                       December 18, 1990


Honorable Tom O'Connell      Opinion No.   JM-1263
Criminal District Attorney
Collin County Courthouse     Re:     Authority of a county
McKinney, Texas 75069        auditor to prescribe the use
                             of a county's federal employer
                             identification number on all
                             departmental depository bank
                             accounts (RQ-2034)
Dear Mr. O'Connell:
     you ask whether, pursuant to section 112.001 of the
Local Government Code, the county auditor may require the
use of the county's federal employer identification number
on the accounts of the county tax assessor-collector in the
county depository, to the exclusion of other employer
identification numbers that may have been assigned to /a
county office.1   We conclude that the county auditor may
impose such a requirement pursuant to section 112.001, but
only with respect to accounts that contain county funds.
     We are advised that this question is prompted by an
apparent disagreement between the county auditor and the
county tax assessor-collector concerning the appropriate
employer identification number for the accounts of the tax
assessor-collector's office. On May 8, 1990, the auditor
adopted a regulation governing the styling of depository
accounts. It requires the use of the county's federal
employer identification number on all such accounts and
prohibits the use of other employer identification numbers.
Previously, the county tax assessor-collector had applied
for and received a separate employer identification number
from the Internal Revenue Service.     Much of the dispute


     1. The federal employer identification number is the
taxpayer identification number of an individual or     other
person (whether or not an employer) assigned pursuant to
title 26 of the      United States Code section      6011(b)
(providing for the identification of taxpayers by the
secretary of the treasury) or section 6109 (authorizing the
secretary to require the use of assigned identification
numbers). 26 C.F.R. 9 301.7701-12.


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Honorable Tom O'Connell - Page 2   (JR-1263)
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appears to center on whether the tax assessor-collector was
entitled to receive a separate employer identification
number. That is a matter within the jurisdiction of the
Internal Revenue Service, but we can ascertain the authority
of the county auditor to adopt the regulation in question
pursuant to section 112.001 of the Local Government Code.
Furthermore, since there is disagreement between the county
auditor and the county tax assessor-collector over the
statutory duties    of   each office,    we   will   respond
accordingly.
     Section 112.001 of the   Local Government Code   provides
the following:
        In a county with a population of less than
        190,000, the county auditor may adopt and
        enforce regulations, not inconsistent with
        law or with a rule adopted under Section
        112.003, that the auditor considers necessary
        for the    speedy and    proper   collecting,
        checking, and accounting of the
        other funds and fe s that beme
        countv. (Emphasis aided.)
The authority granted under this provision plainly extends
only over funds that "belong to the county."       Section
112.001 is derived from article 1656, V.T.C.S., : and is
identical in substance to article 1656 as it was first
enacted in 1905. m      Acts 1905, 29th Leg., ch. 161, at
381.2


     2. In contrast, a county auditor in a county with a
population of 190,000 or more may adopt and enforce regula-
tions for the speedy and proper collecting, checking, and
accounting of
        the revenues and other funds and fees that
        belong to the county or to a person for whom
        a..   . county officer . . . has made a
        collection or for whose use or benefit the
        officer holds or has received funds.
Local Gov't Code 9 112.002(b).
   Section 112.002 is the descendant of article 1656a, first
enacted in 1933. Acts 1933, 43rd Leg., ch. 98, at 217. It,
too, reflects the substance of the predecessor statute.   In
an opinion considering the practice of certain county
                                        (Footnote Continued)



                               P. 6749
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     The county auditor's power to prescribe accounting
regulations under section 112.001 should also be contrasted
with the audit authority of the county auditor.      Section
115.001 of the Local Government Code gives the auditor
Vontinual access' to the "books, accounts, reports, vouch-
ers, and other records of any officer." He is required to
examine and investigate the correctness of these records.
Under section 115.002(b), the auditor is required to check
the books and examine the reports of all county officers,
including the tax assessor-collector. Section 115.0035 of
the code, enacted in 1989, authorizes the county auditor to
examine and verify the correctness of the accounts of all
precinct, county, and district officials.     nAccounts" is
defined as "all public funds that are subject to the control
of any precinct, county or district official," including
funds of law enforcement agencies and attorneys for the
state composed of seized and forfeited property.       These
provisions do not distinguish between records concerning the
collection of county funds and non-county funds.     CornDare
Local Gov't Code 5 115.002(a) (auditor shall examine and
report on all reports made to the commissioners court "that
are about the collection of money for the county") with ia.
9 115.901 (auditor shall examine accounts, dockets, and
records of county tax assessor-collector, among others, to
determine whether money "belonging to the county and in
possession of the officer" has not been accounted for and
paid over as required by law). Thus, the county auditor's
power to audit the accounts of county officers is broader
than his power to adopt and enforce regulations under
section 112.001.

     Consequently, in order to determine the validity of a
regulation adopted by the county auditor under section

(Footnote Continued)
officers of accepting reimbursements for dishonored checks
on behalf of the recipients of the checks, this office
stated broadly that a county auditor could, pursuant to
article 1656a, adopt and enforce regulations for the col-
lecting, checking, and accounting of funds not belonging to
the county but collected by a county officer in an official
capacity or under color of authority.      Attorney General
Opinion C-277 (1964); see also Attorney General Opinion
WW-86 (1957) (pursuant to article 1656a, county auditor
could require chief probation officer of Dallas County to
deposit with county treasurer money collected for child
support in divorce cases). Neither section 112.001 nor its
predecessor, article 1656, provide an equivalent extension
of the county auditor's authority.
Honorable TOB O*Connell - Page 4     (JM-1263)




112.001, it is necessary to first determine whether the
funds to which the regulation relates comprise county funds.
In the case of the county tax assessor-collector, there are
a number of instances in which funds collected by the office
and deposited in the county depository may not be character-
ized as county funds.
     The basic duties of  the county tax assessor-collector
are prescribed by title 1 of the Tax Code, designated the
Property Tax Code.3 He is responsible primarily for the
assessment and collection of county property taxes, but may
have the duty of performing these functions ~for another
taxing unit.
     Various laws govern the deposit of taxes collected by
the county tax assessor-collector for other taxing units.
Se . e.u. Local Gov*t Code 9 116.113(b); Tax Code 31.10(d).
Thz follo&ing discussion is merely illustrative of the funds
involved. It does not purport to be exhaustive, but is
intended to assist you in determining whether the auditor's
regulation is applicable to particular funds.
     When the county tax assessor-collector collects taxes
on behalf of other taxing units, he acts as the agent of the
other taxing unit.         1
                           A          de .
Standlev, 280 S.W.2d %S       ($ex. 1955); Attorney General
Opinion M-859 (1971). With rare exceptions, the collection
of funds by an agent on behalf of his principal does not
diminish the title of the principal in such property. -3
Am. Jur. 2d, Agency 5 222-224 (1986). Therefore, we do not
believe the monies collected by the county tax assessor-col-
lector on behalf of other taxing units and placed in the
county depository can be characterized as county funds sub-
ject to the county auditor's authority under section 112.001
of the Local Government Code.
          The county tax assessor-collector is entitled by law to
a reasonable fee, not to exceed actual costs, for collecting
taxes for         another taxing      unit pursuant   to   section
4;&(;~6::;,p)       (21,  or (4 (!I -    Tax Code 5 6.27(b).   The
                    are not retained by the tax assessor-col-
lector, but must be paid into the county treasury.            Tex.
Const. .art. XVI, 5 61; Attorney General Opinion U-624
(1970). They are appropriately characterized as county


     3. A comprehensive discussion of the powers and duties
of the county tax assessor-collector appears in 35 D.
Brooks, County and Special District Law ch. 13 (Texas
Practice 1989).
Honorable Tom O*Connell - Page 5    (JM-1263)




funds, and thus are subject to the auditor's power to   adopt
regulations under section 112.001.
     The county tax assessor-collector is also designated
the agent of the state Department of Highways and public
Transportation for the registration of motor vehicles and
the collection of motor vehicle fees.     m   V.T.C.S. art.
6675a-2 et seq. He is required to deposit a portion of the
motor vehicle registration fees collected by his office in
the county depository to the credit of the county road and
bridge fund. The sum of the deposit is determined by a for-
mula that specifies the maximum amount of fees a county may
retain before remitting the balance to the Department     of
Highways   and   Public   Transportation.    V.T.C.S.   art.
6675a-10(a), (b).
     The commissioners court may impose an optional regis-
tration fee of either five or ten dollars (depending on the
population of the county) on each vehicle registered in the
county, unless the vehicle is exempted from the payment of
registration fees. V.T.C.S. art. 6675a-9a. The county tax
assessor-collector must deposit 97 percent of the optional
county registration fee in the county depository to the
credit of the road and bridge fund; the remainder is remit-
ted to the Department of Highways and Public Transportation.
V.T.C.S. art. 6675a-lO(c-2).
     The county tax assessor-collector may defer remittance
of certain motor vehicle registration fees and deposit them
in an interest bearing account or certificate in the county
depository. V.T.C.S. art. 6675a-10(d). The county owns all
interest earned on fees so deposited, and such interest is
credited to the road and bridge fund.         V.T.C.S. art.
6675a-10(f). We think there can be no doubt that all funds
credited to the road and bridge fund pursuant to these
provisions wbelongw to the county within the Brt;pg       of
section 112.001 of the Local Government Code.           same
token, funds collected on behalf of and remitted to the
state under these provisions are not county funds subject to
the county auditor's authority under section 112.001.
     Furthermore, the County Road and Bridge Act entitles
the county tax assessor-collector to deduct as a fee of
office $1.50 from each motor vehicle registration and
collect $1.00 as a service charge for registrations that are
mailed or delivered by electronic means.      V.T.C.S. art.
6702-1, 5 4.202(a), (b), (c); see also Local Gov't Code
0 118.171 (fee for returned checks). These amounts belong
to the county for purposes of,section 112.001.




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Honorable Tom O'Connell - Page 6   (JM-1263)




     The same reasoning applies to fees     the county    tax
assessor-collector receives for collecting various fees   and
taxes imposed pursuant to the following provisions:

        (1)   Tax Code f2 152.021 - 152.026 (taxes
              imposed on transfers of title and motor
              vehicle rentals), 152.041 (duty of
              county tax assessor-collector), 152.121
              (tax assessor-collector shall    retain
              five percent of taxes and penalties
              collected under ch. 152 as fees of
              office or fees to be paid into officers
              salary fund):

        (2)   V.T.C.S. art. 6687-l (Certificate of
              Title Act), 5 57 (tax assessor-collec-
              tor shall turn over $5 of each $10 fee
              collected to    county treasurer    for
              deposit in officers salary fund, and
              either remit remaining $5 to Department
              of Highways and Public Transportation
              or defer remittance and deposit or
              invest as authorized in this section,
              with accrued interest belonging to the
              county):

        (3)   Parks & Wildlife Code 50 31.0341 (tax
              assessor-collector shall retain     ten
              percent of fee collected for issuance
              of certificates of number for motor-
              boats), 31.048 (same with respect to
              certificates of title for motorboats
              and outboard motors, or for notation of
              security interest, lien or other encum-
              brance).
     Accordingly, you are advised that the county auditor
may prescribe a rule requiring the use of the county's
employer identification number on all accounts in the county
depository pursuant to the authority conferred by section
112.001 of the Local Government Code, but only with respect
to accounts that represent funds belonging to the county.
                       SUMMARY
             A county auditor in a county vith a pop-
        ulation of less than 190,000 may adopt and
        enforce a regulation pursuant to section
        112.001 of the Local Government Code that
        requires the use of the county's federal
        employer   identification   number   on   all
Honorable Tom O'Connell - Page 7   (JM-1263)




        accounts in the     county depository     that
        contain funds belonging to the county.




                                     JIM     UATTOX
                                     Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Steve Aragon
Assistant Attorney General
