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: Thequestions posed byyour opinion request are as
"1. In accordance with Article 2552 and 2553 R.C.S. is it not mandatory upon the Farmers State Bankto designate aplace, persons or corporation at said county seat where a1: I checks drawn upon County Funds by the County Treasurer will be paid andalso designate 'the place at the county seat where, and the person bywhom, all deposits maybe 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. WhenCounty Treasurer, TaxCollector, County Hospital or other official deposits County Funds with the place designated at county seat bythe 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 samemanner that abank issues adeposit voucher to adepositor? 

### “3.If your answer to number twoabove is 'No', then just when, how, andwhere maythe county official discharge his responsibility for such funds? Promanadministrative standpoint wewill encounter numerous difficulties and problems if county officials are required to mail their county funds
-222-Hon. W.P. Hems, Jr., page 2 

### (C-49)

elsewhere instead of depositing themat the county seat;

. . . 8,

. . . 

### “4.

. . . should not the Commissioners tCourt obtain from the Brookshire back formal designation of Warren Loan Companysetting forth in detail the procedures which shall be followed and howand in what manner Warren Loan Companyshall discharge said responsibility? Also, should not there be filed with the Commissioners’ Court a statement bythe Farmers State Bankthat said designation is being madein conformity to Articles 2552 and 2553 R.C.S.?--this so that there should be nomisunderstanding. Doyou also not deemproper that this statement anddesignation should be over the Corporate Seal of the back, signed before anotary 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

-223-Hon. W.P.,Hems, Jr., page 

### 3 (C-49)

county, said Commissioners Court mayin its discretion require said depository to file with the county treasurer of such county astatement designating the place at said county seat where and the person bywhom, all deposits maybe received from the treasurer for such depository, andwhere andbywhomall checks will be paid, said person to be approved bythe 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 sodesignated so long as the said depository has sufficient funds to the credit of said county applicable to its payment." In construing astatute wemust look to the statute as awhole to determine the legislative intent. The caption maybe considered in arriving at the legislative intent of the statute. Texarkana &Ft. 5'1S.W.2d 284 ( ., 121 Tex. 

### 594, s. Co. v. Fine- 79Tex.Jur. 227. Statutes. &,1:183 S.W.

### -833(Tex.Civ.App; ~, - 1916);

. . Thecaption of House Xl1 

### 85, 187,ch. 103, nowcompiled as Article 2553, ' utes, reads in part as follows: -Acts 

### 1949,51.GLeg., pi' rernon's Civil Stat11

. . . providing that the Commissioners Court mayin its discretion reauire areceiving 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 areceiving and paying agent at the county seat and to require the depository to file astatement appointing such agent with the Commissioners Court. Theagent must be approved by the Commissioners Court.

Article 2553 conflicts to someextent with Article 2552, but it is awell 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, 

### 118Tex. 

### 463,16 S.W.2d 

### 1063(Tex.Comm.App. 1929); Tunstall v. Wornley 5%Tex. 476 (1881); First Nat. Bankv. Lee Countv Cotton Oil 60. 274 S.W. 

### 127(Tex.Comm.App. 19251, affirming 

### 250S.W. 

### 313;34Tex.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 Bankto designate a paying andreceiving agent at the county seat. Under Article 2553, the Commissioners Court mayrequire the depository to designate such an agent, but the exercise of this power is discretionary with the Commissioners Court. If anagent 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 madewith him. The answer to your second question is in the affirmative.

Your third question does not require ananswer since the answer to the second question is in the affirmative.

Asto your fourth question, Article 2553 gives the power to the Commissioners Court to require adepository to appoint an agent in the county seat and also gives the Commissioners Court the power to require astatement from the depository designating the agent. Thestatute 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 acounty depository designate a paying andreceiving agent at the county seat unless the Commissioners Court in the exercise of its discretion requires such designation. Thedesignated agent of adepository would assume responsibility for county funds deposited with the agent until they are received at the depository. Theform of the statement of adepository designating anagent 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

-225-‘

.

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

### 49)

APPROVED: OPINIONCOMMITTEE W.V. Geppert, Chairman Pat Bailey Paul Robertson Albert Pruitt JamesStrock APPROVED

FORTHEATTORNEY GENERAL BY: Stanton Stone

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