Honorable Martin Elchelberger Opinion No. M-33 

District Attorney 

McLennan County Courthouse Re: Whether the Commissioners 

Waco, Texas Court of McLennan County 

can consider a bid for 

county depository accompanied by a cashier’s 

oheck, but not a certified 

check, as 

t 

rovlded for in 

Article 25 5, V.C.S., and 

Dear Mr. Elchelberger: related questions. 

You have requested the opinion of thla office regarding the above question , and in this connection you have 

submitted the following facts: 

“Pursuant to advertisement for bide for 

County depository purauant to Article 2544, 

V.A.C.S., the County Commissioners Court of 

McLennan County met on the first day of Its 

term on February 13, 1967. Bids from a 

number of banks were received, and opened, 

prior to 1O:OO A.M. on aald date, in public 

meeting. Only two of said bids were accompanied by a certified check, as provlded 

by Article 2545, V.A.C.S. Theae uere the 

bide of Westvlew National Bank and The Flrrtt’ 

National Bank of Waco, the present depository. 

The bid of Weatvlew National Bank did not 

contain a statement showing the financial 

condition of the bank, a8 provided for by said 

article, but a written statement was furnished by We&view National Bank during that 

day. The bids of the other banks, Including 

The Citizens National Bank of Waco and the 

National City Bank of Waco were accompanied 

by cashler’a checks rather than certlfled checks. 

After discussion of the bids, the Commissioners 

did not officially adjourn the meeting, and 

the Commissioners Court reassembled Wednesday 

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HOC. Martin Elchelbergerr Page 2 (M-33) 

morning, February 15, 1967, for further consideration oc the bids. 

"By letter dated February 13th'and delivered 

to the County Judge, The First National Bank 

of Waco,stated Its position that; as it was 

the only bank which had made a bid accompanied 

by both a certified check and a'statement of 

condltlon,~ its bid was the only bid received 

meeting the legal requirements. 

"On Tuesday, February lath, one of the 

other bidders, The Citizens National Bank of 

Waco, filed a certified check In connection 

with It& bid. 

"The Commissioners assembled on Wednesday, 

February 15th, at which time the National City 

Bank of Waco delivered to the Commissioners 

Court a certified check in connection with Its 

bid. The Court heard arguments by representatives of various banks, and, on that date, 

February 15$hr adopted by a three to one vote 

a motion to award the bid to the National City 

Bank of .Waco, as the highest bid.," 

Eased upon the foregoing fact situation, you asked 

the following questions: 

"(1) Could the Commlssloners~ Court of 

McLennan County consider a bid for County 

depository accompanied by a cashier'8 check 

but not a certified check, as provided for 

In Article 2545? 

"(2) After bids have been received and 

opened on the first day of the term of the 

Commissioners Court, as provided for In 

Articles 2545 and 2546 V.A.C*S., could the 

Commissioners Court legally consider and 

award the bid-to a bank which delivered to 

the Commissioners Court a certified check 

In connection with this bid on a day after 

the first day of said term, to wit, on 

Wednesday, February 15, 1967, prior to the 

passage of said motion? 

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I 

Hon. Martin Elchelberger, Page 3 (M-33) 

't(3) Under the above facts, can the 

Commlsaloners Court legally select the 

National City Bank of Waco as depository 

and enter Into depository contract with 

It under Article 2546 V.A.C.S. upon said 

bank's corn lying with the provisions of 

Article 25 t: 7 V.A.C.S.?" 

The selection of county depositories Is provided 

for and regulated by statute. Articles 2544-2558a, V.C.S. 

The requisites of the application of those bank8 applying 

to be deal nated as county depository are prescribed by 

Article 25 & 5 which reads In part as follows: 

II . . .aaid application ahall state the - 

amount of paid up capital stock and permanent 

surplus of said bank. . .a statement showing 

the financial condition of said bank at the 

date of said application which shall be delivered 

to the County Judge on or before the first day 

of the term of the Commissioners Court at which 

the selection of the depositories Is to be made. 

Sald application shall also be accompanied by 

a certified check for not less than one-half of 

one per cent of the county's revenue for the 

precedly year as a guarantee of good faith 

. . . . 

In Bowle County v. Farmer's Guaranty State Bank, 289 S.W. 

451 (Tex.Clv.App. 1926, error ref.) It was held that the commissioners court was without authority to select a bank as 

county depository whose bid waa accompanied by a cashier's 

check rather than a certified check. In reaching this conclusion the court reasoned that the purpose of requiring a 

certified check was to add the llablllty of someone other than 

the bidder to secure the county for damages upon the failure 

of the bidder to give bond as required by Article 2547. A 

cashier's check la drawn by a bank upon itself and binds no 

one else. Upon the authority of this case, you are advised 

that the Commissioners Court of McLennan County la not authorized to consider an application to be designated as county 

depository which Is accompanied by a cashier's check rather 

than a certified check. 

The selection of a county depository Is a matter 

which rests within the sound discretion of the commissioners 

court; It8 decision In this respect la final and will not 

- 144 - 
Hon. Martin Eichelberger, page 4 (M-33) 

be disturbed by the courts In the absence of gross abuse. 

Hurley v; Camp; 234 S.W. 577 (Tex.Civ.App. 1951, error refused); 

Hurley v. Citizens Nat. 

no history 

Bank, 229 S.W. 663 (TexXlv.App. 1921, 

(Tex.Clv.AAp. 1954, no history). 

; ,Citlzens State Bank v. McCaln, 274 S.W.2d 184 

The commissioners court is 

not required to accept any oft the applications filed; it may 

reject them all and readvertlae for bids as authorized by 

Article 2545, or, under the authority of Article 2550, It 

may designate any one or more banks within the county or 

an adjoining county. Coffee v. Eorger State Bank, 38 S.W.2d 

187 (Tex.Clv.App. 1921, no history). 

In Hurley v. Citizens Nat. Bank, supra, three banks 

submitted bids and the commissioners court selected . the . .._ bank -- ____ 

offering the lowest rate of Interest rather than-the highest. 

The decision of the commlssloners court was upheld even though 

at that time Article 2546 stated that It was the duty of the 

court to select the application offering to Day the hinhest 

in,terest rate. In Coffee v=. Borger State Ba;lki supra,-two 

banks within the county submitted applications and one bank 

within an adjoining county submitted an application. The 

court there upheld the action of the commissioners court in 

selecting the application of the out of county bank. 

The cases just cited and discussed clearly would 

sustain the selection of the National City Bank of Waco as 

the McLennan County depository If its application had been 

accompanied by a certified check rather than a cashier's 

check. Yet, the failure of the National City Bank of Waco 

and the Citizens National Bank of Waco to accompany their 

application with a certified check did not comDe1 the commisaloners court to designate the First National Bank of 

Waco as the county depository. Coffee v. Borner State Bank, 

38 S.W.2d 187 (Tex.Civ.App. 1921, no history); Hurley v. 

Citizens Nat. Bank, 229 S.W. 663 (Tex.Clv.App. 1921, no 

history). There are no facts stated In your letter of 

request which would compel us to conclude that thencornmlaaloners court abused Its discretion In allowing the 

applicants to perfect their applications by substituting a 

certified check for the cashier's check originally submitted. 

However, If either the requirement of Article 2545 that the 

application and certified check be delivered to the county 

jud e 

254 2 

on the day specified, or the requirement of Article 

that the selection of the county depository be made on 

the day there specified, be mandatory, then there was no 

room for the exercise Of discretion and the designation of 

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lion. Martin Elchelberger, page 5 (~-33) 

the commlaslonera court must be held Invalid. The answer 

to your second and third questions depends upon the mandatory 

nature of the time requirement of Articles 2545 and 2546. 

While the provisions of Article 2545 state that 

the application, statement and certified check are to be 

delivered to the county judge on or before the first day 

of the term at which the selection of the depositories la 

to be made and Article 2546 states that the applications are 

to be opened at ten,o'clock A.M. of such day and a county 

depository selected, there Is no declaration In these statutes that an application filed after such date~may not be 

considered or that the selection of a depository made upon 

some other date would be void. To this extent these statutes 

are directory and not mandatory. The general rule In conatrulng statute8 of thla nature la stated in Federal Crude Oil Co. 

v. Yount-Lee 011 Co., 122 Tex. 21, 52 S.W.2d 5b 

S.W.2d 61: 

(193 2) at 52 

"Those &ectlona which are not of the 

essence of t Ge thing to be done, but which are 

given with a view merely to the proper, orderly 

and prompt conduct of the business, and by the 

failure to obey the rights of those interested 

will not be prejudice 

regarded as mandate?? 

! 

, are not commonly to be 

and If the act la performed, 

but not In the time r In the precise mode indicated, 

It will still be sufficient, If that which Is done 

accomplishes the substantial purpose of the statute." 

The purpose of the procedures preecrlbed by the statutes 

relating to the aelection of a county depository la to secure 

to the county a safe, reeponalble depository for its funds 

with a return of Interest for the use thereof. Time Is not 

of the eaaence In the accomplishment of these ends; therefore, 

they should not be sacrificed to the strict compliance with 

the time requirements of these statutes. 

In Konecky v. City of Yoakum, 35 S.W.2d 492 (Tex. 

Clv.App. 1931) affirmed 52 S.W.2d 240 (Tex.Comm.App. 1932) 

It was contended that the designation of a city depository 

was void because the designation was made during the month 

of June Instead of July as required by Article 2559 and the 

notice of Intention was given by letter rather than publlcatlon. In upholding the designation of the city depository 

the court there stated at 35 S.W.2d 498: 

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Hon. Martin Elchelberger, page 6 (~-33) _ 

"Article 2559 provide% no penalty and Imposes 

no forfeiture In case of ai,non-compliance with Its 

literal provlslons. There Is no declaration In the 

act that, If the.deelgnatlon of a depository la 

made at a time other than at a regular meeting In 

July of eao@ year, as stated in the act, such" 

deslgnatlon.'ahould be void. . . . T he provlslona 

of the statute declaring. . .the t P me for making 

such designation. . .ls directory only and not 

mandatory. . . .men a formality Is not absolutely necessary for the observance of justice, 

but, Is Introduced to facilitate Its observance,' 

Its omission, unless there la an annulling clause 

In the law, will not annul the act." 

The statutes there under consideration are .analogous to those 

pertaining to the designation of a county depository; the 

statements of the court.ln that case apply with equal force 

to the nature of the requirements of Articles 2545 and 2546 

relating to the time within which the acts specified therein 

are to be performed. 

In our opinion, ,lt was within the discretion of 

the Commlsalonera Court of McLennan County to allow the 

Citizens National Bank of Waco and the.Natlonal City Bank of 

Waco,to replace the cashier's check which accompanied their 

reaptictlve applications with a certified check, even though 

the certlfkd check was not delivered on'the first day of 

the term at whlch.'a county depository was to be selected. 

It was also within their discretion to defer the selection 

of the dep<ory to a!dtiJr other than the first day of the 

February term. 

There are no‘ facts In your letter of request which 

show that the Commlsaloners Court of McLennan Cointy abused 

lta.dlacretlon In allowing the aubstltutlon~of the check8 In 

que~stlon or in selecting a depository on ~a day other than 

that specified by Article 2546; therefore, In answer to 

your second and third questions, you are advised that, under 

the facts presented, the commlaalonera court could, In the 

exercise of Its discretion, consider the applications of 

all four banks and select the National City Bank of Waco 

as the county depository. 

- 147 - 
Hon. Martin Elchelberger, page 7 (~-33) 

An application for a county depository 

contract may not be considered when It la 

accompanied by a cashier's check rather than 

a certified check as required by Article 2545, 

V.C.S. However, since the times within which 

the acts specified In Article 2545, V.C.S., 

and Article 2546, V.C.S., are to be performed 

are not mandatory, In the absence of facts 

which constitute an abuse of discretion, It 

18 within the discretion of the commlsslonera' 

court to allow an applicant to replace a cashier's 

check.with a certified check after the first day 

of the February term of court and award the county 

depository contract to such applicant. 

VT truly yours, 

. . 

&%e= 

C. MARTIN 

General of Texas 

Prepared by W. 0. Shultz 

Assistant Attorney General 

WOS:sck 

APPROVED: 

OPINION COMMI'ITEE 

Hawthorne PhIllIps, Chairman 

W. V. Geppert, Co-Chairman 

R. L. Lattlmore 

John Reeves 

John Ranks 

Ralph Rash 

Qordon Caaa 

STAFF LEGAL ASSISTANT 

A.. J. CARUBBI, JR. 

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