed inhis custody, in light of the recent decision in Sellers v; Harris County, S.W.Zd (Tex.Sup. 1972) (No.B-2892, May 31, 1972). Your questions are as follows:

"Question No. l.-Did the opinion of the Supreme Court of Texas, sorendered in said Sellers Case, declare Article 2558a, V.C.S., in its entirety to offend Article 1, Section ‘19of the Texas Constitution and the Fourteenth Amendment of theUnited States Constitution? "Question No. 2. - Ifyour opinion to Question No. 1 isNo, what sections of said Article 2558a,V.C.S., remain in full force and effect? "Question No. 3. -What effect, if any, does said holding in said Sellers Case have upon the presently existing depository contract between the Commissioners Court of Harris County and the Houston National Bank pertaining to Harris County District Clerk Trust Fund Account entered intopursuant toArticle 2558a, V.C.S.?

**- 5844-** Hon. Joe Resweber, page 2 (M-1198)

"Question No. 4. -WasArticle 1656a,V.C.S., which contains therein theprovision, to-wit 1

. . .and draw interest for the benefit of the County,
. . .I,also declared by said Supreme Court in said Sellers Case to offend, in its entirety, Article I, Section 19 of the Texas Constitution, and theFourteenth Amendment of theUnited States Constitution? "Question No. 5. - Ifyour opinion to QuestionNo. 4 isNo, what sections of saidArticle 1656a,V.C.S., remain in full force and effect? "Question No. 6. -What portions ofArticle 1656b,V.C.S., are affected by the Sellers opinion? "Question No. 7. - Ifyour opinions to Questions Nos. 1and 4areYes,
. . . (isthe District Clerk) statutorily required, inorder to avoid the penalties prescribed under Articles 383 and 383a of the Penal Code of Texas, to institute the procedure prescribed inArticle 2290,V.C!S., to safeguard Registry of the Court Funds? "Question No. 8. -The Supreme Court in its said opinion in the Sellers Case, affirmed the Trial Court's Judgment which among other things decreed, to-wit, 'atthe conclusion of the litigation the trial court is to determine a reasonable fee to compensate Harris **County** for its accounting and administrative expenses incurred inhandling the fund.' This lawsuit is now wholly concluded, but for future reference

. . . (thedistrict clerkwant/s/) to know: II

. . * (Ishe) legally authorized to retain and accept such areasonable fee, asdetermined by the Trial Court?
"Is the collection of such a reasonable fee, asdetermined by theCourt, tobe received, reported and accounted for as other statutory fees of
. . . (his)office?"

-5845-Hon. Joe Resweber, page 3 (M-1198)

The following materials were submitted byyouwith your letter: (a) final decision of the Texas Supreme Court inSellers v. Harris County, datedNay 31, 1972, onmotion for rehearing;(b) original decisipn of the Supreme Court in said case, dated April 5, 1972 (withdrawn); (c) Harris County's Brief in Support ofMotion for Rehearing; (d) Judgment and Decree of the District Court; and (e) Depository Contract by and between Harris County and theHouston National Bank,.inter alia.

Section 4aofArticle 2558,Vernon's Civil Statutes, provides, inpertinent part, that:

,I

. . .The Commissioners Court isauthorized anddirected to receive all interest so earned on time deposit of such trust funds and toplace all such interest into theGeneral Fund of theCounty as an offset to the expenses of handling such trust funds for thebenefit of litigants." (Emphasisadded.) Section 4bof thatArticle provides that: "TheCommissioners Court of each county, acting by and through the County Auditor

. . . isauthorized toplace in the General Fund of the county any accumulated interest derived from trust funds in thepossession of County andDistrict Clerks of such county
. . .,g offset the expenses of handling such trust funds for thebenefit of litigants." (Em: phasis added.) Article 1656a,Vernon's Civil Statutes, also provides, inpertinent part, that:

"TheCounty Auditor incounties having a population of one hundred ninetv **thnnaand**

a ---.. _- -----..---.I) _“^ -..- W”....GJ ..d... CI.G forms to be used by the District Clerk
. . .in the collection anddisbursement of county revenues, funds, fees, and all other moneys collected in an official capacity whether belonging to the county
. . .or to, or for the use or benefit of, anyperson, firm, or corporation:

. . . All of the fees, commissions, funds, and moneys herein referred to shall be turned over to the County -5846-,

Hon. Joe Resweber, page 4 (M-1198)

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 anddraw interestfor the benefit of the county;
_ 11

. . . (Emphasis added.)
In Sellers v. Harris County, cited supra, the Supreme Court of Texas held that, when trust funds are paid into court during litigation and invested at interest by the district clerk or county auditor, the district judgemay direct the,ultimate payment of the interest to the owner of the principal, rather than directing that all interest bepaid to the county. The Supreme Court also saidthat ".
. .At the conclusion of the litigation the trial court was todetermine areasonable fee to compensate Harris County for its accounting and administrative expenses incurred inhandling the fund." (SlipOpinion, p. 2.)

Your first question asks if the Supreme Court declared Article 2558a, unconstitutional in its entirety. In referring only to Sections 4a and 4bof thatArticle,.the Court said:

"Bydepriving the owner of a sum not reasonably related to the value of the county's services in safeguarding and investing theprincipal, the statute offends Article 1, Section 19 of the Gas Constitution aswell as the Fourteenth Amendment of theUnited States Constitution.

. . ." (Emphasis added.)
We are of the opinion that the rule of statutory construction applicable toyour request is that stated inVernon v. State, 407 S.W.2d 236 (Tex.Civ.App. 1966, error ref. n.r.e.):

II

. . . It is incumbent upon the courts to sever any unconstitutional provision and to sustain the remainder. See Harris County Water Control & Imp. Dists., etc. v.Albright, 153 Tex. 94, 263 S.W.Zd 944 (1954);and see City of Taylor v. Taylor Bedding Mfg. Co., 215 S.W.2d 215-217, Tex.Civ.App. 1948)wr.ref. This is especially true where the statute concerns several matters. Davis v. Whie, 260 S.W. 138- 141, Tex.Civ.App. (19241,wr.ref. We believe that if such section which appellants complain of, should be held invalid, it isnot so intermingled with other parts of theAct as tomake -5847-Hon. Joe Resweber, page 5 (M-1198)

it impossible to separate from thebalance of the Act." 406 S.W.Zd at 243.~ I Being mindful of the foregoing language fromVernon, of the fact that the Supreme Court in Sellers was only considering the constitutionality of Sections 4aand 4b ofArticle 2558a, and of the fact that the Article has fifteen different sections relating to many other matters which appear to us tobewholly severable, we have concluded that the Court didnot hold Article 2558a unconstitutional in its ,entirety,notwithstanding what might be interpretea as language to the contrary ("thestatute") in its opinion. Sections 4a and 4b are not so intertwined and,intermingled with the other sections of theArticle as tomake the entire statute constitutionally infirm. Rather, it is our opinion that the Court meant only to hold Sections 4a and 4b; insofar as theywere applied in the fact situation in Sellers, unconstitutional, to the extent that the statutory provisions deprived the owner of the fund inquestion his property without due process of law.

Nor are we of the opinion, asyou suggest, thatArticle 2558a,minus Sections 4a and 4b,would be violative of Sections 51and 52ofArticle III, or of Section 6 ofArticle XVI, of the Constitution of Texas.

Therefore, your first question is answered in the negative.
Our answer toyour second question is that all sections of Article 2558a remain valid and in full force and effect, with the exception of Sections 4a and 4b, as those Sections are applied in fact situations similar to that in Sellers.,-, Those Sections are still constitutionally operable to the extent that a reasonable portion of the interest accumulated on such trust funds may be given to counties to compensate them for their accounting and administrative expenses incurred in handling the trust funds: the amount oftsuch reimbursement to counties shall be set by the trial court having jurisdiction of the cause of action inwhich the trust fundwas established.

Our answer to your third question is that the holding in the Sellers case innoway invalidates or has any effect o,nthe depository contract dated March 30, 1971, and executed by and between the Houston National Bank and Harris County, inasmuch as theprovisions ofArticle 2558a relating to this depository contract remain in full force and effect.

Your fourth question askswhether Article 1656a was also declared by Sellers tobe unconstitutional in its entirety. Nowhere

-5848-Hon. Joe Resweber, Page 6 (M-1198)

in the Sellers opinion is thatArticle declared unconstitutional. However, we are of the opinion that the portion ofArticle 1656a reading "anddraw interest for thebenefit of the county", underscored supra, is ofdoubtful constitutionality in light of the court's statements concerning Sections 4a and 4bofArticle 2558a. In light of the Sellers holding,such portion ofArticle 1656amust be read toprovide that the special fund,shall draw interest for thebenefit of the county to the extent that a reasonable fee to compensate the county for its accounting and administrative expenses incurred inhandling trust funds is allowed by the courts having jurisdiction of the cause of action wherein the trust funds arose. Thus, your fourth question is answered in the'negative.

The answer toyour fifth question is that all ofArticle 1656a remains valid and in full force and effect, but subject to the change as to apportionment of the accrued interest mentioned inour answer toyour question four immediately preceding.

The answer toyour sixth question is that noportions of Article 165613,Vernon's Civil Statutes, are affected by Sellers.

Inasmuch asyour question number seven ispredicated on an affirmative'answer toyour questions one and four, and inasmuch aswe have answered both of those questions in the negative, it is not necessary forus to consider your seventh question.

The answer to the first part ofyour eighth question is that theHarris County District Clerk is, pursuant to the authority of Sellers, legally authorized to retain and accept the reasonable fee set by the trial court for Harris County's expenses incurred inhandling the trust fund.

The answer to the second part ofyour eighth question is that such fee retained and accepted by the Harris County District Clerk is tobe received, reported and accounted for as all other statutory fees of his office.
SUMMARY 

### (1) Pursuant toArticles 1656a and 2558a, Vernon's Civil Statutes, when trust funds are paid into court during litigation and invested at interest by the district clerk or county auditor, the district judge shall direct the

-5849-Hon. Joe Resweber, page 7 (M-1198)

ultimate payment of the interest to the owner of the principal less a reasonable fee tobe determined by him to compensate the county for its accounting and administrative expenses incurred inhandling the fund. (2) Article 2558awas not declared unconstitutional in its entirety by the Supreme Court of Texas in Sellers v.Harris County, S.W.Zd (CauseNo. B-2892, May 31, 1972); rather, only Sections 4aand 4bof the Article were rendered unconstitutional, as applied in the factual situation set forth in S+ers, to the extent that the statutory provisions deprived the owner of the fund inquestion his property without due process of law. (3) The Sellers casehas no effect on the presently existing depository contract by and between Harris County and the Houston National Bank.(4) Article 1656awas not declared unconstitutional by the Sellers case, but theportion thereof reading "anddraw interest for thebenefit of the county" must be read in light of the Sellers holding. (5) **No**portions ofArticle 1656b,Vernon's Civil Statutes, are affected by the Sellers, decision. (6) A district clerk is legally authorized by Sellers to retain and accept the fee set forth inparagraph (1)hereinabove, and such fee is to be received, reported and accounted for as other statutory fees ofhis office.
Ver& rulyyours,

C. MARTIN ey General of Texas Prepared by Austin C. Bray, Jr. Assistant Attorney General
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Hon. Joe Resweber, page 8, (M-1198)

APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E.Allen, Co-Chairman Malcolm Quick Scott Garrison Mike Stork Gerald Ivey SAMUEL D.MCDANIEL Staff Legal Assistant
ALFRED WALKER Executive Assistant
NOLA WHITE First Assistant

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