DAN MORALES

Al-rORNEY GENERAL 

## QBffice

of ttp !Zlttornep@enera &ate of lQexas January 10, 1994

Mr. S. E. Seely El Paso County Auditor OpinionNo. DM-282
Room 406, County CourthouseBuildmg 500East SanAntonio 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 followingquestions: 1. Under the Texas Code of CriminalProceduren 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, escrowedin the generallimd and investedfrom the general fund’ sescrow account? If so, can the resuhing interest income be credited to the County’ sgeneral fimd? If not, then what would be the proper dispositionofthe 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 investmentsbe deposited into the County Treasury and credited to the County’ sgeneral tind interest income account? If the interest incomeCBMot

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 accordancewith the Texas GovernmentCode 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 citesection

500.014

oftk Govammu chdc. TlIelegislsnlre lemlmkd suxioa 500.014
ss seaion 501.014

of theGovcrnmcnt

c& in 1991.

SetActs1991.72d

Leg., ch. 16,s 10.01(a).

at 312.

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Your tirst three questions pertain to the receipt of cash bail bond funds by the County of El Paso (the “county”). whichyou cite, provides as follows: Section 17.02 of the Code of Criminal Procedure,

A “bail2bond” is a written undertaking entered into by the defendant and his sureties for the appearanceof the principaltherein 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 pendingcurrent money of the United States in the amount of the bond in lieu of having sureties signingthe same. Any cash funds deposited under this Article shah be receipted for by the officer receiving the same and shallbe retimded to the defendant if and when the defendant complies with the conditions of his bond, and upon order ofthe court. Footnote added.] See a&o 22 TEX.JUt. 3d CrimiiMI Law 82170, at 397 (1982). In Attorney General Opiion JM-1162 (1990) at 2 this office consideredquestionsmgardingthe status of trust limds that a district clerk holds in trust until tInaldispositionby 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 lieuofbailbonds. This office concludedin Attorney General Opiion JM-1162 that cash paid in lieu ofabailbondistobeheldintrustpursuanttochapterll7oftheL.ocalGovemment Code. Attorney GeneralOpiion JM-1162 at 2. For purposes of chapter 117 of the Local Govemment Cod%a “trust fimd”

is an equitable obligationunder which the trustee is required to deal with the trust property for the benefitof the be&i&ies who have a vested interest inthe trust funds. Any fin& fitting this dektition are trust 6mds and, if in the possession of the county or district clerk, may be depositedinthe county depositoryfor 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 GeneralOpinionH-183 (1973) at 4,6).

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The opinion next considered whether a district clerk must deposit trust timds in separate accmmtsor 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-bearingaccounts. Id. However, the clerk must comply with the instructions of the court that directed the clerk to hold the ftmds. Id. Theopinion also noted that both the county auditor and county commissioners court have some discretionaryauthority to impose additionalduties 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 includinga requirementthat the district clerk deposittrust funds in separate accounts. Id. Section 117.051 of the Local Government Code authorizes a commissioners court to require that trust Smdsbe placedin “timedeposits,”which, according to Attorney General Opinion Bvl-1162,indicates that the commissionerscourt may require trust funds to be placed in interest-bearingaccounts. Id. at 3-4. This office also exam&d in Attorney General Opiion JIM-1 162 the question of whether a comty is entitledto 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~pattof the interest earnedon 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 compensationinto the county’ s generalSmd. 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-bearmgaccount cashpaid 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 dispositionof interest received on inmate monies in a trust fimd established in accordance with section 501.014 of the Government Code. Section 501.014 providesin relevantpart as follows:

(a) The director of the institutional division shall take possession of all money that an inmate has on the inmate’ sperson when the inmate arrives at the institutionaldivisionand 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 isMr. 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

“institutionaidivision”). We have been advised by an employee of the TDCJ that money the director of the institutionaJdivisionobtains pursuant to section 501.014 is deposited into the TDCJ’ s

inmate trust fund, and that money in the TDCJ’ sinmate trust fbnd does not accrue interest. Section 501.014 is, therefore, wholly inapplicableto 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 sheriffresponsible for each of these wunty facilities. The Texas Commissionon Jail Standards(the “wmmiasion”) is authorized to promulgaterules goveming countyjails (includingwunty wrrectional fhcilities)under section 351.002 of the Local GovernmentCode. 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 commissionhas promulgated section 265.11 of title 37 of the Texas AdministmtiveCode whichprovides as follows:

If an inmate is not going to be released, the receiving officer shall camfidly record and store such of the inmate’ sproperty as is taken from himand issuethe inmatea receipt, signedby the receiving officerandthe inmate,to be. kept in the.

inmate’ s filependingrelease. 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 mayretain possessionof their personalproperty, includingmoney. No statute or rule discusseswhether a sherilfmay place an inmate’ s money into an interest-bearing account or invest the money, or whether the sheriffsimplymay place the money into a safe place for the duration of the inmate’ sstays Bnt see.Attorney General opinion N-398 (1985) at 3 (stating that inmate’ smoney remains in sherig’ s custody “where it may be deposited in an account that serves as a depository for all inmates[l] peraonrdtimds”). Because of the absenceof statutory or regulatory diiion, we believe that each wmty shetiE. in the exerciseof his or her discretion,may decide where to place inmates’ money for safekeeping. A sheriffmay 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 limitedby the county auditor, who “may adopt and enforce

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mgulations,

. , that the auditor considersnewssay 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’tCode 5 112.002(b);see Attorney General OpinionM-702 (1987) at 2 (ite trust account subjectto audit by wunty auditor); see ulso Local Gov’t Code 3 112.001; Attorney General OpinionJM-1162 (1990) at 3 (county auditor could require clerkto placetrust fundsin separate accounts). Moreover, no statute or rule discusseswhether, in the event that the she&Tplaces an inmate’ smoney 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 dispositionof the interest dependson whetherthe sheriffholds 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, 483S.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 safeguardingand investingthe 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’ sgeneral 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’ spossession belongs to the bailee; the county may keep only a portion of the interest in accordancewith section 117.054of the Local GovernmentCode.
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 belongingto 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

.,“lMr. S. E. Seely - Page 6 (~~-282)

vahm of servicesin safeguard@ and hesting the principalthat the countymayretain.

DAN MORALES Attorney Generalof Texas
WILLPRYOR Fii Assdmt Attorney Gene&
JORGEVEGA Deputy Attorney Generalfor Litigation
RENEAHIcKs State Solicitor

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