             THE    ATTORXEY      GENERAL
                        OF TEXiUl
                         February 15, 1988




Honorable  Mike Driscoll           Opinion   No. (JM-856)
Harris County Attorney
1001 Preston, Suite 634            Re:   Whether a sheriff may use
Houston,  Texas   77002            his officeholder     or campaign
                                   funds to pay or reimburse    cash
                                   shortages    in    his  official
                                   account   (RQ-1070)

Dear   Mr.   Driscoll:

      You state that a cash shortage of       $1,500 occurred     in
the bonding section of the Harris County Sheriff's         office.
You also state that at     the request of the      county auditor
to account for the shortage,     the sheriff used his personal
funds to replace     the missing cash.     You ask whether      the
sheriff may use his campaign or officeholder        contributions
to reimburse   himself  for this use of his personal      funds or
whether his political     contributions   could have     been used
originally   to replace the missing cash.

      Title   15   of   the    Texas    Election     Code   regulates
political   funds and campaigns.        Restrictions     on political
contributions    and expenditures     are found in chapter 253 of
the Election     Code.    Section    253.035(a)     of the    Election
Code prohibits    the conversion     to personal    use of political
contributions    accepted     on or   after    September   1,    1983.1
"Personal    use"    is   defined    by   Election     Code    section
253.035(d)   as follows:

             (d)   In this section,     'personal use' means
         use that    orimarilv     furthers     individual     or
         familv   vurvoses     not    connected     with      the
         performance   of   duties    or    activities     as   a




       1. This opinion   assumes that   the political     funds
from which the payment or reimbursement    would be made were
accepted  on or  after September   1, 1983.     There did   not
exist any personal use restriction   on  political   contribu-
tions before that date.




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Honorable   Mike   Driscoll   - Page    2   (JIG856)




        candidate for or holder    of a vublic          office.
        The term does not include:

            (1) pavments     made to defrav ordinarv          and
        necessarv    exoenses     incurred     in    connection
        with activities     as a candidate    or in      connec-
        tion   with   the    verformance     of     duties     or
        activities    as    a vublic     officeholder,        in-
        cluding payment of       rent, interest,        utility,
        and other    reasonable     housing     or    household
        expenses   incurred   in maintaining      a   residence
        in Travis County by       members of the        legisla-
        ture who do not      ordinarily    reside in      Travis
        County: or

            (2) payments     of federal income taxes     due
        on   interest    and   other   income   earned    on
        political   contributions.     (Emphasis added.)

      The reimbursement      of personal     funds from    political
contributions    is permissible,    if the original    disbursement
was for campaign    or officeholder     purposes.     Election     Code
§253.035(h).2     The   sheriff's   use   of   political    funds    to
replace a cash      shortage   in   an   official   account     or   to
reimburse   himself   for such a payment     is prohibited      if the
disbursement    of political    funds is considered       a personal
use.   A civil sanction     is imposed by Election      Code section
253.035(f)    for a conversion     in violation    of   the personal
use restriction.

      Before   we  can   determine    whether   the    payment   or
reimbursement   from political   contributions    is permissible,
we must establish    the sheriff's   statutory  duties in regard
to the money    in his official    account.    Article   17.02   of
the Code    of  Criminal   Procedure    defines    bail    bond  as
follows:

           A 'bail   bond' is   a written    undertaking
        entered   into  by  the   defendant    and    his
        sureties  for the appearance   of the principal
        therein before some    court or magistrate      to
        answer   a criminal    accusation:     provided,
        however,  that the  defendant   upon   execution



       2.   Your request does not suggest that      any campaign
purpose was     involved  in   the transaction:   therefore,   we
will   consider    your   question  only   in   the   context  of
officeholder    purposes.




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Honorable   Mike   Driscoll   - Page     3 (JM-856)




        of such    bail   bond    may    deposit   with    the
        custodian   of funds of the court in which the
        prosecution    is pending current money of         the
        United States in the        amount of the bond       in
        lieu of    having sureties       signing the     same.
        Any cash funds deposited        under this    Article
        shall   be   receivted      for   bv   the    officer
        receivina   the same and shall be refunded          to
        the defendant     if    and   when    the  defendant
        comnlies with     the conditions       of his   bond,
        and uvon    order    of   the    court.     (Emphasis
        added.)

A sheriff's  authority   to take a bail        bond in a misdemeanor
case is found    in article   17.20 of         the Code of   Criminal
Procedure,  which states:

            The sheriff, or    other peace officer,     in
        cases of   misdemeanor,   may,   whether  during
        the term of the court or in vacation,       where
        he has a defendant     in custody, take of    the
        defendant   a bail bond.

      In addition to the      issuance of receipts       required by
the Code of Criminal     Procedure,   article     17.02, sunra, the
sheriff may be     required by article      17.39 of the      Code of
Criminal   Procedure  to keep a detailed      record    of each bail
transaction.     That article provides:

            A magistrate    or other     officer who     sets
        the amount of bail      or who takes bail       shall
        record in a well-bound      book the name of      the
        person whose     appearance   the   bail    secures,
        the amount of     bail, the date      bail is    set,
        the magistrate     or   officer who     sets    bail,
        the offense or     other    cause for    which    the
        appearance   is   secured,    the   magistrate      or
        other officer who takes       bail, the date      the
        person is    released,     and the    name   of   the
        bondsman,   if any.

You do not    indicate in your request         letter whether     the
Harris County    Sheriff keeps     the    record contemplated      by
this provision.     However, we    do understand     that   the cash
shortage was    discovered     as  a   result    of   discrepancies
between the cash     on hand and     copies of the     receipts   for
cash issued    pursuant    to article     17.02   of the    Code   of
Criminal  Procedure,    suora.

      Before beginning to perform          the duties of his office,
a person elected as sheriff must           take an   oath and execute



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Honorable   Mike   Driscoll   - Page   4   (JM-856)




a bond.    A   failure to take      the oath    and to execute      the
bond in    a timely     manner renders     the    office of    sheriff
vacant.    Local Gov't      Code 585.001.      Among the     statutory
conditions     of   the   mandatory    bond    are     the   sheriff's
faithful performance       of  the duties of      office established
by law   and the     sheriff's   accounting     for    and paying    to
persons authorized      to receive them the fines, forfeitures,
and penalties     the sheriff     collects    for   the    use of   the
state or a county.       Local Gov't Code §85.001(b).

      We understand   that the cash shortage      in Harris County
is attributable   not to    the sheriff personally      but   to one
of his deputies.      This fact is of no legal         consequence,
because the    sheriff is    statutorily     responsible    for   the
official  acts of a deputy.       Local Gov't     Code 585.003(d).
The sheriff    may require    a deputy    to execute     a bond    or
other security,     and   the sheriff    has   the same     remedies
against a deputy and his sureties as any          other person has
against the sheriff and the sheriff's        sureties.    Id.

      In Attorney   General Opinion H-751 (1975), this office
was asked about the liability       of a sheriff and his bonding
company  for   shortages     of  fines   and   cash   bonds.      The
opinion relied     on   former   article    6870,   V.T.C.S.     (now
codified  as   Local    Gov't   Code   585.003(d)),     to   find    a
sheriff liable for the misappropriation         of  cash bonds and
fines collected   by    his deputies.     The sheriff's      bonding
company was also liable for the loss discussed          in Attorney
General Opinion H-751:

        Concerning     the   liability     of  the   bonding
        company, the     general    rule    is that     \[i]n
        order to hold such a surety, there must be a
        violation   of   the   condition    of  the   bond.'
        Aetna Casualty     & Suretv Co. v. Clark, suvra,
        at 80.    Since the accounting      for fines is an
        express condition     of the bond, and since the
        accounting    for bail bonds is a duty required
        of sheriffs by law and thus also a condition
        of the bond, in our opinion the surety would
        be liable for the failure of the sheriff           to
        account for these funds        whether or not     the
        failure to account is due to a deputy.

Attorney   General Opinion H-751 (1975).      See   also Attorney
General Opinion JM-517     (1986) (the commissioners     court and
county auditor may not relieve       a justice of the     peace of
liability   for shortages    of public   money received    by   the
justice):   Attorney  General Opinion H-360      (1974) (district
clerk liable for disappearance       of trust funds     in clerk's
possession).



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Honorable   Mike   Driscoll    - Page    5 (JM-856)




      Thus, among     a  sheriff's     statutory    duties     are   the
execution   of   a bond    to account     for    funds he    collects:
refunding   a defendant's     bond money      upon the     defendant's
compliance   with the conditions      of his    bond: liability      for
the official     acts   of   his   deputies;      and   the    faithful
performance    of   his    duties.     In   our    opinion,     a   cash
shortage   in an official account reflects a           failure on the
part of the sheriff or his deputy to perform his duties in
accordance   with law.     The sheriff and his        sureties may be
sued for any shortage.

      Your request indicates that the sheriff has an agree-
ment with his bonding company       that he may be sued    by the
company for    any  payments    made   by the    sheriff  on  the
sheriff's  bond.   As you describe      it, the sheriff is   in a
position  of personal   liability   to his   bonding company for
any loss it sustains on the sheriff's       behalf.

      The sheriff of Harris         County is responsible         for the
supervision    of   hundreds    of   employees.      In   our view,    he
cannot realistically        personally      supervise   every    act   of
every one of those employees.           Proper accounting      for those
funds clearly      seems    to    be an    "ordinary    and    necessary
expense"    of    office.      In   our    opinion,     a payment      or
reimbursement     from    the sheriff's       political   fund   account
for the    purposes    described      here would     not constitute      a
diversion    to    "personal      use,"    as   defined     in   section
253.035(d).     We believe that        such an expenditure        for the
purposes   described      herein    would be      a  "payment made     to
defray    ordinary     and     necessary      expenses    incurred     in
connection   with the performance         of duties or activities      as
a public officeholder."

                               SUMMARY

             A sheriff may use his campaign     or office-
       holder contributions    to pay or reimburse      cash
       shortages   in his official    account.     The   use
       of political    funds   for  this   purpose     would
       not violate the    personal use    restriction      of
       section 253.035 of the Election Code.




                                           J-h
                                            Very   truly   you
                                                    N


                                            JIM      MATTOX
                                            Attorney  General    of Texas

NARY KELLER
First Assistant     Attorney     General



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Honorable   Mike   Driscoll   -     Page   6   (m-856)




mu   MCCREARY
Executive   Assistant     Attorney     General

JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney          General

RICK GILPIN
Chairman,  Opinion      Committee

Prepared by Karen C. Gladney
Assistant Attorney General




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