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### TEE ATTORNEY GENERAL OF TEXAS

January 30, 1990

Mr. Pasco Parker OpinionNo. ~~-1137 Collin CountyAuditor 210 South McDonald Street Re: Whether a county auditor I&Kinney, Texas 75069 may prescribe a weekly revenue reporting formatwhich requires certification by an elected official (RQ-1760)

DearMr. Parker:

You ask whether a county auditor may prescribe a weekly revenue reporting formatwhich requires the notarized signature of elected county officials. Your question is * 0 promptedby an order of the commissionerscourt of Collin

County adopted at the request of the county auditor. The order requiresweekly remittancesof collectionsmade by the county tax assessor-collector. The order also authorizes the aud.itor

to prepare a weekly reporting formatpursuant to sections 112;OOl and 114.003of the Local Government Code.

Your letter suggeststhat the order of the commissioners courtwas adoptedpursuant to section 31.10 of the Tax Code:

(a) Eachmonth the collector of taxes for

a .taxingunit1 shallprepare and submit to the governing body of the unit a written reportmade under oath accounting for all taxes collected for the unit during the precedingmonth. Reports of collectionsmade in the months of October throughJanuary are due on the 25th day of the month following the month that is the subject of the report. Reports of collections made in all other

1. A county is included in the definition of the term
P "taxingunit." Tax Code 5 1.04(12).

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months are due on the 15th day of the month followingthemonth that is the subject of the report. A collector for more than one taxing unit may prepare one report accounting for taxes collected for all units, and he may submit a certified copy of the report as his monthly report to the governingbody of each unit.
(b) The collector for a taxing unit shall prepare and submit to the governingbody of the unit an annual reportmade under oath accounting for a.11 taxes of the unit collected or delinquent on property taxed by the unit during the preceding 12-month period.

. . . (c) - * .[A]t leastmonthly the collector for a taxing unit shall deposit in the unit's depository all taxes collected for the unit. The governing body of a unit may require deposits to be mademore frequently.

The language of subsection (c)would appear to grant the commissioners court the authority to adopt the order requiring the county tax assessor-collectorto make weekly remittances of tax collections. However, a separate statute appears to specificallyaddress the duty of the county tax asse'ssor-collector to make deposits of tax collections in a manner that conflicts with section 31.10. In order to demonstrate that section 31.10 is the governingprovision, a review of the secondprovision is necessary.
Section 113.021(a) of the Local Government Code provides:

The fees, commissions, funds, and other

money belonging to a county shall be depositedwith the county treasurerby the officerwho collects themoney. The officer must deposit the money in accordancewith any applicableproceduresprescribedby or under Section 112.001 or 112.002. However. the fl cou t ta assess0 evosit the monev in accordancewith the vrocedures prescribedbv or under the Tax Code and other

-. (Emphasisadded.) laws

Section 116.113(b)of the Local GovernmentCode states:

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A county tax assessor-collector shall immediatelvdevosit in the county depository taxes collected on behalf of the state, the county, or a district or municipal subdivision of the county. The taxes remain on deposit pending the preparation and settlement of the assessor-collector'sreport
on the tax collections. (Emphasisadded.)

A familiar and well-established rule of statutory construction provides that when a general statutory provision and a specific statutory provision are in conflict, the former provision yields and the latter prevails. See 67 Tex. Jur. 3d Statutes 5 126 (1989) and
cases cited therein? see also Gov't Code § 311.026 (a special or localprovisionprevails over a general provision in the event of irreconcilable conflict). It would therefore appear that section 116.113 of the Local Government Code, giving more specific instructionsto the county tax assessor-collectorregarding the deposit of tax collections,would prevail over section 31.10 of the Tax Code as it relates to suchdeposits.

P Section 116.113,however, was enacted as part of the

nonsubstantive revision of statutes relating to local governments. Local Gov't Code 5 1.001(a). It is derived **from** formerV.T.C.S. article 2549,2which was repealed with the enactment of the LocalGovernment Code. Acts 1987, 70th Leg., ch. 149, § 49, at 1306. Section 31.10was enacted in 1979 as part of Title 1 of the Tax Code, also known as the PropertyTax Code. See Acts 1979, 66th Leg., ch. 841, § 1, at 2217. Subsections (a)(l), (c), and (d)of section 6 of the bill enacting the Property Tax Code listed the various civil statuteswhich were expresslyrepealed by the bill: article 2549was not among those statutes. Section 6(b) of the bill, though, provided the following:

All other general, local, or special laws in conflictwith thisAct are repealed to the extent of the conflict, and the failure expressly to repeal or amend any law in conflictwith this Act is not evidence of a

2. Article 2549, V.T.C.S., set out procedures for designating the countydepository and forplacing funds in P the depository.

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legislative intent that the law not be repealed.

Id. § 6(b), at 2330.

The language just quoted makes it clear that the provisions of section 31.10 of the Tax Code supersede conflictingprovisions of article 2549. The enactment of section 116.113(b)as part of the Local Government Code did not serve to revive the repealed portion of article 2549. See Gov't Code § 323.007(b) (whenrevising a statute the legislativecouncil, charged with the duty to execute the permanent statutory revision program,may not alter the sense,meaning, or effect of the statute). It is therefore clear that the commissioners courtwas authorized to adopt the order reouiring the county tax assessor-collector make weekly deposits of tax collections. The issue th,':‘ remains iswhether the county auditor may require the tax assessor-collectorto file a notarized revenue reporting form on a weekly basis.

You do not describe the content of the weekly revenue reporting format and do not disclosewhether it is intended primarily for the use of the county auditor or the commissioners court. Since the order of the commissioners court ispredicated on the authority of sections 112.001 and 114..003

of the Local Government Code,which pertain chiefly to the county auditor,we will assume that the report is intended solely for use by the auditor.

Section 112.001 of the Local Government Code provides the following:

In a countywith a population of less than 190,000, the county auditormay adopt and enforce regulations, not inconsistent with law or with a rule adopted under Section 112.003,3that the auditor considers necessary for the speedy and proper collecting, checking, and accounting of the revenues

3. Section 112.003 of the Local Government Code requires the comptrollerof public accounts to prescribe 1) forms to be used by county officials in the collection of county revenue and disbursement of funds and 2) the manner of keeping and stating the accounts of officials.

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and other funds and fees that belong to the county.
Section 114.003(a)provides:

A county official or otherperson who is requiredunder this subtitle [subtitleB of title 4 of Local Government Code chapters 111-119 and 1301 to provide a revort, statement, or other informationto the county auditor and who intentionally refuses to comply with a reasonable request of the county auditor relating to the revort, **statement,** information, commits an offense. (Emgiasisadded.)

In order to fully appreciate the import of these provisions
we must consult other sectionsof the Local Government Code relating to county financesand reporting.

Section 114.001(a) of the Local Government Code provides the following:

Each revert required under this subtitle [title4, subtitleB]must be made inwriting andmust be sworn to bv the officer making the report before an officer authorized to administer oaths. (Emphasisadded.)

The county auditor is required under section 114.002 to determine the time and manner for making reports to the auditor as requiredby subtitleB of title 4 of the Local Government Code. Section 114.001(a), however, applies to all reports requiredby subtitle B and not merely to those thatmust be submittedto the county auditor. See, e.a., Local Gov't Code 55 114.023 (countyauditor'smonthly report to commissionerscourt in a countywith population of more than 225,000), 114.024 (auditor's report to commissioners court at each regularmeeting of court), 114.025 (auditor's monthly and annual reports to commissioners court and district judges), 114.042 (reportto county clerkby officer who collects county funds), 114.044 (reportto commissioners court by officer who collects fines, jury fees, or judgments), 114.045 (districtattorney's report to county clerk relating to countymoney received since last term of district court), 114.046 (annual report of county officers compensated on fee basis), 114.061 (county treasurer's monthly **claims** report to county clerk). Likewise, section 114.001(a)would not apply to reports submitted to the commissionerscourt or county auditor under provisions of

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the Local Government Code outside of subtitle B of title 4. See, e.a. id 9 152.035(d) (mileagereimbursementto county

,d auditor or assistantsmade on basis of swornmonthly expense report).

Sections 114.001 and 114.002are to be contrasted with section 112.005 of the Local Government Code,which requires the county auditor to maintain accounts for each county officer authorized or requiredby law to receive or collect money that belongs to, or is intended for use by, the county. Subsection (c)of that provision states:

The auditor shall require each person who receivesmoney that belongs to the county to render iEmphasisadded.)statem- to the auditor.

Id. § 112.005(~).4

The distinctionbetween VVreports'l and "statements" is significantbecause reportswhich are requiredby subtitle B of title 4 of the Local Government Codemust be sworn to by the officer presenting them. 18Statements"that may be requiredby the auditorunder section 112.005, on the other hand, apparently need not be deliveredunder oath.5 There
are several reasons for this conclusion.

Other provisions of prepazation or filing of subchapter B require the "statement~.~' Section 114.041 requires a district, county, or precinct officer to keep as part of his official records a *8statementN* of the fees, commissions, costs, or amounts "earnedby the officer" or received by him as deposits for costs or trust fund deposits. Section 116.117requiresthe county depository to provide the commissionerscourt with a "detailed monthly statement"at each regular term of the court. In addition, section 114.021, entitled *'County Clerk's Revort to CommissionersCourt at Regular Term," requires the clerk to maintain and present 'Ia tabular statementI* and specifies its contents. (Emphasisadded.)

5. This factdoes not relieve the officerwho submits
a statementto the county auditor or under whose authority a statement is submitted of the obligation to ensure the accuracyand truthfulnessof the statement. See Penal Code !j37.10 (tampering with, falsification of, or unlawful destruction of a governmentalrecord).

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First,we note that the legislaturehas demonstrated that when it intendsto require county officers to provide informationunder oath, it does so expressly. See, e.a., Local Gov't Code 5 152.035(d) (county auditor's sworn monthlymileage expense report): Attorney General Opinion v-1309 (1951). Also, the fact that section 114.003 imposes
a criminalpenalty for the intentional failure of a county officer to complywith a reasonablerequest from the auditor concerninga "revert, statement,or other information" that is requiredunder subtitleB indicatesthat, simply as a matter of statutory construction, the terms and *8statement11

are not intendedto be synonymous. "report" Questions of due process would arise under section 114.003 if "statements" were required to be sworn to by the officer rendering the statementbecause section 114.001gives notice only that "reports

I1 must be deliveredunder oath. A county officer prosecutedunder section 114.003 for failing to submit a section 112.005 statement under oath could argue that section 114.003 is unconstitutionallyvague because neither it nor section 114.001qive fairwarning that such conduct is unlawful. See aenerallv Lanzettav. New Jersev, 306U.S. 451 (1939); Tex. Const. art. I, 5 10 (every citizen is entitled to know the nature of an accusationagainsthim). 0 The relevance of this distinction is demonstrated by

section 114.043 of the Local GovernmentCode,which contains the followingpertinent language:

In a countywith a population of 190,000
or more, the county auditormay require a district clerk, district attorney, county officer, or precinct officer to furnish monthly reports, annual reports, or other reports regarding any money, tax, or fee received,disbursed, or remaining on hand. In connectionwith those reports, the auditor may count the cash in the custody of the officer or verify the amount on deposit in the bank inwhich the officerhas deposited the cash for safekeeping. (Emphasisadded.)

Section 114.043confirms that the legislaturedid not intend section 112.005 statementsto be the equivalent of section 114.001reports: otherwise,therewould have been no need to enact section 114.043. Under this provision a county auditor could clearly require a county tax assessor-collectorto file reports -- which under section 114.001would have to be sworn to by the assessor-collector

-- regardingthe receipt of taxesby his office.

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Section 114.043 is equally importantbecause it reveals the legislature'sunderstanding of the nature of the county auditor'sgeneral powers. That the legislaturethought it necessary to expresslyprovide county auditors in counties with populations of 190,000 or greater the powers described in section 114.043 is significant because, like their counterparts in countieswith fewer than 190,000 inhabitants, they have the power to adopt and enforce regulations necessary for the speedy and proper collecting, checking, and accounting of county funds. Local Gov't Code g 112.002. This office has in the past .interpreted this and other grants of authority to the county auditorbroadly to permit the auditor to obtain information from county officers that is necessary to the accomplishment of the auditor's statutory duties. See. e.a JM-1099 (1989)and authorities' Attorney General Opinion cited therein. But we have also rejected attemptsby county auditors, through the use of a reporting requirement,to interfere inmatters that are left to the discretion of other county officers. See, e.a., Attorney General Opinion JM-879 (1988) (countyauditor could not requiremembers of commissionerscourtwho receive fixed monthly travel allowances to file travel documentation).

We have locatedno similar expressgrant of authority to county auditors in countieswith populations of less than 190,000. If the legislaturedeemed the general powers of the county auditor as inadequate to confer the power described in section 114.043,then we do not believe the authorityyou inquireabout may be implied from sections 112.001and 114.003 of the Local Government Code.
Accordingly,we conclude that the county auditor in a countywith a population of less than 190,000 may lrot require the county tax assessor-collector to submit notarized or swornweekly revenue reports to the auditor pursuant to sections 112.001 and 114.003 of the Local Government Code. However, we do believe that the auditor may require county officers who receivemoney belonging to the county to submit unsworn statements under sect'on 112.005 of the Local Government Code in a form and manner prescribedby the auditor. See Attorney General Opinions JM-1099 (1989);V-1309 (1951).

SUMMARY

A county auditor in a county with a population of less than 190,000 may not require the county tax assessor-collector to submit notarized or sworn weekly revenue reports to the auditor pursuant to Local

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Government Code sections 112.001and 114.003. The county auditor may require county officerswho receive money belonging to the county to submitunsworn statementsto the auditorunder section 112.005 of the Local Government Code in a form and manner prescribedby the auditor.

JIM MATTOX Attorney General of Texas

MARY KELLER FirstAssistantAttorney General

LOU **MCCREARY** ExecutiveAssistantAttorney General

JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorney General

RICK GILPIN Chairman,Opinion Committee
Preparedby SteveAragon AssistantAttorney General

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