THEATORNEY GENERAL 

OF TEXAS 

February 13, 1939 

Hon. Clifford Bralg 

Dlstrfct .~Attotineg~: .'..., ~.:~ '- :,~:,,: .~ ~. ; .'~ 

Pampa, Texas "' .~.~ ". 

Dear SLr: Opinion No. O-325 

Re: Is personal use of &nds received &s 

court costs by Dlstr'lct Clerk a vlolat.lon of the Penal Code? 

Your request for an oplnlon on the above stated question has been received by this office. 

Your letter reads, in part, as follows: 

"The.Distrlct.Cierk of, &his co&y, as shown 

by the &i&itor,'s tiepor$,,just:belng filed, ~&as 

used for her,~own p'&rsoi@ui~e cabh courtcost 

deposits placed with heti~ in her official capacity 

as Dtptrlct Clerk; the total sum converted being 

approxlmat&ly $500.00, about half of which has 

been replaced in her official funds. I vould 

,-appreciate being advised Whether this Is a vlolatlon of our penal code and If so what article 

should prosecution proceed under?. 

"For your lnfortitlon, the District C.lerk of 

Gray County.1~ paid on the salary.basis and all 

fees of office are payable by the District Clerk 

to the salary fund of the County." 

Section 4 and 5, Article 3912e, reads as follows: 

“Sec. 4. In all counties of this State containing a population of less than one hundred 

and ninety thousand (190,000) Inhabitants accordlng to the last preceding Federal Census uhereln 

the county or.preolnct officers are compensated 

on a salary binsis under~the provisions of this 

Act, there shall be created a fund to be known 

as the "Offictirsl Salary Fund of colinty, 

Texas. ' Such fund shall be kept separate and. 

apart from all other county funds, and shall be 

held and disbursed for the purpose of paying 

the salaries of officers and the salaries of dep- 
. -_._ 

Hon. Clifford Braly, February 13, 1939, Page 2 O-325 

utles, assistants and clerks of orfloers who are 

drawing a salary from said fund under the provlslons of this Act, and to pay the authorized expenses and their offices. Such fund shall be 

deposited In the county depository and shall be 

protected to the same extent as other county 

funds. 

"Sec. 5. It shall be the duty of all officers 

to charge and collect In the manner authorized 

by law all~fees and commissions which are permltted by law to be assessed and collected for all 

official service performed by them. As and when 

such fees are collected they shall be deposited 

In the Officers' Salary Fund, or funds provided 

In this Act. In event the Commissioners' court 

finds that the failure to collect any fee or 

commlsalon was due to neglect on the part of the 

officer charged with the responsibility of collecting same, the amount of such fee or commlsslon shall be deducted from,the salary of such 

officer. Before any such deduction Is made, 

the Commissioners' Court shall furnish such officer with an Itemized statement of the uncollected fees with which his account Is to be 

charged, and shall notify such officer of the 

time and place for a hearing on same, to aetermine whether such officer was guilty of negllgence, which time for hearing shall beat least 

ten days subsequent to the date of notice. Uni 

less an officer is charged by law with the responsibility of collecting fees, the Commlsslonera' Court shall not In any event make any deductions from the authorized salary of such officer." 

Article 95 of the Penal Code reads as follows: 

"If any officer of any county, city or town, 

or any person employed by such officer, shall 

fraudulently take, misapply, or convert to hiB 

own use any money, property or'otherthlng of 

vaIue beloriglngto such county,, clty,or town, 

that may have come into his custody or possession by virtue of his office or employment, or 

shall secret (secrete) the same with lntentto 

take, misapply or convert it to his own use/or 

shall pay or deliver the same-to any person 

know~lng that he la not entitled to receive It, 

he shall be confined In the penitentiary not less 
Hon. Clifford Braly, February 13, 1939, page 3 O-325 

than two nor more than ten years." 

The case of.Reynolds vs. State, 92 SW (2nd) 450, holds, 

among other things, that : 

'For an officer to be guilty of misapplying or 

converting public funds, runda must have come Into 

his custody or possession by vlrtue,of his office 

whdch means that he must be In actual possession 

thereof at the time of conversion or mlsappllcatlon." 

In view of the foregoing authorities, you are respectfully advised that It 15 the oplnlon of this-Department that 

when any officer of any.county, city or town, or any'person 

employed by such officer who shall fraudulently take, misapply 

or convert to his own use any money, property or other thing 

of value, belonging to such county, city or town, which Is In 

his actual possession and that has come Into his custody by 

virtue of his office or employment, or shall secrete the same 

with Intent to take, mf.sapply or convert to his own use or -- 

shall pay or deliver the same to any person knowing that he Is 

not entitled to receive It, ~1s subject to prosecution under 

Article 95 of the Penal Code... 

Trusting that the foregoing answers your Inquiry, we 

remain 

Very truly yours 

ATTORNEYGENERAL OF TEXAS 

. 

By s/Ardell Wllllsims 

Ardell Wllll~ms 

Assistant 

AW:AW:wc 

APPROW: '~ 

s/Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS