h




P                      April 4, 1988




    Honorable Stanley D. Curbo     Opinion No. JW-882
    Young County Attorney
    P. 0. Box 298                  Re:   Whether the signature
    Graham, Texas 76046            of the county auditor and/
                                   or county    treasurer    is
                                   required for withdrawal   of
                                   money from a trust      fund
                                   account administered   by a
                                   county or district     clerk
                                   (RQ-1041)

    Dear Mr. Curbo:

         County and district court clerks serve as trustees
-
    for money or property paid to or deposited with a court
    pending disposition   of a suit. See Civil Practice     and
    Remedies Code, 57.002 See also Lawvers Suretv Co. v.
    Reina, 483 S.W.2d 911 (Tex. Civ. App. - Amarillo      1972,
    writ ref'd n.r.e.); Harris Countv v. Sellers, 468 S.W.2d
    950 (Tex. Civ. App. - Houston [lst Dist.] 1971, reversed
    on other arounds,    483 S.W. 242   (Tex. 1972     Attorney
    General Opinion H-360   (1974). Article 2558a, 1; V.T.C.S.,
    governs the county commissioners* selection of depositor-
    ies for trust funds that are under the administration   and
    control of county and district clerks.     You ask whether
    the signature of either the county auditor or the county
    treasurer or both is required for the withdrawal of money
    from such a trust fund account administered by a county or
    district clerk.    Your question  is prompted  by the fact
    that the county treasurer, as chief custodian of county
    finances, is required to affix his signature to county
    warrants before they can be presented and honored by the
    county's depository.    V.T.C.S. art. 2554: see aenerallv



         LArts. 2558a,    2554, 1653,    1631, 1709,    1909a,
    V.T.C.S., have been repealed and re-codified,    effective
    September 1, 1987, with the Local Government Code.     See
    Acts 1987, 70th Leg., ch. 149, 551, 49.




                              p. 4308
Honorable Stanley D. Curb0 - Page 2 W-882)




  V.T.C.S.  arts. 1709, 1709a.      We conclude   that    the
  signature of neither the county treasurer nor the county
  auditor is required  for the withdrawal of money from a
  trust fund account administered by a county or district
  clerk. Money deposited with a court and administered by a
  county or district   clerk in a trust fund pursuant      to
  article 2558a, V.T.C.S., may be withdrawn only by a check
  drawn by the clerk having custody by law of those    funds,
  upon the order of the judge of the court in which the
  funds have been deposited.

       Title 47 of the Revised Civil Statutes      of Texas
  contains the statutes governing  the selection by various
  sorts of    political  subdivisions   in the    state   of
  depositories for various public funds.     Article  2558a,
  V.T.C.S., sets forth the provisions that are applicable to
  a county commissioners court selecting depositories    for
  trust funds under the administration and control of county
  and district clerks. Section 4a of article 2558a governs
  the placing of trust funds on time deposit and sets forth
  the following:

         The Commissioners   Court of each county,
         acting by and through the County Auditor, or
         if there is no County Auditor      then the
         County Treasurer,    of such    county,    is
         authorized to place on time deposit with the
         depository  bank for   trust funds in the
         possession of County and District Clerks   of
         such County, that portion of the trust funds
         account estimated by the County Auditor    or
         County Treasurer, as the case may be, as not
         required immediately to pay out all amounts
         in accordance  with proper orders of the
         Judge of the Court in which funds have been
         deposited.  If at any time the funds so
         placed on time deposit are required before
         maturity, they shall be made available     by
         the depository bank but the depository   bank
         shall not be liable for interest earned on
         such amount withdrawn   from time   deposit.
         The Commissioners  Court is authorized    and
         directed to receive all interest so earned
         on time deposit of such trust funds and to
         place all such interest into the General
         Fund of the County as an offset to the
         expenses of handling such trust funds for
         the benefit of litigants.
                                                                ?




                            p. 4309
Honorable Stanley D. Curb0 - Page 3    (X-882)




        Section 6 of article 2558a provides for payment upon
   the presentment  of checks and sets forth the following
   relevant provisions:

          It shall be the duty of the depository    to
          provide for the payment at the county seat
          of the county upon presentment al;1 checks
          drawn bv the Countv or District Clerk upon
          the funds deposited    in the name of such
          Clerk as long as such funds shall be in the
          possession of the depository subject to such
          checks.   (Emphasis added.)

       Section 11 of article 2558a sets forth the following
  relevant language:   "The funds deposited   by the Clerk
  shall be carried as a Trust Fund account   in the name of
  the Clerk making the deposit, and same shall be subject to
  withdrawal bv the Clerk under the conditions set out in
  the succeedina oaraaravh of this Act."  (Emphasis added.)
  Section 12 of article 2558a provides:

          Exceot uoon   n orde   of the Judae of the
          Court in which fundsrhave been deposited, no
          check shall be drawn on said depository  for
          any part of said funds bv the Clerk except
          for payment to the person or persons to whom
          the amount of said check is due. All checks
          drawn bv the Clerks shall show the style
          number of the proceeding in which money was
          deposited with the Clerk.  (Emphasis added.)

   See also section 13 of V.T.C.S. art. 2558a.

       Article XVI, section 44, of the Texas Constitution
  provides, inter alia, that the legislature shall prescribe
  the duties of the office of county treasurer.      Article
  1709, V.T.C.S.,  sets forth the duties of the county
  treasurer and provides the following relevant language:

          The County Treasurer, as chief custodian    of
          county finance, shall receive all moneys
          belona ina to the countv from whatever source
          thev mav be derived; keep and account      for
          the same in a designated       depository   on
          depositories; and oav and aoulv or disburse
          the same, in such manner as the Commis-
          sioners Court may require or direct, not
          inconsistent    with   constitutional     law.
          (Emphasis added.)




                             p. 4310
Honorable Stanley D. Curbo - Page 4   (JK-882)




  Article 1709a, V.T.C.S., providing    specifically for the
  receipt, safe-keeping  and disbursement   of county  funds,
  sets forth at section 4 the following relevant provisions:

         From and after the effective    date of this
         Act the Countv Treasurer     in each countv
         3
         cou
         ntv.fbToses                      thev mav be
         claimed. and shall oav and aoolv the same as
         reouired bv laW.       NO moneys   shall    be
         expended or withdrawn      from the    county
         treasury except by checks or warrants    drawn
         on the county treasury, whether such moneys
         are in a county depository    as required   by
         law or not.   (Emphasis added.)

  Article 2554, V.T.C.S., details the way in which county
  warrants  are to be paid and provides     the following
  relevant language:

            It shall be the duty of the county
         treasurer upon the presentation   to him of
         any warrant, check, voucher, or order drawn
         by the proper authority,  if there be funds
         sufficient  for the    payment thereof
         deposit in the account against which suzi
         warrant is drawn, to endorse upon the face
         of such instrument his order to pay the same
         to the payee named therein and to charge the
         same on his books to the fund upon which  it
         is drawn.

        Article 1651, V.T.C.S., sets forth the duties of   the
   county auditor and provides that

         [t]he Auditor shall have a general oversight
         of all the books and records of all the
         officers of the county, district or state,
         who may be authorized or required by law to
         receive or collect any money, funds, fees,
         or other property    for the    use of or,
         belonging to, the county. . . .

   See also V.T.C.S., arts. 1653, 1709a.

       We have found     no relevant    statutory  provision
  conferring either the authority  or the responsibility  to
  either the county treasurer, the county auditor, or both,
  for signing  instruments  authorizing   the withdrawal  of
  money from a trust fund account administered by a county



                            p. 4311
Honorable Stanley D. Curbo - Page 5   (JM-882)




  or district  clerk. That no statute contains     any such
  provision is understandable,   since the money deposited
  with a county or district clerk is not county money.   The
  only way in which money deposited in a trust fund pursuant
  to article 2558a may be withdrawn  is by a check drawn by
  the clerk having custody by law of those funds, upon an
  order of the judge of the court in which the funds have
  been deposited.

                          SUMMARY

            Neither the signature    of the    county
         auditor, nor that of the county treasurer is
         necessary for the withdrawal of money from a
         trust fund account administered by a county
         or district clerk pursuant to article 2558a,
         V.T.C.S. Money deposited in a trust fund
         pursuant to article 2558a, V.T.C.S., may be
         withdrawn only by a check drawn by the clerk
         having custody by law of those funds, upon
         an order of the judge of the court in which
         the funds have been deposited.



                                    L-L/h
                                      Very truly yo r ,
                                            w


                                      JIM     MATTOX
                                      Attorney General of Texas

   MARY KELLER
   First Assistant Attorney General

   MU MCCRKARY
   Executive Assistant Attorney General

   JUDGE ZOLLIE STKAKLKY
   Special Assistant Attorney General

   RICK GILPIN
   Chairman, Opinion Committee

   Prepared by Jim Moellinger
   Assistant Attorney General




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