, 

TEE ATTORNEY GENERAL 

OF TEXAS 

January 30, 1990 

Mr. Pasco Parker Opinion No. ~~-1137 

Collin County Auditor 

210 South McDonald Street Re: Whether a county auditor 

I&Kinney, Texas 75069 may prescribe a weekly revenue 

reporting format which requires 

certification by an elected 

official (RQ-1760) 

Dear Mr. Parker: 

You ask whether a county auditor may prescribe a 

weekly revenue reporting format which requires the notarized 

signature of elected county officials. Your question is * 

0 prompted by an order of the commissioners court of Collin 

County adopted at the request of the county auditor. The 

order requires weekly remittances of collections made by the 

county tax assessor-collector. The order also authorizes 

the aud.itor to prepare a weekly reporting format pursuant to 

sections 112;OOl and 114.003 of the Local Government Code. 

Your letter suggests that the order of the commissioners court was adopted pursuant to section 31.10 of the 

Tax Code: 

(a) Each month the collector of taxes for 

a .taxing unit1 shall prepare and submit to 

the governing body of the unit a written 

report made under oath accounting for all 

taxes collected for the unit during the 

preceding month. Reports of collections made 

in the months of October through January 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 "taxing unit." Tax Code 5 1.04(12). 

p. 5988 
Mr. Pasco Parker - Page 2 (JM-1137) 

months are due on the 15th day of the month 

following the month 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 governing body of each 

unit. 

(b) The collector for a taxing unit shall 

prepare and submit to the governing body of 

the unit an annual report made 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 least monthly 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 made more frequently. 

The language of subsection (c) would appear to grant 

the commissioners court the authority to adopt the order 

requiring the county tax assessor-collector to make weekly 

remittances of tax collections. However, a separate statute 

appears to specifically address 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 governing provision, a 

review of the second provision 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 

deposited with the county treasurer by the 

officer who collects the money. The officer 

must deposit the money in accordance with any 

applicable procedures prescribed by or under 

Section 112.001 or 112.002. However. the 

fl cou t ta assess0 evosit 

the monev in accordance with the vrocedures 

prescribed bv or under the Tax Code and other 

-. laws (Emphasis added.) 

Section 116.113(b) of the Local Government Code states: 

p. 5989 
Mr. Pasco Parker - Page 3 (JM-1137) 

A county tax assessor-collector shall 

immediatelv devosit 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's report 

on the tax collections. (Emphasis added.) 

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 local provision prevails 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 instructions to the 

county tax assessor-collector regarding the deposit of tax 

collections, would prevail over section 31.10 of the Tax 

Code as it relates to such deposits. 

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 2549,2 which was repealed with 

the enactment of the Local Government Code. Acts 1987, 70th 

Leg., ch. 149, § 49, at 1306. Section 31.10 was enacted in 

1979 as part of Title 1 of the Tax Code, also known as the 

Property Tax 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 statutes which were expressly repealed by the bill: 

article 2549 was not among those statutes. Section 6(b) of 

the bill, though, provided the following: 

All other general, local, or special laws 

in conflict with this Act are repealed to the 

extent of the conflict, and the failure 

expressly to repeal or amend any law in 

conflict with this Act is not evidence of a 

2. Article 2549, V.T.C.S., set out procedures for 

designating the county depository and for placing funds in 

P the depository. 

p. 5990 
Mr. Pasco Parker - Page 4 (JM-1137) 

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 

conflicting provisions 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) (when revising a statute the 

legislative council, 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 court was authorized to adopt 

the order reouiring the county tax assessor-collector 

make weekly deposits of tax collections. The issue th,':‘ 

remains is whether the county auditor may require the tax 

assessor-collector to 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 disclose whether it is intended 

primarily for the use of the county auditor or the commissioners court. Since the order of the commissioners court 

is predicated 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 county with a population of less than 

190,000, the county auditor may adopt and 

enforce regulations, not inconsistent with 

law or with a rule adopted under Section 

112.003,3 that 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 comptroller of 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. 

p. 5991 
Mr. Pasco Parker - Page 5 (JM-1137) 

and other funds and fees that belong to the 

county. 

Section 114.003(a) provides: 

A county official or other person who is 

required under this subtitle [subtitle B of 

title 4 of Local Government Code chapters 

111-119 and 1301 to provide a revort, 

statement, or other information to 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. (Emgiasis added.) 

In order to fully appreciate the import of these provisions 

we must consult other sections of the Local Government Code 

relating to county finances and reporting. 

Section 114.001(a) of the Local Government Code 

provides the following: 

Each revert required under this subtitle 

[title 4, subtitle B] must be made in writing 

and must be sworn to bv the officer making 

the report before an officer authorized to 

administer oaths. (Emphasis added.) 

The county auditor is required under section 114.002 to 

determine the time and manner for making reports to the 

auditor as required by subtitle B of title 4 of the Local 

Government Code. Section 114.001(a), however, applies to 

all reports required by subtitle B and not merely to those 

that must be submitted to the county auditor. See, e.a., 

Local Gov't Code 55 114.023 (county auditor's monthly report 

to commissioners court in a county with population of more 

than 225,000), 114.024 (auditor's report to commissioners 

court at each regular meeting of court), 114.025 (auditor's 

monthly and annual reports to commissioners court and 

district judges), 114.042 (report to county clerk by officer 

who collects county funds), 114.044 (report to commissioners 

court by officer who collects fines, jury fees, or 

judgments), 114.045 (district attorney's report to county 

clerk relating to county money 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 

commissioners court or county auditor under provisions of 

p. 5992 
Mr. Pasco Parker - Page 6 (JM-1137) 

the Local Government Code outside of subtitle B of title 4. 

See, e.a. ,d id 9 152.035(d) (mileage reimbursement to county 

auditor or assistants made on basis of sworn monthly expense 

report). 

Sections 114.001 and 114.002 are 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 required by 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 

receives money that belongs to the county 

to render 

iEmphasis added.) 

statem- to the auditor. 

Id. § 112.005(~).4 

The distinction between VVreports'l and "statements" is 

significant because reports which are required by subtitle B 

of title 4 of the Local Government Code must be sworn to by 

the officer presenting them. 18Statements" that may be 

required by the auditor under section 112.005, on the other 

hand, apparently need not be delivered under 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 "earned by the officer" or 

received by him as deposits for costs or trust fund 

deposits. Section 116.117 requires the county depository to 

provide the commissioners court with a "detailed monthly 

statement" at each regular term of the court. In addition, 

section 114.021, entitled *'County Clerk's Revort to 

Commissioners Court at Regular Term," requires the clerk to 

maintain and present 'Ia tabular statementI* and specifies its 

contents. (Emphasis added.) 

5. This fact does not relieve the officer who submits 

a statement to the county auditor or under whose authority a 

statement is submitted of the obligation to ensure the 

accuracy and truthfulness of the statement. See Penal Code 

!j 37.10 (tampering with, falsification of, or unlawful 

destruction of a governmental record). 

p. 5993 
Mr. Pasco Parker - Page 7 (JM-1137) 

First, we note that the legislature has demonstrated 

that when it intends to require county officers to provide 

information under oath, it does so expressly. See, e.a., 

Local Gov't Code 5 152.035(d) (county auditor's sworn 

monthly mileage expense report): Attorney General Opinion 

v-1309 (1951). Also, the fact that section 114.003 imposes 

a criminal penalty for the intentional failure of a county 

officer to comply with a reasonable request from the auditor 

concerning a "revert, statement, or other information" that 

is required under subtitle B indicates that, simply as a 

matter of statutory construction, the terms and 

*8statement11 are not intended to 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 statement because section 114.001 gives notice only that 

"reports I1 must be delivered under oath. A county officer 

prosecuted under section 114.003 for failing to submit a 

section 112.005 statement under oath could argue that 

section 114.003 is unconstitutionally vague because neither 

it nor section 114.001 qive fair warning that such conduct 

is unlawful. See aenerallv Lanzetta v. New Jersev, 306 U.S. 

451 (1939); Tex. Const. art. I, 5 10 (every citizen is 

entitled to know the nature of an accusation against him). 0 

The relevance of this distinction is demonstrated by 

section 114.043 of the Local Government Code, which contains 

the following pertinent language: 

In a county with a population of 190,000 

or more, the county auditor may 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 connection with those reports, the auditor 

may count the cash in the custody of the 

officer or verify the amount on deposit in 

the bank in which the officer has deposited 

the cash for safekeeping. (Emphasis added.) 

Section 114.043 confirms that the legislature did not 

intend section 112.005 statements to be the equivalent of 

section 114.001 reports: otherwise, there would have been no 

need to enact section 114.043. Under this provision a 

county auditor could clearly require a county tax 

assessor-collector to file reports -- which under section 

114.001 would have to be sworn to by the assessor-collector 

-- regarding the receipt of taxes by his office. 

p. 5994 
Mr. Pasco Parker - Page 8 (JM-1137) 

Section 114.043 is equally important because it reveals 

the legislature's understanding of the nature of the county 

auditor's general powers. That the legislature thought it 

necessary to expressly provide 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 counties with 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 auditor broadly 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 attempts by county auditors, through the use 

of a reporting requirement, to interfere in matters that are 

left to the discretion of other county officers. See, e.a., 

Attorney General Opinion JM-879 (1988) (county auditor could 

not require members of commissioners court who receive fixed 

monthly travel allowances to file travel documentation). 

We have located no similar express grant of authority 

to county auditors in counties with populations of less than 

190,000. If the legislature deemed the general powers of 

the county auditor as inadequate to confer the power 

described in section 114.043, then we do not believe the 

authority you inquire about may be implied from sections 

112.001 and 114.003 of the Local Government Code. 

Accordingly, we conclude that the county auditor in a 

county with a population of less than 190,000 may lrot 

require the county tax assessor-collector to submit 

notarized or sworn weekly 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 receive money belonging to 

the county to submit unsworn statements under sect'on 

112.005 of the Local Government Code in a form and manner 

prescribed by 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 

P. 5995 
Mr. Pasco Parker - Page 9 (~~-1137) 

Government Code sections 112.001 and 114.003. 

The county auditor may require county 

officers who receive money belonging to the 

county to submit unsworn statements to the 

auditor under section 112.005 of the Local 

Government Code in a form and manner 

prescribed by the auditor. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Steve Aragon 

Assistant Attorney General 

p. 5996