March 29, 1989 

Mr. l-l. Bate Bond Opinion No. JM-1034 

County Auditor 

Coma1 County Re: 

150 N. Seguin, Suite 201 

Authority to transfer hot 

New Braunfels, Texas 

check fund from county attorney 

78130 to district attorney (RQ-1630) 

Dear Mr. Bond: 

Your questions1 relate to fees collected by the 

attorney under article 

county 

1.02.007 of the Code of Criminal 

Procedure. Article 102.007 provides for the collection by a 

county attorney, district attorney, or criminal district 

attorney of a fee in connection with the collection or 

cessing by his office of a check if the check had E,'z, 

issued or passed in a manner constituting one of the 

offenses set forth in that article. 

You ask whether the funds collected under article 

102.007 by the county attorney "fall under the control of 

the Commissioners Court when moving them from one official 

to another." 

You advise that there has been a disagreement between 

your office and the county attorney as to whether the county 

attorney may transfer funds out of this account to the 

office of the district attorney without the permission of 

the commissioners court. 

1. A county auditor is required to submit any opinion 

request initially to his county or district 

pursuant to section 41.007 of the Government Code. 

attorney 

this office will-accept an 

However, 

county auditor in an 

opinion request directly from a 

instance where the auditor's office 

disagrees with the county attorney and believes that the 

county attorney's position is in conflict with 

opinions of the Attorney General's Office. 

prior 

You advise that 

such a situation prompted your request. 

p. 5347 
Mr. Ii. Bate Bond - Page 2 (JM-1034) 

Subdivision (e) of article 102.007 provides with 

respect to the disposition of such fees as follows: 

Fees collected under this article shall be 

deposited in the county treasury in a special 

fund to be administered by the county attorney, district,attorney, or criminal district 

attorney. Exoenditures from this fund shall 

be at the sole discretion of the attorney and 

may be used onlv to defray the salaries and 

exuenses of the orosecutor's office, but in 

no event may the county attorney, district 

attorney, or criminal district attorney 

supplement his own salary from this fund. 

(Emphasis added.) 

Code Crim. Proc. art. 102.007(e). 

In Attorney General Opinion JM-967 (1988), the matter 

of whether certain prior opinions of this office relative to 

the management of the "hot check" funds were in conflict was 

addressed as follows: ' 

Attorney General Opinion JM-313 [1985] 

simply pointed out that although expenditures 

from the 'hot check' fund were not subject to 

commissioners court approval, the fund was 

generally subject to statutes regulating the 

handling of county moneys, citing Attorney 

General Opinions MW-188 (1980) ('hot check' 

fund subject to county auditor's power to 

prescribe accounting and control procedures 

for making deposits and disbursements), and 

MW-584 (1982) ('hot check' fund subject to 

various reporting requirements applicable to 

county funds). 

We find no conflict between JM-313 and 

MW-439 [1982]. We adhere to the rationale of 

MW-439 that to subject 'hot check' fund 

expenditures to the competitive bidding 

requirements would olace ultimate control of 

these eXDenditUreS in the commissioners court 

-which 'could. for examole. refuse to accent 

anv or all bids in a oarticular instance and 

thus interfere with the exclusive riaht of 

the desianated individuals to administer the 

fund and to determine when, for what ourooses, and under what circumstances eXDeIIdi.tUreS 

will be made from it.' Attorney General 

Opinion MW-439 (1982), at 6. Such a result 

p. 5348 
Mr. H. Bate Bond - Page 3 (JM-1034) 

would be contrary to the express provision of 

article 102.007 . . . that '[elxpenditures 

from this fund shall be at the sole discretion of the attorney.' (Emphasis added.) 

Limitations on expenditures from the special fund under 

article 53.08 of the Code of Criminal Procedure (now article 

102.007) and the matter of the disposition of any surplus 

were discussed in Attorney General Opinion JM-313, as 

follows: 

Expenditures from the special fund are, 

however, limited to defraying 'the salaries 

and expenses of the prosecutor's office.' In 

other words, all expenditures from the fund 

must relate to the official business of the 

prosecutor's office. There is no reouirement 

that the attornev SDend the entire fund: 

rather. the attornev mav SDend no more than 

the amount which is reasonablv necessary to 

defrav the salaries and exDenses of the 

office. Anv surDlus must remain in the fund, 

subiect to the leaislature's further direction for disDosition. A Dositive balance mav 

be carried from one fiscal vear to the next 

but such funds remain subiect to the limitation to office exDenses. Article 53.08 does 

not require the attorney to pay any excess in 

the special fund over to the general fund of 

the county. The attorney must, however, comply with various reporting statutes. See 

Attorney General Opinion MW-584 (1982) (and 

statutes cited therein). (Emphasis added.) 

The attorney has exclusive control of the 'funds; 

however, he may expend no more than is reasonably necessary 

to defray the salaries and expenses of the office. While 

the commissioners court has no control of these funds it 

should be noted that any interest earned from these funds is 

treated differently. In Attorney General Opinion JM-632 

(1987) it was concluded that any interest earned by the 

deposit of money received pursuant to the so-called "hot 

check" fund, must be deposited in the general revenue funds 

of the respective counties pursuant to article 

section 113.021(c) 

1709, 

V.T.C.S. (now of the Local Government 

Code). 

p. 5349 
Mr. H. Bate Bond - Page 4 (JM-1034) 

While the term "prosecutor" may mean count 

3 

attorney, 

district attorney, or criminal district attorney there can 

be no question but that they are separate and distinct 

offices. Section 102.007 and opinions of this office 

construing this statute provide that expenditure of these 

funds is limited to defraying the salaries and expenses of 

the office generating the fund rather than for prosecutors' 

offices generally. Section 102.007 makes no provision for 

transfer of the funds between the offices of county and 

district attorney or any other office. Any surplus must 

remain in that officer's special fund subject to the legislature's further direction for disposition. Attorney 

General Opinion JM-313. 

SUMMARY 

Expenditures from a county attorney's 

"hot check" fund created pursuant to article 

102.007 of the Code of Criminal Procedure may 

be made at the sole discretion of the county 

attorney to defray salaries and expenses of 

that office (except that such official may 

not supplement his own salary). Neither the 

county attorney nor- the commissioners court 

is authorized to transfer funds from such 

account to the district attorney or any other 

official. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LCNJ MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

2. Section 41.101 of the Government Code provides that 

"In this subchaoter, 'prosecuting attorney' means a county 

attorney, district attorney, or criminal district attorney." 

p. 5350 
Mr. H. Bate Bond - Page 5 (JM-1034) 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

P. 5351