.~UNTIN. 

### T=NxAN 78711
December 3, 1973 The Honorable Bill Lofland CountyAttorney Rockwall, Texas 75087 Opinion No. H- 171 Re: Procedure to be followed in payment ofclaims Dear Mr. Lofland: against counties Your letter requesting our opinion advises thatRockwall County has no auditor and, in the past, has followed the procedure ofhaving bills filed with the County Clerk and submitted to the Commissioners Court for approval. Ifapproved, a scrip orwarrant was issued bythe County Clerk and presented the County Treasurer for payment. The questions you have submitted tous are:

“What is the proper and legal administrative procedure to follow in Rockwall County, Texas, in the presentment and payment of bills and debts incurred by each of the county commissioner’s in the performance of their duties as commissioners?” “What is the proper and legal procedure tofollow in Rockwall County, Texas, in the presentment and payment of all other bills and debts in theoperation ofthe county business? ” Your request is prompted by a memorandum and a notice issued and published bythe County Treasurer. The memorandum provides:

“Each county treasurer shall keep awell-bound book in which he shall register all claims against his county in theElder ofpresentation, and if more than one is presented at the same time he shall register them in the order of their date. He shall pay no such claim or any part thereof. nor shall the same. or any part thereof, be received byany

p. 702. .

The Honorable Bill Iafland, page 2 (H-171)

officer in payment of any indebtedness to the county until it has been duly registered in accordance with the provisions ofthis title. All claims in each class shall bepaid inthe order in which they are registered.

“In order to comply with the above statute, wewish to advise the office holders of Rockwall County thatall claims and or bills will be registered inthe office ofthe County Treasurer on the date that such claims are received. No claims and or bills will be paid bythe County Treasurer unless registered in accordance withthis statute. If there are any questions please feel free to contact the County Treasurer’s office. This change will be effective Tuesday, September 11. 1973.” The notice, apparently mailed to persons and firms doing business with the county commissioners, provides:

“The County Treasurers Office is making an effort to comply with thelaws of our State. In order tocomply with the lawwe needyour co-operation. All claims, bills and accounts against Rockwall County must be registered in the Office’of the County Treasurer on the date received. “Please mail all your claims to the County Treasurer. This will simplify our new procedure and enable us to comply withthelaw concerning the County andyour claim. “Please make sure thatall invoices are signed by the person receiving the merchandise. This will expedite the processing ofyour claim. No claim will be paid unless it has been registered with the County Treasurer. ” Statutes having todowith the creation ofthe office ofcounty treasurer andhis functions andduties are contained in Title 36, Articlml703 to 1714, V. T. C.S. Those having todo with county finances, other thanthose relating to the county auditor, are found as Chapter 1of Title 34, Articles 1607 to 1644d. V. T. C.S.

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The Honorable Bill Lofland, page 3 (H-171)

In 1971, the Legislature expressly amended Article 1709 of the Statutea, defining theduties of the County Treasurer, and adopted whrt has been codified as Article 17090. V. T. C.S., dealing with the same subject matter. (Acts 1971, 62nd Leg., R.S., ch. 467, p. 1654). Although it did not expressly amend or repeal statutes ir Title 34, County Finances, theAct had the effect of gathering into one article all of the statutes bearing upon thefunctions and duties ofthe Treasurer. The caption of the Act is: “An Act amending Article 1709. Revised Civil

Statutes of Texas, 1925, as amended, providing for the receiving, safekeeping anddisbursing of all moneys belonging to the county by the County Treasurer; prescribing andclarifying the duties ofthe County Treasurer pertaining thereto; making said duties applicable to each County Treasurer ofthe State: making them chief custodians ofcounty moneys andliable for any willful dereliction ofduty or misuse offunds; pertaining toduties of other officers with responsibilities related totcounty money: providing a severability clause; pr0viding.a clarifying clause: and declaring an emergency. I’ Section 7 oftheAct, the so-called “clarifying clause’
.’ states:

“The need to clarify the receiving. safekeeping and disbursing of county moneys and to prescribe the duties of County Treasurers in the handling of moneys belonging to the counties create an emergency. . . . ” Article 1709, as amended, provides that the County Treasurer, “as chief custodian of countyfinances” is to receive all moneys belonging to the county from all sources. is to keep an account for them. is topayand apply or disburse them “in such manner as the Commissioners Court may require or direct.
. . .‘I Section 2ofArticle 1709a deals with the receipt offunds by the Treasurer. Section 3has to dowith their safekeeping. Section 4 deals with the disbursep. 784. .

The Honorable Bill Lofland, page 4 (H-171)

ment of county fundr. Itprovides generally thatthe County Treasurer

“shall disburse all moneys belonging tothe county, for whatever purpose they may be claimed, and shall pay and apply the same as required by law. No money shall be expended or withdrawn from tirecounty treasury except by checks or warrants drawn onthe county . . . .‘I The detailed provisions of 54 are: (a) The treasurer is required toenter’leach

claim”in a bound register stating the class, the name ofthe payee and the number ofthe claim.

(b) The treasurer may pay noclaim until it has been duly registered andall claims in each class are tobe paid in the order inwhich they are registered. Section 4(c) applies to counties having a county auditor and is not applicable to RockwallCounty. Section~4(d) deals with warrants and requires the treasurer, upon presentation to him of “any warrant, check, voucher or order drawn bythe proper authority” if there are sufficient funds to paythewarrant in the account against which it is drawn. to endorse uponit his order to pay it. The first paragraph of the memorandum issued by your County Treasurer is Article 1625, V. T. C.S., verbatim. And see Article 1709a. 54(b). The notice which wehave quoted above would indicate that the County Treasurer interprets the statutory language to mean thathe is toregister claims, bills andaccounts before they have been approved by any other county officer. We believe thathe has misconstrued the statutory language. Article 1713, V. T.C.S., provides that the County Treasurer shall not pay any money out of the County Treasury except i4 pursuance of a certificate or warrant
“from some officer authorized by law to issue the same.” It is our opinion that the Treasurer as stated in Article 1709, as amended in 1971, is a custodian. He is to receive moneys belonging to the County, to keep and account for them. andto disburse them “in such manner as the Commissioners Court may require

p. 785. .

. The Honorable Bill Lofland, page 5 (H-171)

or direct. ” The duties imposed upon the Treasurer by this Article and others we have cited herein, are, in our opinion, ministerial only and require the exercise of no discretion. The County Commissioners and their court, onthe other hand, are given the express authority andduty to “[a]udit and settle all accounts against the county and direct their payment. ” Article 2351, Q10, V. T.C.S. Without the approval of the County Commissioners, the issuance d a countywarrant is in violation of the statutory duties of the Treasurer. Padgett v. Young County, 204 S.W. 1046 (Tex. Civ. App., Ft. Worth, 1918, err.dis’m., 229 S.W. 459 (Tex. 1921); Gussett v. Nueces County, 235 S.W. 857 (Tex. 1921); Denman v. Coffee, 91S.W. 800 (Tex. Civ.App., 1906). It is our opinion, therefore, thatthe proper procedure to befollowed with all claims against the county, other thanjury scrip and scrip issued for feeding jurors (see Article 2122, V. T. C.S.) is for any claim, bill or account for any expense or indebtedness of the camty tobe submitted to the Commissioners Court for its approval. If it is approved, a warrant should be drawn by the county clerk and submitted to the County Treasurer for his endorsement (Article 25541. It is at that time that claims should be placed uponthe register maintained by the County Treasurer in the order oftheir date. SUMMARY The County Treasurer is a custodian offunds and has noauthority to approve or disapprove claims presented for payment. A claim. approved bythe proper county authorities, when presented to the Treasurer, should be registered and paid according to date. Iffunds are unavailable, claims should be paid in the order in which they are registered as funds do become available. Very truly yours,

JOHN L, HILL Attorney General ofTexas

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The Honorable Bill Lofland. page 6 (H-171)

APPROVED:

DAVID M. KENDALL, Chairman Opinion Committee

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