March 29, 1989

Mr. l-l.

Bate Bond Opinion No. JM-1034 County Auditor Coma1 County Re: 150N. Seguin, Suite 201 Authority to transfer hot

New Braunfels, Texas check fund from county attorney 78130 todistrict attorney (RQ-1630)

DearMr. Bond:

Your questions1 relate to fees collected by the attorney under article county 1.02.007 of the Code of Criminal Procedure. Article 102.007provides forthe collection by a county attorney, district attorney, or criminal district attorney ofa fee inconnection with the collection or cessing by his office ofa check if the check had E,'z, issued or passed in a manner constituting one of the offenses set forth inthat article.

You ask whether the funds collected under article 102.007 by the county attorney "fallunder the control of the Commissioners Courtwhen moving them from one official toanother."

You advise that there hasbeen adisagreement between your office and the county attorney as towhether the county attorney may transfer funds out of this account to the office of the district attorney without thepermission of the commissioners court.

1. A county auditor isrequired to submit any opinion request initially to his county or district pursuant to section 41.007 ofthe Government Code. attorney

this office will-accept an However,

county auditor inan 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 theAttorney General's Office. prior You advise that such a situation prompted your request.

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

Subdivision (e) of article 102.007 provides with respect to the disposition of such feesas follows:

Fees collected under this article shall be deposited inthe county treasury ina special fund tobe administered by the county attorney, district,attorney, or criminal district attorney. Exoenditures from this fund shall be at the solediscretion of the attorney and may beused onlv todefray 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).

InAttorney General Opinion JM-967 (1988),the matter ofwhether certain prior opinions of this office relative to themanagement ofthe "hot check" fundswere inconflict was addressed as follows: '

Attorney General Opinion JM-313 [1985] simply pointed out that although expenditures from the 'hotcheck' fundwere 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 formaking deposits anddisbursements), and MW-584 (1982) ('hotcheck' 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 inthe commissioners court -which 'could. for examole. refuse to accent
anv orallbids inaoarticular instance and thus interfere with the exclusive riaht of the desianated individuals to administer the fund and to determine when, forwhat ourooses, andunder what circumstances eXDeIIdi.tUreS will be made from it.' Attorney General Opinion MW-439 (1982),at 6. Such a result

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

would be contrary to the express provision of article 102.007

. . .that '[elxpenditures from this fund shall beat the sole discretion of the attorney.' (Emphasisadded.)

Limitations onexpenditures from the special fundunder article 53.08 of the Code ofCriminal Procedure (nowarticle 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 theprosecutor's office.' In other words, all expenditures fromthe fund must relate to the official business of the prosecutor's office. There isno reouirement that the attornev SDend the entire fund: rather. the attornev mav SDend nomore than the amount which isreasonablv necessary to defrav the salaries and exDenses of the office. Anv surDlusmust remain inthe fund, subiect to the leaislature's further direction fordisDosition. ADositive balance mav be carried from one fiscalvear to the next but such funds remain subiect to the limitation to office exDenses. Article 53.08 does not require the attorney topay 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, hemay expend nomore than isreasonably necessary to defray the salaries and expenses of the office. While the commissioners court hasno 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 bedeposited inthegeneral 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. 5349Mr. H. Bate Bond -Page 4 (JM-1034)

While the term "prosecutor" maymean count3 attorney, district attorney, orcriminal 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 todefraying the salaries and expenses of the office generating the fund rather than for prosecutors' offices generally. Section 102.007 makes noprovision for transfer of the funds between the offices of county and district attorney orany other office. Any surplus must remain inthat 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 ofCriminal Procedure may bemade at the solediscretion of the county attorney todefray salaries and expenses of that office (exceptthat such official may not supplement his own salary). Neither the county attorney nor- the commissioners court isauthorized to transfer funds from such account to thedistrict attorney or any other official.

JIM MATTOX Attorney General ofTexas

MARY KELLER FirstAssistant Attorney General

LCNJMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

2. Section 41.101 of theGovernment Code provides that "In this subchaoter, 'prosecuting attorney' means a county attorney, district attorney, orcriminal district attorney."

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

RICK GILPIN Chairman, Opinion Committee
Prepared byTom G.Davis Assistant Attorney General

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