February 18, 1987

EonorableBarryL. Macha OpinionNo. JM-632 CriminalDistrictAttorney

. Courthouse Re: Disposition of interestearned Wichita Falls,Texas 76301 on "hot check" fund administeredby
a criminaldistrict attorney

Dear Mr. Macha:

Interestgeneratedby the deposit of county money isdeposited in the county treasurypursuant to articles 1709and 1709a.V.T.C.S., the latterofwhich specificallyprovides that "[sluchdeposit of funds in the county treasury shallnot in any wise change the ownership of any fund ab deposited.

. . ." V.T.C.S. art. 1709a. 12(a). Article 53.08 of the Texas Code of Criminal Procedure authorizes a county attorney, a district attorney. or a criminaldistrict attorney to collect a fee if his office collects and processes a check whose issuance constitutes an offense under either sections 32.41, 31.03, or 31.04 of the Penal Code. You wish to know whether the interest earned by the depositof themoney in this so-called "hot check" fund accrues to the credit of the fund itself or to the credit of the county's general
revenue fund. We conclude that the funds createdby article 53.08do not bear sufficient indicia of a trust to require the accrual of any depository interest earned by the fund to be credited to the fund itself. We conclude that such interest must be credited to the county'sgeneralrevenue fund.
Subsection (e)of article 53.08 of the Code of CriminalProcedure sets forth the following:

(e) Fees collectedunder this article shallbe deposited in the county treasury in a special fund tobe administeredby thecounty attorney,district attorney, or criminal district attorney. Expenditures from this fund shall be at the sole discretion of the attorney, and may be used only to defray the salaries and expenses of the prosecutor'soffice.but inno event may the county attorney, district attorney, or criminal district attorney supplementhis or her own salary from this fund. Nothing in this Act shall be construed to decrease the total salaries, expenses, and allowanceswhich a prosecutingattorney'soffice is receivingat the time thisAct takes effect.

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Opinions issuedby this office consistentlyhave maintained that interest earned by themonies depositedby political subdivisions and held in trustbecomes part of theprincipal and, consequently,part of themoney, that generated the interest. SeeAttorney General Opinions JM-566. J&549, .I&539 (1986);JM-323, a-1, JM-306, J'M-300(1985); MU-82 (1979); E-1040 (1977); M-408 (1969). Cf. Attorney General OpinionsMW-338 (1981);H-1107 (1977). These opaons indicate that, in order to be characterized as trust funds, the funds in question should reflect, among other things, (1) that they are administeredby
a trustee or trustees or by someone "in trust"; (2) that the funds neither are granted, in this instance, to the county in its sovereign capacity nor collected for the general operation of the county, and (3) that they are to be spent and invested for specific, limited purposes and for thebenefit of a specific group of individuals.
Unlike, for example, the funds created under articles 1066c, 1118x. 1118~. 5221b-7, and 6243e. V.T.C.S. (which govern the local sales and use tax, metropolitan rapid-transit authorities, regional transportation authorities, unemployment compensation. and firefighters' relief and retirement, respectively), the funds created under article 53.08 of the Code of Criminal Procedure, are not to be governedby a trustee or by anypublic officer "in trust." The monies
are "administered by the county attorney. district attorney. or criminal district attorney." language that is in no material way different from that which reposes in the comptroller the responsibility to perform all functions incident to the administration of the bingo tax, see article 179d. 924,V.T.C.S., thebanking franchise tax, see articleT66e, (a). (d),V.T.C.S.. Etion 205.03,Alto. Bev. Code. and themixed beverage tax, see See Attorney General Opinion .I%566 (1986). Article 53.08 of the Codeof Criminal Procedure does provide that "expenditures from this fund shall be at the sole discretion of the attorney" administering the fund, see Attorney General Opinion JM-313 (1985).but this language is inten;i;rd to carve out an exception to the statutory provisions which confer such authority generally to the connnissioners court. Such languagedoes not impose any additional fiduciaryduty on the administeringattorney over and above thatwhich normally devolvesupon public officers.

It is true, of course, that article 53.08 of the Code of Criminal Procedure does not specify that the funds are granted to the county for its general operation in the way that the statutes governing the bingo tax, the banking franchise tax, and the mixed beverage tax do. See Attorney General Opinion JM-566 (1986). Rather article 53.08 specifies that expenditures from the fund

may be used only to defray the salaries and expenses of the prosecutor's office, but in no event may the county attorney, district attorney. or criminal district attorney supplement his or her owe salary from the fund.

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See Attorney General Opinion JM-313 (1985). Irking But the language so

the funds differs in no material way from language typicallyfound in theAppropriationsAct directing the expenditureof state funds.

And finally, article 53.08 does not specify that the funds be held for a specificor identifiablegroup of individualsor recipients in the way in which the statutes governing the local sales and use tax, metropolitan rapid transit authorities, regional transportation authorities, unemployment compensation. and firefighters' relief and retirement do. See Attorney General Opinions JM-539 (1986); JM-306 (1985);MW-82 (19Fj. Article 53.08 specifiesonly that the fundsare expended for particular purposes in language that, again, differs in
no material way from language typically found in the Appropriations Act directing the expenditures of state funds. See, e.g., Board of Managers of the Harris County Hospital District v. Pension Board of the Pension System for the City of Houston. 449 S.W.2d 33 (Tex. 1969); Woods V. Reilly, 218 S.W.2d 437 (Tex. 1949); Devon v. City of San Antonio, 443 S.W.td 598 (Tex. Civ. App. - Waco 1969, writ ref'd); AttorneyGeneralLetterAdvisoryNo. 5 (1973).

We conclude that the funds created pursuant to article 53.08 of the Code of Criminal Procedure do not bear sufficient indicia to warrant calling them trust funds; rather, they are more accurately denominated statutory funds. Accordingly,we conclude that such funds
are not entitled tobe creditedwith interestearnedby deposit of its monies: article 1709, V.T.C.S., requires that such interest be credited to the generalrevenue funds of the respectivecounties.

SUMMARY

The interest earned by the deposit of money receivedpursuant to article 53.08 of the Code of Criminal Procedure, the so-called "hot check" fund, most be deposited in the general reventie funds of the respective counties pursuant to article 1709.V.T.C.S.

JACKHIGETOWRR FirstAssistantAttorneyGeneral

MARY KELLER ExecutiveAssistantAttorneyGeneral

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RICK GILPIN Chairman, Opinion Committee
Prepared by JimMoellinger Assistant Attorney General

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