February 18, 1987 

Eonorable Barry L. Macha Opinion No. JM-632 

Criminal District Attorney . 

Courthouse Re: Disposition of interest earned 

Wichita Falls, Texas 76301 on "hot check" fund administered by 

a criminal district attorney 

Dear Mr. Macha: 

Interest generated by the deposit of county money is deposited in 

the county treasury pursuant to articles 1709 and 1709a. V.T.C.S., the 

latter of which specifically provides that "[sluch deposit of funds in 

the county treasury shall not 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 criminal district 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 

deposit of the money 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 created by article 53.08 do 

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's general revenue fund. 

Subsection (e) of article 53.08 of the Code of Criminal Procedure 

sets forth the following: 

(e) Fees collected under this article shall be 

deposited in the county treasury in a special fund 

to be administered by the county 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's office. but in no event may the county 

attorney, district attorney, or criminal district 

attorney supplement his or her own salary from this 

fund. Nothing in this Act shall be construed to 

decrease the total salaries, expenses, and 

allowances which a prosecuting attorney's office is 

receiving at the time this Act takes effect. 

p. 2860 
Eonorable Barry L. Macha - Page 2 (JM-632) 

Opinions issued by this office consistently have maintained that 

interest earned by the monies deposited by political subdivisions and 

held in trust becomes part of the principal and, consequently, part of 

the money, that generated the interest. See Attorney 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 

Opinions MW-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 administered by 

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 the benefit 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 

governed by a trustee or by any public 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., the banking franchise tax, 

see articleT66e, (a). (d), V.T.C.S.. 

Etion 205.03, Alto. Bev. Code. 

and the mixed 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 language does not impose any additional 

fiduciary duty on the administering attorney over and above that which 

normally devolves upon 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. 

p. 2861 
Honorable Barry L. Macha - Page 3 (JM-632) 

See Attorney General Opinion JM-313 (1985). 

Irking 

But the language so 

the funds differs in no material way from language 

typically found in the Appropriations Act directing the expenditure of 

state funds. 

And finally, article 53.08 does not specify that the funds be 

held for a specific or identifiable group of individuals or 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 specifies only that the funds are 

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); 

Attorney General Letter Advisory No. 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 to be credited with interest earned by deposit of its 

monies: article 1709, V.T.C.S., requires that such interest be 

credited to the general revenue funds of the respective counties. 

SUMMARY 

The interest earned by the deposit of money 

received pursuant 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. 

JACK HIGETOWRR 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

p. 2862 
Eonorable Barry L. Macha - Page 4 (JM-632) 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Jim Moellinger 

Assistant Attorney General 

p. 2863