Hon. W. P. Herms, Jr. 

County Auditor 

Wailer County 

Hempstead, Texas 

Opinion No. C-49 

Re: Various questions concerning 

county depositories. 

Dear Mr. Herms: 

follows: 

The questions posed by your opinion request are as 

"1. In accordance with Article 2552 and 2553 

R.C.S. is it not mandatory upon the Farmers 

State Bank to designate a place, persons or 

corporation at said county seat where a 1: I checks 

drawn upon County Funds by the County Treasurer 

will be paid and also designate 'the place at 

the county seat where, and the person by whom, 

all deposits may be received from the Treasurer 

for such deuositorv' (Italics mine Article 2552 

and 2553)? If this statute is to be interpreted 

as it reads, then such designations must be 

without any restrictive qualifications, since it 

is not contemplated that funds be mailed to depository anywhere outside the county seat. 

"2. When County Treasurer, Tax Collector, County 

Hospital or other official deposits County Funds 

with the place designated at county seat by the 

Farmers State Depository Bank should not such depository, through its designated agent be required to assume the responsibility of'said funds 

at time of deposit at such designated place, and 

should not such designated place issue deposit 

voucher to depositing county official as evidence 

of deposit, in the same manner that a bank issues 

a deposit voucher to a depositor? 

“3. If your answer to number two above is 'No', 

then just when, how, and where may the county official discharge his responsibility for such funds? 

Prom an administrative standpoint we will encounter numerous difficulties and problems if county 

officials are required to mail their county funds 

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Hon. W. P. Hems, Jr., page 2 (C-49) 

elsewhere instead of depositing them at the county 

seat; . . . 

8, 

. . . 

“4. . . . should not the Commissioners t Court 

obtain from the Brookshire back formal designation of Warren Loan Company setting forth in detail the procedures which shall be followed and 

how and in what manner Warren Loan Company shall 

discharge said responsibility? Also, should not 

there be filed with the Commissioners’ Court a 

statement by the Farmers State Bank that said 

designation is being made in conformity to Articles 2552 and 2553 R.C.S.?--this so that there 

should be no misunderstanding. Do you also not 

deem proper that this statement and designation 

should be over the Corporate Seal of the back, 

signed before a notary with the affidavit that 

such person signing was so authorized to act for 

said bank?” 

Article 2552, Vernon’s Civil Statutes, reads as follows: 

“It shall be the duty of the depository or 

depositories to pay, upon presentment at the 

county seat of the county, or in the case of 

‘time deposits’ to pay upon presentment after the 

expiration of the period of notice agreed upon, 

all checks or warrants drawn by the county treasurer upon the funds of said county deposited with 

said depository or depositories, as long as such 

funds shall be in the possession of such depository subject to such checks or warrants. For 

every failure to pay such check or warrant at such 

county seat either upon presentment in case of 

‘demand deposits ’ or upon presentment after the 

expiration of the period of notice required in the 

case of ‘time deposits ’ said depository or depositories shall forfeit and pay to the holder of such 

check ten per cent (10%) of the amount thereof; 

and the Commissioners Court shall revoke the order 

creating such depository or depositories.” 

Article 2553, Vernon’s Civil Statutes, reads as follows: 

“If any depository selected by the Commissioners Court be not located at the seat of such 

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Hon. W. P., Hems, Jr., page 3 (C-49) 

county, said Commissioners Court may in its discretion require said depository to file with the 

county treasurer of such county a statement designating the place at said county seat where and 

the person by whom, all deposits may be received 

from the treasurer for such depository, and where 

and by whom all checks will be paid, said person 

to be approved by the Commissioners Court; and 

such depository shall cause every check to be 

paid upon presentation or upon presentation at 

the expiration of the period of notice in the 

case of 'time deposits' at the place so designated so long as the said depository has sufficient funds to the credit of said county applicable to its payment." 

In construing a statute we must look to the statute as 

a whole to determine the legislative intent. The caption may be 

considered in arriving at the legislative intent of the statute. 

Texarkana & Ft. 

5'1 S.W.2d 284 ( 

., 121 Tex. 594, 

s. Co. v. Fine- 

&,1:183 S.W. -833 (Tex.Civ.App; 79 Tex.Jur. 227. Statutes. 

~, - 

1916); 

. . The caption of House Xl1 85, 

187, ch. 103, now compiled as Article 2553, ' 

utes, reads in part as follows: 

-Acts 1949, 51.G Leg., pi' 

rernon's Civil Stat11 

. . . providing that the Commissioners 

Court may in its discretion reauire a receiving 

and paying agent at the county seat, and providing that said agent shall be approved by the 

Commissioners Court; . . .'I (Emphasis added). 

It is clear from the caption that the Legislature intended to make 

it discretionary with the Commissioners Court whether to require 

the depository to designate a receiving and paying agent at the 

county seat and to require the depository to file a statement appointing such agent with the Commissioners Court. The agent must 

be approved by the Commissioners Court. 

Article 2553 conflicts to some extent with Article 2552, 

but it is a well settled rule of statutory construction that when 

two statutes are "in pari materia," the older statute will be 

held to be repealed by implication to the extent of its conflict 

with the newer enactment. Townsend v. Terrell, 118 Tex. 463, 16 

S.W.2d 1063 (Tex.Comm.App. 1929); Tunstall v. Wornley 5% Tex. 

476 (1881); First Nat. Bank v. Lee Countv Cotton Oil 60. 274 

S.W. 127 (Tex.Comm.App. 19251, affirming 250 S.W. 313; 34 Tex.Jur. 

145, Statutes, Sec. 77. Since Article 2553 is the newer statute, 

it must take precedence over Article 2552. 

-224- 
Hon. W. P. Hems, Jr., page 4 (C-49) 

In answer to your first question, it is not mandatory 

upon the Farmers State Bank to designate a paying and receiving 

agent at the county seat. Under Article 2553, the Commissioners 

Court may require the depository to designate such an agent, but 

the exercise of this power is discretionary with the Commissioners Court. 

If an agent at the county seat is designated by the depository, then under the terms of Article 2553, that agent bJoUld 

be responsible for deposits of county funds made with him. The 

answer to your second question is in the affirmative. 

Your third question does not require an answer since 

the answer to the second question is in the affirmative. 

As to your fourth question, Article 2553 gives the 

power to the Commissioners Court to require a depository to appoint an agent in the county seat and also gives the Commissioners Court the power to require a statement from the depository 

designating the agent. The statute does not spell out the type 

or form of statement envisioned. It follows therefore that the 

form of the statement will be left to the sound discretion of 

the Commissioners Court. 

SUMMARY 

It is not mandatory that a county depository 

designate a paying and receiving agent at the 

county seat unless the Commissioners Court in the 

exercise of its discretion requires such designation. The designated agent of a depository would 

assume responsibility for county funds deposited 

with the agent until they are received at the depository. The form of the statement of a depository designating an agent in the county seat is 

left within the discretion of the Commissioners 

court. 

Yours very truly, 

WAGGONER CARR 

Attorney General 

JGN:wb 

B+lktfNo~~ . 

Assistant 

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‘. 

Hon. W. P. Herms, Jr., page 5 (C- 49) 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Pat Bailey 

Paul Robertson 

Albert Pruitt 

James Strock 

APPROVED FOR THE ATTORNEY GENERAL 

BY: Stanton Stone 

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