Hon. W. P. Herms,        Jr.              Opinion    No. C-49
County Auditor
Wailer County                             Re:   Various questions          concerning
Hempstead, Texas                                county depositories.

Dear Mr. Herms:

              The questions      posed     by your   opinion    request      are   as
follows:

        "1.   In accordance      with Article         2552 and 2553
       R.C.S.    is it not mandatory upon the Farmers
       State Bank to designate           a place,       persons or
       corporation     at said county seat where a 1:I checks
       drawn upon County Funds by the County Treasurer
       will   be paid and also designate              'the place at
       the county seat where, and the person by whom,
       all deposits     may be received          from the Treasurer
       for such deuositorv'          (Italics      mine Article     2552
       and 2553)?      If this statute         is to be interpreted
       as it reads,     then such designations              must be
       without     any restrictive       qualifications,        since it
       is not contemplated         that funds be mailed to de-
       pository     anywhere outside         the county seat.

      "2.    When County Treasurer,     Tax Collector,       County
      Hospital    or other official    deposits    County Funds
      with the place designated       at county seat by the
      Farmers State Depository       Bank should not such de-
      pository,    through its designated      agent     be re-
      quired to assume the responsibility          of'said    funds
      at time of deposit      at such designated      place,   and
      should not such designated       place issue deposit
      voucher   to depositing    county official      as evidence
      of deposit,    in the same manner that a bank issues
      a deposit    voucher to a depositor?

       “3. If your answer to number two above is 'No',
       then just when, how, and where may the county of-
       ficial    discharge   his responsibility        for such funds?
       Prom an administrative       standpoint        we will   encoun-
       ter numerous difficulties        and problems if county
       officials     are required   to mail     their    county funds

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Hon. W. P. Hems,      Jr.,    page 2      (C-49)


     elsewhere   instead      of depositing        them at the   county
     seat;   . . .
           8,. . .

     “4. . . . should not the Commissioners t Court
     obtain from the Brookshire       back   formal designa-
     tion of Warren Loan Company setting          forth   in de-
     tail   the procedures   which shall    be followed     and
     how and in what manner Warren Loan Company shall
     discharge   said responsibility?       Also,    should not
     there be filed    with the Commissioners’        Court a
     statement   by the Farmers State Bank that said
     designation    is being made in conformity         to Arti-
     cles 2552 and 2553 R.C.S.?--this        so that there
     should be no misunderstanding.         Do you also not
     deem proper that this statement        and designation
     should be over the Corporate       Seal of the back,
     signed before    a notary with the affidavit         that
     such person signing     was so authorized       to act for
     said bank?”

           Article    2552,    Vernon’s    Civil     Statutes,   reads    as follows:

            “It shall be the duty of the depository                or
     depositories      to pay, upon presentment         at the
     county seat of the county,           or in the case of
      ‘time deposits’      to pay upon presentment         after    the
     expiration      of the period of notice       agreed upon,
     all checks or warrants drawn by the county treas-
     urer upon the funds of said county deposited                 with
     said depository        or depositories,     as long as such
     funds shall be in the possession            of such deposi-
     tory subject      to such checks or warrants.            For
     every failure       to pay such check or warrant at such
     county seat either        upon presentment      in case of
      ‘demand deposits ’ or upon presentment            after    the
     expiration      of the period     of notice   required      in the
     case of ‘time deposits        ’ said depository       or deposi-
     tories    shall   forfeit   and pay to the holder         of such
     check ten per cent (10%) of the amount thereof;
     and the Commissioners         Court shall revoke the order
     creating     such depository      or depositories.”

           Article    2553,    Vernon’s    Civil     Statutes,   reads    as follows:

            “If any depository   selected   by the Commis-
     sioners    Court be not located    at the seat of such


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Hon. W. P., Hems,      Jr.,   page 3   (C-49)


      county,  said Commissioners      Court may in its dis-
      cretion  require   said depository     to file    with the
      county treasurer    of such county a statement        des-
      ignating   the place at said county seat where and
      the person by whom, all deposits        may be received
      from the treasurer     for such depository,       and where
      and by whom all checks will       be paid,    said person
      to be approved by the Commissioners         Court; and
      such depository    shall   cause every check to be
      paid upon presentation      or upon presentation      at
      the expiration    of the period    of notice     in the
      case of 'time deposits'      at the place so desig-
      nated so long as the said depository          has suffi-
      cient funds to the credit       of said county applica-
      ble to its payment."

             In construing     a statute    we must look to the statute          as
a whole to determine       the legislative      intent.      The caption    may be
considered    in arriving     at the legislative        intent  of the statute.
Texarkana & Ft.                                                   ., 121 Tex. 594,
5'1 S.W.2d 284 (                           ~, -                     s. Co. v. Fine-
&,1:183      S.W. -833 (Tex.Civ.App;       1916);   79 Tex.Jur.      227. Statutes.
    .      . The caption      of House Xl1      85,-Acts 1949, 51.G Leg., pi'
187, ch. 103, now compiled as Article             2553, 'rernon's     Civil  Stat-
utes,   reads in part as follows:
             11
             . .  . providing   that the Commissioners
      Court may in its discretion     reauire  a receiving
      and paying agent at the county seat,       and provid-
      ing that said agent shall be approved by the
      Commissioners  Court;   . . .'I   (Emphasis added).

It is clear     from the caption    that the Legislature   intended   to make
it discretionary      with the Commissioners    Court whether to require
the depository      to designate  a receiving   and paying agent at the
county seat and to require       the depository   to file  a statement   ap-
pointing    such agent with the Commissioners       Court.   The agent must
be approved by the Commissioners         Court.

            Article     2553 conflicts    to some extent with Article         2552,
but it is a well settled       rule of statutory      construction     that when
two statutes    are "in pari materia,"       the older statute      will   be
held to be repealed       by implication    to the extent     of its conflict
with the newer enactment.          Townsend v. Terrell,     118 Tex. 463, 16
S.W.2d 1063 (Tex.Comm.App.         1929);  Tunstall   v. Wornley     5% Tex.
476 (1881);    First    Nat. Bank v. Lee Countv Cotton Oil 60.           274
S.W. 127 (Tex.Comm.App.       19251, affirming      250 S.W. 313; 34 Tex.Jur.
145, Statutes,      Sec. 77. Since Article       2553 is the newer statute,
it must take precedence       over Article    2552.
                                   -224-
Hon. W. P. Hems,       Jr.,   page 4     (C-49)



             In answer to your first    question,    it is not mandatory
upon the Farmers State Bank to designate          a paying and receiving
agent at the county seat.        Under Article    2553, the Commissioners
Court may require     the depository   to designate     such an agent,   but
the exercise    of this power is discretionary       with the Commission-
ers Court.

            If an agent at the county seat is designated   by the de-
pository,   then under the terms of Article   2553, that agent bJoUld
be responsible   for deposits  of county funds made with him.    The
answer to your second question    is in the affirmative.

               Your third question   does not require   an answer        since
the answer      to the second question   is in the affirmative.

            As to your fourth     question,     Article     2553 gives    the
power to the Commissioners       Court to require         a depository    to ap-
point an agent in the county seat and also gives the Commission-
ers Court the power to require        a statement       from the depository
designating   the agent.     The statute     does not spell        out the type
or form of statement     envisioned.      It  follows      therefore   that the
form of the statement will       be left    to the sound discretion         of
the Commissioners   Court.

                                 SUMMARY

             It is not mandatory that a county depository
      designate     a paying and receiving      agent at the
      county seat unless the Commissioners           Court in the
      exercise    of its discretion     requires    such designa-
      tion.     The designated     agent of a depository     would
      assume responsibility        for county funds deposited
      with the agent until       they are received     at the de-
      pository.      The form of the statement       of a deposi-
      tory designating      an agent in the county seat is
      left   within   the discretion    of the Commissioners
      court.

                                       Yours    very    truly,

                                       WAGGONER CARR
                                       Attorney General




JGN:wb
                                       B+lktfNo~~
                                          . Assistant



                                        -225-
‘.




     Hon. W. P. Herms,        Jr.,   page   5   (C- 49)



     APPROVED:

     OPINION COMMITTEE

     W. V. Geppert,     Chairman
     Pat Bailey
     Paul Robertson
     Albert  Pruitt
     James Strock

     APPROVEDFOR THE ATTORNEYGENERAL

     BY:   Stanton    Stone




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