   orr,cr   OF THE ATTORNEY GENERhL   STATE OF TEXhS
   JOHN     CORNYN




                                             July 21, 1999



Mr. R. R. Noble                                 Opinion No. JC-0084
Andrews County Auditor
County Courthouse, Room 109                     Re: Whether a county auditor may require a county
Andrews, Texas 79714                            attorney to submit documentation    for expenses
                                                incurred from the hot check fund (RQ-0014)


Dear Mr. Noble:

        Youhave asked this office whether you as the county auditor may require the county attorney
to provide receipts for purchases of goods and services from the “hot check” fund, or for
reimbursement of such purchases therefrom. Given that, as it appears, the requiring of such receipts
is an ordinary accounting and control procedure of your of&ice, you may.

          Article 102.007 of the Code of Criminal Procedure establishes the so-called “hot check”
fund, a fund amassed by the collection of a fee for the collection and processing by the county,
district, or criminal district attorney of forged or dishonored checks. Subsection (f) provides that
these fees

                 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 bk 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.

       This language has been subjected to analysis in a number of opinions of this offlice, which
have uniformly held that the attorney has exclusive control over monies in the fund. See, e.g., Tex.
Att’y Gen. Op. Nos. DM-357 (1995), JM-1034 (1989), JM-738 (1987).

        In Attorney General Opinion DM-357, we concluded that the “hot check” fund was “wholly
outside of the county budgeting process,” Tex. Att’y Gen. Op. No. DM-357 at 6, and that
accordingly the county judge and county auditor were not authorized “to require the county attorney
to submit a budget” for the fund. Id. at 6-7.
Mr. R. R. Noble       - Page 2                        (X-0084)




        While DM-357 affirmed the attorney’s control ofthe &rid, it pointed out that that control was
not carte blanche:

                  [T]he county attorney is accountable for the proper use of the fund.
                  The auditor is authorized to oversee the county attorney’s books and
                  records regarding the fund. Moreover, the county auditor is required,
                  at least annually, to “fully examine” the county attorney’s accounts.
                  The county attorney must file all necessary reports concerning the
                  receipt and expenditure of monies to the fund (after the county
                  attorney has received or expended the money). Finally, as we have
                  suggested previously, the county attorney must administer the fund
                  in accordance with any accounting and control procedures prescribed
                  by the county auditor.

Id. at 8 (citations   and footnotes omitted).

        Your correspondence demonstrates that the request for receipts is an ordinary accounting and
control procedure of your office. That being the case, you may require the production of such
receipts in this connection.

                                             SUMMARY

                          A county auditor       may, as an ordinary accounting and control
                  procedure,  require the        county attorney to provide receipts for
                  purchases of goods and        services from the “hot check” fund, or for
                  reimbursement for such        purchases therefrom.




                                                     JOH’N    CORNYN
                                                     Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by James E. Tourtelott
Assistant Attorney General
