Hon. Joe Resweber 

~County Attorney 

Harris County Courthouse 

Houston, Texas 77002 

Opinion No. M- 1198 

Re: Questions relating to the 

performance of the duties 

of a district 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 this office 

concerning the referenced matter asks several questions relating to 

the duties of a district clerk regarding trust funds placed in his 

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, so rendered in said 

Sellers Case, declare Article 2558a, V.C.S., 

in its entirety to offend Article 1, Section 

‘19 of the Texas Constitution and the Fourteenth 

Amendment of the United States Constitution? 

"Question No. 2. - If your opinion to 

Question No. 1 is No, 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 into pursuant to Article 2558a, 

V.C.S.? 

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

"Question No. 4. - Was Article 1656a, V.C.S., 

which contains therein the provision, 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 the Fourteenth Amendment of 

the United States Constitution? 

"Question No. 5. - If your opinion to Question No. 4 is No, what sections of said Article 

1656a, V.C.S., remain in full force and effect? 

"Question No. 6. - What portions of Article 

1656b, V.C.S., are affected by the Sellers opinion? 

"Question No. 7. - If your opinions to 

Questions Nos. 1 and 4 are Yes, . . . (is the 

District Clerk) statutorily required, in order 

to avoid the penalties prescribed under Articles 

383 and 383a of the Penal Code of Texas, to institute the procedure prescribed in Article 

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, 'at the conclusion of the litigation the trial court is to determine a reasonable fee to compensate Harris County for its 

accounting and administrative expenses incurred 

in handling the fund.' This lawsuit is now 

wholly concluded, but for future reference 

. . . (the district clerk want/s/) to know: 

II . . * (Is he) legally authorized to 

retain and accept such a reasonable fee, 

as determined by the Trial Court? 

"Is the collection of such a reasonable 

fee, as determined by the Court, to be 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 by you with your 

letter: (a) final decision of the Texas Supreme Court in Sellers 

v. Harris County, dated Nay 31, 1972, on motion for rehearing;(b) 

original decisipn of the Supreme Court in said case, dated April 

5, 1972 (withdrawn); (c) Harris County's Brief in Support of Motion 

for Rehearing; (d) Judgment and Decree of the District Court; and 

(e) Depository Contract by and between Harris County and the Houston 

National Bank,.inter alia. 

Section 4a of Article 2558, Vernon's Civil Statutes, provides, in pertinent part, that: 

,I . . . The Commissioners Court is authorized 

and directed to receive all interest so earned on 

time deposit of such trust funds and to place all 

such interest into the General Fund of the County 

as an offset to the expenses of handling such 

trust funds for the benefit of litigants." 

(Emphasis added.) 

Section 4b of that Article provides that: 

"The Commissioners Court of each county, 

acting by and through the County Auditor . . . 

is authorized to place in the General Fund of 

the county any accumulated interest derived 

from trust funds in the possession of County 

and District Clerks of such county . . ., g 

offset the expenses of handling such trust 

funds for the benefit of litigants." (Em: 

phasis added.) 

Article 1656a, Vernon's Civil Statutes, also provides, 

in pertinent part, that: 

"The County Auditor in counties 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 and disbursement 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, 

any person, 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 

and draw 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 judge may direct the, ultimate payment of the interest to the owner of the principal, rather than 

directing that all interest be paid to the county. The Supreme 

Court also saidthat ". . . At the conclusion of the litigation 

the trial court was to determine a reasonable fee to compensate 

Harris County for its accounting and administrative expenses incurred in handling the fund." (Slip Opinion, p. 2.) 

Your first question asks if the Supreme Court declared 

Article 2558a, unconstitutional in its entirety. In referring only 

to Sections 4a and 4b of that Article,.the Court said: 

"By depriving the owner of a sum not reasonably related to the value of the county's services 

in safeguarding and investing the principal, the 

statute offends Article 1, Section 19 of the Gas 

Constitution aswell as the Fourteenth Amendment 

of the United States Constitution. . . ." (Emphasis added.) 

We are of the opinion that the rule of statutory construction applicable to your request is that stated in Vernon 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 is not so intermingled with other parts of the Act as to make 

-5847- 
Hon. Joe Resweber, page 5 (M-1198) 

it impossible to separate from the balance of 

the Act." 406 S.W.Zd at 243.~ I 

Being mindful of the foregoing language from Vernon, of the 

fact that the Supreme Court in Sellers was only considering the constitutionality of Sections 4a and 4b of Article 2558a, and of the 

fact that the Article has fifteen different sections relating to 

many other matters which appear to us to be wholly severable, we 

have concluded that the Court did not hold Article 2558a unconstitutional 

in its ,entirety, notwithstanding what might be interpretea as 

language to the contrary ("the statute") in its opinion. Sections 

4a and 4b are not so intertwined and,intermingled with the other 

sections of the Article as to make the entire statute constitutionally 

infirm. Rather, it is our opinion that the Court meant only to hold 

Sections 4a and 4b; insofar as they were applied in the fact situation 

in Sellers, unconstitutional, to the extent that the statutory provisions deprived the owner of the fund in question his property 

without due process of law. 

Nor are we of the opinion, as you suggest, that Article 

2558a, minus Sections 4a and 4b, would be violative of Sections 

51 and 52 of Article III, or of Section 6 of Article XVI, of the 

Constitution of Texas. 

Therefore, your first question is answered in the negative. 

Our answer to your 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 oft such reimbursement to counties shall be set by the trial court having jurisdiction 

of the cause of action in which the trust fund was established. 

Our answer to your third question is that the holding in 

the Sellers case in no way invalidates or has any effect o,n the 

depository contract dated March 30, 1971, and executed by and between the Houston National Bank and Harris County, inasmuch as 

the provisions of Article 2558a relating to this depository contract remain in full force and effect. 

Your fourth question asks whether Article 1656a was also 

declared by Sellers to be unconstitutional in its entirety. Nowhere 

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

in the Sellers opinion is that Article declared unconstitutional. 

However, we are of the opinion that the portion of Article 1656a 

reading "and draw interest for the benefit of the county", underscored supra, is of doubtful constitutionality in light of the 

court's statements concerning Sections 4a and 4b of Article 2558a. 

In light of the Sellers holding , such portion of Article 1656a must 

be read to provide that the special fund,shall draw interest for 

the benefit of the county to the extent that a reasonable fee to 

compensate the county for its accounting and administrative expenses incurred in handling 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 to your fifth question is that all of Article 

1656a remains valid and in full force and effect, but subject to 

the change as to apportionment of the accrued interest mentioned 

in our answer to your question four immediately preceding. 

The answer to your sixth question is that no portions of 

Article 165613, Vernon's Civil Statutes, are affected by Sellers. 

Inasmuch as your question number seven is predicated on 

an affirmative'answer to your questions one and four, and inasmuch 

as we have answered both of those questions in the negative, it is 

not necessary for us to consider your seventh question. 

The answer to the first part of your eighth question is 

that the Harris 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 

in handling the trust fund. 

The answer to the second part of your eighth question is 

that such fee retained and accepted by the Harris County District 

Clerk is to be received, reported and accounted for as all other 

statutory fees of his office. 

SUMMARY 

(1) Pursuant to Articles 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 to be 

determined by him to compensate the county 

for its accounting and administrative expenses 

incurred in handling the fund. 

(2) Article 2558a was not declared unconstitutional in its entirety by the Supreme 

Court of Texas in Sellers v. Harris County, 

S.W.Zd (Cause No. B-2892, May 31, 

1972); rather, only Sections 4a and 4b of 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 in question his property without due process of law. 

(3) The Sellers case has no effect on the 

presently existing depository contract by and 

between Harris County and the Houston National 

Bank. 

(4) Article 1656a was not declared unconstitutional by the Sellers case, but the portion 

thereof reading "and draw interest for the benefit 

of the county" must be read in light of the 

Sellers holding. 

(5) No portions of Article 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 

in paragraph (1) hereinabove, and such fee is to 

be received, reported and accounted for as other 

statutory fees of his office. 

Ver& ruly yours, 

C. MARTIN 

ey General of Texas 

Prepared by Austin C. Bray, Jr. 

Assistant Attorney General 

-5850- 
’ 

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 

-5851-