## EEEATTOWNEY GENERAL OFTEXAS

Hon. William W. Day OpinionNo. M-592 CountyAttorney Calhoun County Re: Authority ofWest Side Courthouse Navigation District in Port Lavaca, Texas 77979 Calhoun County to use an out-of-countydepository when there are two banks in such county, and reDear Mr. Day: lated questions.

In your letter requesting an opinion from this office, you submit the following facts which we quote as follows:

"Thereare two banks in the County of Calhoun--theFirst National Bank and the First State Bank and Trust Company. The First National Bank was the successfulbidder for the depository for Calhoun County.
"TheWest Side Navigation District operates In Calhoun County and Is a governingbody with its principal office in Calhoun County and all of its commissionersare required to be residents of Calhoun County. The West Side Navigation District in the past years has beenusing an out of countybank as its depository. The First National Bank has presentedme with a request that theWest Side Navigation District be informedby my office that their depository is the same as tht County's unless they wish to take separatebids.
With regard to these facts you submit the following questions:
"1

. Can theWest Side Navigation District use an out of county depositorywhen we have two banks In the County?

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"2. Must theWest SideNavigation District, if they do not let their depository out for bids, use the same depository as Calhoun County?"
The statuteswhich pertain to the selection of depositories by navigationdistricts are Articles 8221, 8244, 824&a and 8263e, Section 40, Vernon's Civil Statutes. These statutes generally provide that the selection of depositories by navigation districts shallbe, where applicable, in accordancewith the provisions of the statutes relating to county depositories. The matter of the selection of county depositories is governed by Articles 2544-2558a,Vernon's Civil Statutes, With respect to these statutes, It was statedby the Court in Cave v. Montgomery, 274 S.W.2d 855 (Tex.Civ.App.1954, no writ) at page &b the following:I,

. . .The law, in effect, requires the CommissionersCourt of a county to select a countydepository every two years at its regular February term following each general election, or as soon thereafter as wisdom, prudence and prevailing conditionswill justify such action. If a countyhas no bank, or no suitablebank, within its limits, the Court may negotiate with one or more banks In adjoining counties to be Its depository and may under such circumstancesexercise its sound judicialdiscretion in selecting its county depository and seeing that its county funds are lawfully secured. Hurley v. Citizens' Nat. Bank of Sour Lake, Tex.Civ.App., 229 S.W. 663; Hurley v. Camp, Tex.Civ.App., 234 S.W. 577; Coffee v. Borger State Bank, Tex.Civ.App. 38 S.W.2d 187. If the CommissionersCourt of a county receives no applications for a county depository at Its regular February term or if all applications are declined by the Court, the Court may, as provided for in Article 2550, enter into a pledge contractwith one or more banks in the county or in an adjoining county to be its county depository, provided its funds are there secured as required by law, in which event no further notice is required."

In exercising its discretion in the selection of a bank as the county depository, the Commissioner's Court’s decision is

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final In the absence of a gross abuse of suchdiscretion. Citizens State Bank of Roby v.McCain, 274 S.W.2d 184 (Tex. Civ.App. lY54, no writ).

On the basis of the foregoingauthorities,you are advised in answer to your first question that the West Side Calhoun CountyNavigation Districtmay, in its discretion, designate an out-of-countydepository in an adjoining county If the statutoryprocedure for the selection of countydepositories has been followed.

As previouslynoted, the selection of a county deposltory is regulated by statute. Article 2544,Vernon's Civil Statutes, provides as follows:

"The CommissionersCourt of each county is hereby authorized and required at the February Regular Term thereof next following each general election to enter into a contractwith any banking corporation,association or individualbanker In such county for the depositing of the public funds of such county in suchbank or banks. Notice that such contractswill be made by the Commissioners Court shall be published by and over the name of the County Judge, once each week for at least twenty (20)days before the commencementof such term in some newspaper published in said county; and if no newspaperbe published therein, then in any newspaperpublished in the nearest county. In addition thereto, notice shall be published by po;ting same at the courthousedoor of said county. Consequently, in answer to your second question,you are advised that if the West Side Calhoun CountyNavigation Dlstrict designated an out-of-countydepositorywithout complying with the notice provisions of Article 25514, Vernon's Civil Statutes, and the other applicable statutespertaining to the selection of a county depository, such designationwould be invalid. Nevertheless,
we find no authority which would require theWest Side Calhoun CountyNavigation District to designate the same depository as Calhoun County.
SUMMARY

The West Side Calhoun CountyNavigation Districtmay, in its discretion, designate an

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out-of-countydepository In an adjoining county if the statutoryprocedure for the selectionof county depositorieshas been followed.
If theWest Side Calhoun CountyNavigation District designated a use of countydepositories without cornlying with the notice provisions of Article 25 4, Vernon's Civil Statutes,and the

sp other applicable statutespertaining to the selectionof a county depository, such deslgnatlon would be Invalid. Nevertheless,no authority is foundwhich would require the West Side Calhoun CountyNavigation District to designate the same depository as Calhoun

Preparedby Ivan R. Williams, Jr. AssistantAttorney General

APPROVED: OPINION COMMITTEE

Kerns Taylor, Chairman W. E. Allen, Acting Co-Chairman Dan Green Jimmy L. White Fisher A. Tyler Sarah Phillips

MEADE F. GRIFFIN Staff Legal Assistant

NOLA WRITE First Assistant

ALFRED WALKER Executive Assistant C. tiRT-IR General of Texas

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