E Y 

### GENEJune 6, 1962

Mr. Jack Fields CountyAttorney Calhoun County Port Lavaca, Texas

Dear Mr. Fields: Opinion No. W-1347

Re: Whether it is now too late for the Board of Navigation Commissioners of the Calhoun County Navigation District to advertise for a separate depository for the sole purpose of depositing its tax funds and related question.

You request our opinion on whether It is now too late for the Board of Navigation Commissionersof the Calhoun County Navigation District to advertise for a separatedepository for the solepurpose of depositing its tax funds and a related question.

A summary of the relevant facts show that the depository for the navigation districtwas selected in 1955 by the navigation commissioners. Additionallyand thereafter funds received from revenue bonds supportedby a tonnage agreement and federal funds for construction of the Matagorda Ship Channel also have been placed in a depository selectedby the Navigation Commissioners. The question concerns the depository for the tax funds, as in the selectionof the depository for the funds from the revenue bonds no provisionwas made concerningthe deposit of the tax funds. Further the Commissioners'Court of Calhoun Countyhas not made any provision for the deposit of said funds and there are no bonds,warrants or other indebtednessto be securedby the taxes.

The Calhoun CountyNavigation Districtwas created by Senate Bill 302, Acts of the 53rd Legislature, 1953, Chapter 195page 535. In its creation‘itwas authorized to exercise all of the rights,privileges and functions of a Navigation District createdunder the authority of Chapter 9, Title 128, Vernon's Civil Statutes of Texas, containingArticles 8198 through 8263k,Vernon's Civil Statutes. Within Chapterg,Title 128 there are Articles 8244 and 8244a pertaining to the selection of depositories.Mr. Jack Fields, page 2 (WW-1347)

Article 8244,Vernon's Civil Statutes, states as follows:

"Thenavigationand canal commissioners of all navigationdistricts,whether createdpursuant to Section 52 of Article 3 or Section 59 of Article 16 of the Constitution, shall select
a depository or depositories for such district under the same provisionsas are now or may hereafterbe providedby law for the selection of the depository for the counties in this State, The navigationand canal commissioners in the selectionof depositories shall act in the same capacity and perform the same duties as is incumbent upon the county judge and the members of the county commlssionerstcourt in the selection of the countydepository. Such depository
or depositories selected or to be selected for such navigationdistrict shallhave all the powers and duties in the execution of a depository bond or bonds and/or tn the pledging of collateral in lieu of or in addition to a personal surety
or surety companybond as now providedby law or as may be providedby law in the selection of county depositories. When such depository or depositorieshave given bond or bonds as provided by law and the same have been approved by the navigationand canal commission, the county treasurer shallbe req~uired to give only s:jch bond as the navigationand canal commissioners may require."

Article 8244a,Vernon's Civil Statutes, states in part:
"Section 1. This Act shall apply to all navigationdistricts heretofore or hereafter created under the provisions of Chapter 5, Acts 39th L,gislature,Regular Session, 1925, as originally enacted or as subsequentlyamended
or as hereafter amended, hereinafter referred to as 'Districts'. The term 'revenues'as used herein shall include all revenues, income, moneys, funds, or incrementwhich,n:ay grow out of the ownershipand operation of a District's improvementsand facilities,but moneys derived from taxation are specifically excluded fromMr. Jack Fields, page 3 (1W-1347)

said term and this Act shallhave no application to tax funds." (h'mphasis added)

It can be seen that Article 8244a does not apply to money derived from taxation; thereforeArticle 8244 applies and we must go to the statutesrelating to the selection of county depositories. Provisionsregulating the selection of countydepositoriesare found in Articles 2544 through 2558a, Vernon's Civil Statutes.

Article 2544,Vernon's Civil Statutes,provides:

"The CommissionersCourt of each co:lntyis hereby authorized and required at the Febr::ary iiegular

Term thereof next following each general election to enter into a contractwith any banking corporation,association or individualbanker in such county for the depositing of the public funds of such county in suchbank or banks. Notice that such contractswill be made by the Commissioners Court shallbe publishedby and over the
name of the County Judge, once each week for at least twenty (20)days before the commencement of such term in some newspaper published in said county; and If no newspaperbe published therein, then in any newspaperpublished in the nearest county. In addition thereto, notice shallbe publishedby posting same at the courthousedoor of said county."
This has been inter reted E in Cave vLMontgomery, 274 S.W.2d 855, 856 (Civ.App. 195 )as meaning:

II

. . .The law, in effect, requires the Commissioners Court of the county to select a county depository every two years at its regular February term following each general election,as soon thereafter
as wisdom, prudence and prevailing conditionswill justify such action.

. . .’

Article 2555,Vernon's Civil Statutes,provides:

"If for any reason, no selection of a depositorybe made at the time provided by law, the CommissionersCourt may at any subsequent time a:?tertwenty (201days1notice select a depository or depositories in theMr. Jack Fields, page 4 (WW-1347)

manner provided for such selectionat the regular time; and the depository or depositories so selected shall remain the depository
or depositoriesuntil the next regular time for selectinga depository, unless the order selecting and naming such depositorybe revoked for lawful reasons."
Therefore, the Board of Navigation Commissioners is authorized to receivebids and go about the selection of
a depository just as if theywere selecting it at the regular time. It Is the opinion of this office that this Article applieswhere the Board of Navigation Commissionershave not advertised to receivebids. Therefore,your first question is answered in the affirmative. The said Board may now by following the requirements of Article 2555,Vernon's Civil Statutes, select a new depository.

The answer to your second question, i.e.,whether the funds may be withdrawn from the bank in which the funds
are presently on deposit, in the event another bank is then selectedas the depository, is also In the affirmative. The law requires the selectionof a depository every two years. Article 2544,Vernon's Civil Statutes, and Cave.v. Montgomery, supra.
"Publicofficers are but agents whose authority is defined and limitedby the law and therefore known to all persons dealing with them. Their acts beyond their lawful powers are ineffectual to bind the public which thev reoresent. and their neelect and lathes can seidom affect public rights." Hale County, Texas v. American Indemnity, b3 F2d 2'r'5

(1933)

.
It is our opinion that merely allowing the funds to stay in a depository after the time for the new selectiondoes not estop the navigation commissioners fromwithdrawing the fiends. Since Article 2555,Vernon's Civil Statutes,,authorizesthe selection of a depository after the time when the selection is required by law to be made, then surely it is reasonable to assume that the commissionershave the authority towithdraw the funds and re-deposit them in the depository that they have been authorized to select. Therefore, it is the opinion of this office that the fY;nds

may be withdrawn from the present depository and deposited in the newly selecteddepository, assuming the statutes relating to bonds and approval of suchbonds are followed.Mr. Jack Fields, Page 5 (W'N-1347)

SUMMARY

The Board of Navigation Commissioners is authorizedby Article 2555, Vernonrs Civil Statutes, to advertise for a depository of its tax fund where such a selection has not been made since 1955.

The Board of Navigation Commissionersof Calhoun NavigationDistrict may withdraw the tax funds from the present depository and deposit them In whatever qualifying depository It selects.

WILL~WILSON Attorney General of Texas

JHH:mkh

APPROVED: OPINION COMMITTEE

W. V. Geppert, Chairman Arthur Sandlln Robert S&field Elmer McVey Bill Allen

REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore