DAN MORALES 

Al-rORNEY GENERAL 

QBffice of ttp !Zlttornep @enera 

&ate of lQexas 

January 10, 1994 

Mr. S. E. Seely 

El Paso County Auditor 

Opinion No. DM-282 

Room 406, County Courthouse Buildmg 

500 East San Antonio Street 

El Paso, Texas 79901-2421 

Dear Mr. Seely: 

Re: Whether a county must maintain a 

special and separate account for cash bail 

bond Gmds that the county receives pursuant 

to article 17.02 of the Code of Criminal 

Procedure and related questions (RQ-565) 

You ask the following questions: 

1. Under the Texas Code of Criminal Proceduren Art. 17.02, 

the County reckvescashbailbondfimds. MuattheCountymaintain 

a special and separate checking account for these cash bail bond 

funds? 

2. Ifyouraaswertotheabovequestionisnegative~thencan 

the cash bail bond fimds be deposited directly into the County 

Treasury, escrowed in the general limd and invested from the general 

fund’s escrow account? If so, can the resuhing interest income be 

credited to the County’s general fimd? If not, then what would be 

the proper disposition of the intaest income? 

3. Ifyouranswertoquestionnumber 1 is-, canthe 

cash bail bond funds be invested from the special and separate 

checking account? If so, can the interest income generated by the 

investments be deposited into the County Treasury and credited to 

the County’s general tind interest income account? If the interest 

income CBMot be deposited into the County Treasury and credited to 

the general timd, then what would be the proper disposition of the 

interest income? 

4. The County deposits inmate monies in a trust fund in 

accordance with the Texas Government Code 5 50[1].014.’ Can the 

County invest these inmate trust fimd monies under its control and 

use the resulting interest income in its general fund? Footnote 

added.] 

‘You cite section 500.014 oftk Govammu chdc. TlIelegislsnlre lemlmkd suxioa 500.014 

ss seaion 501.014 of the Govcrnmcnt c& in 1991. Set Acts 1991.72d Leg., ch. 16,s 10.01(a). at 312. 

p. 1477 
Mr. S. E. Seely - Page 2 (DM-282) 

Your tirst three questions pertain to the receipt of cash bail bond funds by the 

County of El Paso (the “county”). 

which you cite, provides as follows: 

Section 17.02 of the Code of Criminal Procedure, 

A “bail2 bond” is a written undertaking entered into by the 

defendant and his sureties for the appearance of the principal therein 

before some court or magistrate to answer a crimmal accusation; 

provided, however, that the dekndant upon execution of such bail 

bond may deposit with the custodian of timds of the court in which 

the prosecution is pending current money of the United States in the 

amount of the bond in lieu of having sureties signing the same. Any 

cash funds deposited under this Article shah be receipted for by the 

officer receiving the same and shall be retimded to the defendant if 

and when the defendant complies with the conditions of his bond, 

and upon order of the court. Footnote added.] 

See a&o 22 TEX. JUt. 3d CrimiiMI Law 8 2170, at 397 (1982). In Attorney General 

Opiion JM-1162 (1990) at 2 this office considered questions mgarding the status of trust 

limds that a district clerk holds in trust until tInal disposition by a court. Our resolution of 

the issues ffire us in that opinion controls our resolution of the questions you ask 

mgading the receipt of cash in lieu of bail bonds. 

This office concluded in Attorney General Opiion JM-1162 that cash paid in lieu 

ofabailbondistobeheldintrustpursuanttochapterll7oftheL.ocalGovemment 

Code. Attorney General Opiion JM-1162 at 2. For purposes of chapter 117 of the Local 

Govemment Cod% a “trust fimd” 

is an equitable obligation under which the trustee is required to deal 

with the trust property for the benefit of the be&i&ies who have a 

vested interest in the trust funds. Any fin& fitting this dektition are 

trust 6mds and, if in the possession of the county or district clerk, 

may be deposited in the county depository for trust tlmds. 

. . . . 

We believe that any money deposited in court to satisfy the result of 

a legal proceeding or to await the result of a legal proceeding fhlls 

within the scope of m Government Code sections 117.052 and 

117.053]. 

Id. at 1 (quoting Attorney General Opinion H-183 (1973) at 4,6). 

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Mr. S. E. Seedy - Page 3 (~~-282) 

The opinion next considered whether a district clerk must deposit trust timds in 

separate accmmts or in interest-bearittg accounts. Id. at 3. It noted, initially, that chapter 

117 of the Local Gov emment Code does not expressly require a district clerk to place 

bust limds either in separate accounts or in interest-bearing accounts. Id. However, the 

clerk must comply with the instructions of the court that directed the clerk to hold the 

ftmds. Id. The opinion also noted that both the county auditor and county commissioners 

court have some discretionary authority to impose additional duties upon the. district clerk 

in regard to the trust timds. Id. For example, section 112.002 of the Local Government 

Code authorizes a county auditor to mandate certain auditing procedures, perhaps 

including a requirement that the district clerk deposit trust funds in separate accounts. Id. 

Section 117.051 of the Local Government Code authorizes a commissioners court to 

require that trust Smds be placed in “time deposits,” which, according to Attorney General 

Opinion Bvl-1162, indicates that the commissioners court may require trust funds to be 

placed in interest-bearing accounts. Id. at 3-4. 

This office also exam&d in Attorney General Opiion JIM-1 162 the question of 

whether a comty is entitled to receive any interest that accrues on fbnds the district clerk 

. . mamtams. Section 117.054(a) of the Local Government Code provides a county with a 

lightt0nceive a~patt of the interest earned on trust ibnds placed in time deposits, but the 

5 *y receive no more than is “reasonably related to the accounting and 

Wive expemes” the county has incurred in handling the funds. Id. Section 

117.054(b) authorirzes the county auditor or county treasurer to deposit the amount of 

compensation into the county’s general Smd. Id. 

Based upon Attorney General Opiion Jb-1162, we conclude that the district 

clerk may deposit into a separate accountcashpaidinlieuofabailbondifthewurtor 

mother authority, such as the county auditor, orders the clerk to do so. The district clerk 

may deposit into an interest-bearmg account cash paid in lieu of a bail bond ifthe court or 

another authority, such as the wunty wmmissioners wutt, orders the clerk to do so. If 

the district clerk deposits cash paid in lieu of a bail bond into an interest-bearing account, 

however, the county may not keep all of the accrued interest. Instead, except for a 

portion of the accrued interest that the county may keep pursuant to section 117.054 of 

the Local Government Code, the clerk must return to the depositor any interest that 

accrues on the cash. 

You also a& about the disposition of interest received on inmate monies in a trust 

fimd established in accordance with section 501.014 of the Government Code. Section 

501.014 provides in relevant part as follows: 

(a) The director of the institutional division shall take 

possession of all money that an inmate has on the inmate’s person 

when the inmate arrives at the institutional division and ah money the 

inmate receives at the department a&r arriving at the division and 

shall credit the money to a trust fimd created for the inmate. . . The 

director of the institutional division may spend money from a trust 

fund on the written order of the inmate in whose name the fund is 
Mr. S. E. Seely - Page 4 (DM-282) 

established subject to restrictions on the m established by 

law or rule. 

Section 501.014 applies only to the director of the institutional division of the Texas 

Department of Criminai Justice (the “TDCJ”). See Goti Code Q 491.001(a)(3), (5) 

(defming, for purposes of title 4, subtitle G of the Government Code, “department” and 

“institutionai division”). We have been advised by an employee of the TDCJ that money 

the director of the institutionaJ division obtains pursuant to section 501.014 is deposited 

into the TDCJ’s inmate trust fund, and that money in the TDCJ’s inmate trust fbnd does 

not accrue interest. 

Section 501.014 is, therefore, wholly inapplicable to inmates in a county jail or 

county wrrectiond facility. We note that sections 351.041(a) and 351.182 of the Local 

Government Code make the sheriff responsible for each of these wunty facilities. The 

Texas Commission on Jail Standards (the “wmmiasion”) is authorized to promulgate rules 

goveming county jails (including wunty wrrectional fhcilities) under section 351.002 of 

the Local Government Code. See u.ku 35 D. BROOKS, CXXJNTY AND SPECIAL DISTRICT 

LAW 8 20.50, at 732 (Texas Practice 1989). Regarding inmates in a county jail, the 

commission has promulgated section 265.11 of title 37 of the Texas Administmtive Code 

which provides as follows: 

If an inmate is not going to be released, the receiving officer 

shall camfidly record and store such of the inmate’s property as is 

taken from him and issue the inmate a receipt, signed by the receiving 

officer and the inmate, to be. kept in the. inmate’s file pending release. 

See 37 TAX. $8 265.6, 267.5, 269.1(3). No rule discus+ the wxdiscation of property 

with regard to bates in a wunty wrrectional facility. We understand that inmates in 

such a facility may retain possession of their personal property, including money. 

No statute or rule discusses whether a sherilf may place an inmate’s money into an 

interest-bearing account or invest the money, or whether the sheriff simply may place the 

money into a safe place for the duration of the inmate’s stays Bnt see. Attorney General 

opinion N-398 (1985) at 3 (stating that inmate’s money remains in sherig’s custody 

“where it may be deposited in an account that serves as a depository for all inmates[l] 

peraonrd timds”). Because of the absence of statutory or regulatory diiion, we believe 

that each wmty shetiE. in the exercise of his or her discretion, may decide where to place 

inmates’ money for safekeeping. A sheriff may decide, therefore, to keep the money in a 

cash deposit drawer or safe, a safe deposit box, or an account, either interest-bearing or 

non-interest- or, if practicable, to invest the money. We caution, however, that 

the she-rig’s discretion may be limited by the county auditor, who “may adopt and enforce 

p. 1480 
Mr.S.E.Seely - Page 5 (DIG282) 

mgulations, . , that the auditor considers newssay for the speedy and proper wllecting, 

checking, and acwunting of the revenues and other funds and fees that belong to the 

cowty or to a person. . . for whose use or benefit the [precinct] officer holds or has 

received funds.” Local Gov’t Code 5 112.002(b); see Attorney General Opinion M-702 

(1987) at 2 (ite trust account subject to audit by wunty auditor); see ulso Local Gov’t 

Code 3 112.001; Attorney General Opinion JM-1162 (1990) at 3 (county auditor could 

require clerk to place trust funds in separate accounts). 

Moreover, no statute or rule discusses whether, in the event that the she&T places 

an inmate’s money in an interest-bearing account or invests the money, the inmate is 

entitled to receive the interest his or her money has accrued, whether the sheriffs 

department may receive the interest, or whether the county may receive the interest. In 

part, the disposition of the interest depends on whether the sheriff holds the money in trust 

for the imnate. If so, the interest is property of and due to the inmate, who is the 

benetlciary of the trust timd. See 35 D. BROOKS, supra 5 14.11, at 526. “A wunt$s 

wihml wnfiscation of the earned interest [on a trust fund] is an unwnstitutional taking 

of property.” Id.; see ah Harrik County v. sellers, 483 S.WJd 242, 243 (Tex. 1972) 

(and cases cited therein). The county may retain an amount reasonably related to the 

value of its services in safeguarding and investing the principal, however. See Hurris 

CoMty, 483 S.W.2d at 244. You indicate in your letter that the present policy of your 

CouDty is to place the inmates’ money into a trust fund. Consequently, except for an 

lunountthatthewuntymayretainthatisreasonablyrelatedtothevalueofthew~s 

savices in safeguarding and investing the inmate’s money, the interest on the money is the 

pperty of the inmate and the county must pay it to the inmate. 

SUMMARY 

The clerk of a district court may deposit into an account 

separate from the county’s general acwunt cash paid in lieu of a bail 

bond if the court or another authority orders the clerk to do so. 

Because cash paid in lieu of a bail bond is to be held in trust for the 

bailee unless the cash is forfeited. any interest that acc~es on the 

cash during the time it is in the county’s possession belongs to the 

bailee; the county may keep only a portion of the interest in 

accordance with section 117.054 of the Local Government Code. 

The she.rB of a county may decide where to keep inmates’ 

money for safekeeping. The sheriffs discretion is liited, however, 

by the county auditor, who may regulate the keeping of inmate iimds 

as necessary for the purposes of wllecting, checking, and accounting 

of revenues and other fimds and fees belonging to an inmate. The 

disposition of any interest that accrues on an inmate’s money during 

the inmate’s incarceration in wunty jail depends on whether the 

money-is held in trust for the inmate. If so, the inmate is entitled to 

tlk accrued interest, except for an amount reasonably related to the 

.,“l 
Mr. S. E. Seely - Page 6 (~~-282) 

vahm of services in safeguard@ and hesting the principal that the 

countymayretain. 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

Fii Assdmt Attorney Gene& 

JORGE VEGA 

Deputy Attorney General for Litigation 

RENEAHIcKs 

State Solicitor 

p. 1482