THEATORNEY GENERAL OF TEXAS

February 13, 1939

Hon. CliffordBralg Dlstrfct.~Attotineg~: .'..., ~.: ~ '- :,~:,,: .~ ~. ; .'~ Pampa, Texas "' .~.~ ".
Dear SLr: OpinionNo. 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 statedquestion has been receivedby 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~ecabh courtcost depositsplacedwith heti~ in her officialcapacity as Dtptrlct Clerk; the total sum convertedbeing approxlmat&ly

$500.00,about half of which has been replaced in her officialfunds. I vould ,-appreciate

being advisedWhether this Is a vlolatlon of our penal code and If so what article should prosecution proceedunder?.
"Foryour lnfortitlon, the District C.lerk of Gray County.1~paid on the salary.basis and all fees of officeare payableby 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 containinga populationof less than one hundred and ninety thousand (190,000)Inhabitantsaccordlng to the last precedingFederal Censusuhereln the county or.preolnctofficersare compensated on a salarybinsis

under~theprovisionsof this Act, there shall be createda fund to be known as the "Offictirsl

Salary Fund of colinty, Texas.' Such fund shall be kept separateand. apart from all other county funds, and shall be held and disbursedfor the purpose of paying the salariesof officersand the salariesof dep-. -_._

Hon. CliffordBraly, February 13, 1939, Page 2 O-325

utles, assistantsand clerks of orfloerswho are drawing a salary from said fund under the provlslons of this Act, and to pay the authorizedexpenses and their offices. Such fund shallbe deposited In the countydepositoryand shall be protectedto 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~feesand commissions which are permltted by law to be assessedand collectedfor all officialserviceperformedby them. As and when such fees are collectedthey shall be deposited In the Officers'Salary Fund, or funds provided In this Act. In event the Commissioners' court finds that the failure to collectany fee or commlsalon

was due to neglect on the part of the officer chargedwith 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 Itemizedstatementof 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 officerwas guilty of negllgence,which time for hearing shall beat least ten days subsequentto the date of notice. Uni less an officer is charged by law with the responsibilityof collectingfees, the Commlsslonera' Court shall not In any event make any deductions from the authorizedsalary of such officer." Article 95 of the Penal Code reads as follows: "If any officer of any county, city or town, or any person employedby such officer,shall fraudulentlytake, misapply, or convert to hiB own use any money, property or'otherthlng of vaIue beloriglngtosuch 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-toany person know~lng

that he la not entitled to receive It, he shall be confined In the penitentiarynot lessHon. 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 possessionand 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, ~1ssubject 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