                             The Attorney                 General of Texas
                                              NOV’Naber     20,     1985
JIM MAlTOX
Attorney General


Supreme Cart Buildin         Ms. Deborah Jo Mertdors                        Opinion No. ~~-383
P. 0. Box 1254S              Robertson County mditor
Austin. l%. 78711-2548       P. 0. Box 646                                  Re: Whether county funds must b
512147%?501                  Franklin, Texas     77856                      deposited  in a designated count
Talex 9101874.1367
Telecoplu Sl2/4?502+8
                                                                            depository

                             Dear Hs. Meadors:
714 Jackson. Suite 700
Dallas. TX. 75202-
                                   Pursuant to gJur limited      authority to request opinions,     you 85
2141742-6944
                             two questions      in regard to the depositories        for county funds i
                             Xobertson County.       You inform us that   at the present time, the count
4S24 AlMRD Ave.. Suit0 180   has selected,    thrnzgh the “bid” process,      a county depository   for th
El Paso. TX. 799D5.2793      next   two years.     U’e assume that this “bid” process      is the procedur
915!-                        outlined   in artic:.es   2545 aid 2546, V.T.C.S.     You also inform us tha
                             all of the county funds with the exception           of the “Road and aridg
1001 Texas. Suits 7W
                             Precinct    Fund” hmre ,been deposited      in the bank designated      as tb
llouston, TX. 77002-3111     couaty depository.
71312296888
                                   You further    kadicate that this “Road and Bridge Preclncc           Fund
                             was initially    deposited     in the designated       depository bank when tb
808 Broadway, Suite 312
Lubbock. TX. 79401-3479
                             taxes were colleci:ed’ by the tax collector        ‘for that purpose.   However
mw747.5238                   these funds were tubsequently       transferred   to one of four banks locate
                             in each of the for.r county precincts.         We understand that warrants ar
                             drawn on these four accounts          located   in the varfous banks and ar
4309 N. Tanth. Suite B
                             signed both by the county auditor and the treasurer.              You first   as
McAllen, TX. 7850%1885
512lM2-4547                  whether this depo6:ltoty      system is in compllmce with state law.           W
                             conclude that the system is contrary to the system prescribed             by th
                             leglalature   In articles    2544-2549. V.T.C.S.
2w M.,” Plaza. SIllto 400,
San Antonio. TX. 782052787
                                    As a prel%miusry matter,       the Robertson County commissioners tour
%?/2254191
                             has only      the pomrs      conferred       either     expressly    or by necessar
                             implication     by thtr constitution     and statutes       of this state.    See Tex
An Equal OPP’XtunltYl        Coust. art.      V, 51~8; Canales v. Laughlin,           214 S.W.Zd 451, 4r(Tex
A,,lr,,mtlve Action EmPlOW   1948).     The 1egis:iature    has required a county commissioners            court t
                             follow    a prescrite,d    procedure     in exercising        its  duty to safeguar
                             county funds.      See V.T.C.S. arts. 2544-2549.            A conmissioners   court I
                             authorized     to ez;r    %nto a contract with any bank in the county as
                             depository      of county funds,       after     giving    public   notice  that sue
                             contract    is made.      See V.T.C.S.        art.   2544.     More than one count
                             depository    msy be selected.      -See V.T.C.S. art. 2546.
                                                                        I




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ns.   Deborah Jo Meadors - Pag’e 2            (JIG383)




       Article   2549(a),     V.T.C.,S.,    provides:

                 (a)    As soon aB said bond be given and approved
             by the Comissione:rs         Court, an order shall be made
             and entered upon the minutes oft said Court desig-
             narinn such bankian corooratlon,              association    or
             individual     banker, as a ‘depositorg         for the funds
             of said county r~n.til sixty          (60) days after      the
             time fixed for th; next selection           of a depository;
             and thereuuon.
                          .      it-shall    be the duty of the county
             treasurer of sa:.d county Immediately                upon th;
             making of such order, to transfer            to said deposi-
             tory all the fuud.a belonging         to said county . . .
             and Immediately r.pon receipt          of any money there-
             after,   to deposit the same with said depository            to
             the credit      of said county. . . .          It shall   also
             be the duty of tha tax collector              of such county
             to deposit      all tlu:es collected      by him, or under
             his authority,      for the State and such County . . .
             in such depository         or depositories,        as soon as
             collected.     . . ..    (Emphasis added).

Thus, all county funds are to be deposited     In the county depository
for   the prescribed  period  of time.     The ouly exception   to this
requir-t     is found in ar<:Lc&e 2549(c),  V.T.C.S.. which provides   in
part:

                 (c)   Unless rcpressly  prqhibited   by law or
             unless ‘it is in c:ontraventiort of any depository
             contract between ,L county and say depository bank,
             the Commissionerr, Court may direct      the county
             treasurer   to:

                     (1)     withdr;nr any amount of              funds of the
                 county     that   axe deposited   In a          county deposl-
                 tory    and that ere not required               inrmcdiately to
                 pay    obligrtionl$   of the county or          required to be
                 kept    on deposit    under the terms           of the deposi-
                 tory    contract;    and

                     (2)    invest   those   funds    In           direct   debt
                 securities     of zhe United States.

Consequently,   the        present      depository      system   In Robertson      County   is
prohibited  by this        provisiorl..

     As indicated above, tL? road and bridge fund is presently   located
in four banks that bave not been designated    as county depositories.
The “road and bridge” fund is lone of three statutory   funds which are




                                           p. 1757
Ms. Deborah Jo Meadors - Page 3 (JM-383)




to be deposited      by the    treasurer    into  the   county depository.
See V.T.C.S.   art.  1628; see also      Attorney  General Opinion E-1185
m7a).     In Attorney Genera,1 Opinion ~-33 (1967) it was held:

           The purpose of the procedures~ prescribed          by the
           statutes    relating     to the selection    of 8 county
           depository     is to secure        to the county a safe.
           responsible    depository     for its funds with a return
           of interest     for ‘Jj6e thereof.    . . .

There is no indication      that the commissioners    court has required the
additional   four banks to ~:omplp with any of the bonding requirement6
specified   In article    2347. V.T.C.S.    Thus, the funds deposited       are
unprotected    by the procedure.         In addition.     there is   also    no
indication   that these four banks have submitted applications           to be
considered   as a proper cclusty depository.       Accordingly,  we conclude
that the present      depository   systen Is contrary to the intent         and
purpose of articles 2544 tlueough 2349, V.T.C.S.

      You also aak whether it is perniasible       to leave these road and
bridge funds in the four b,anks until     such time as you are to select
your county depository.     We think not.     As indicated    above, article
2349 require6 that these funds be deposited       in the county depository
until   “60 days after  thi time fLxed for the next selection           of a
depository.”    See V.T.C.S.   art.   2349.    See also    Attorney  General
Opinion O-38377941)      (bank selected     remains the county depository
during the terms of the coutract).

                                 SUMMARY

           A county comnissL~mer6 court is not authorized        to
           deposit    funds    Ln banks which have not        been
           designated    as the county depository   in compliance
           with articles    2344 through 2349, V.T.C.S.   Article
           2349 requires      county officials    to depoeit   all
           county fund6 in the designated county depository.




                                             JIM     MATTOX
                                             Attorney Ganeral of Texas

NARYKELLER
Executive Assistant   Attorney   General




                                 p.   1738
Ms. Deborah Jo Meadors - Page 4      (m-383)




ROBERTGRAY
Special Assistant   Attorney   General

RICK GILPIN
Chairman. Opinion   Comittee

Prepared by Tony Gulllory
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin,   chairman
Co1111 Carl
Susan Garrhm
Tony Guillory
Jim Hoellingar
Jenalfcr &Lggs
Nancy Sutton
Sarah Woelk




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