                                                                              R-268




PRICE   DANIEL
ATTORNEY GENERAL




        Hon. Ben L. King                           Opinion   No.   V-120
        County Attorney
        Burnet County                              Re:   Whether     any individual,
        Burn&,  Texas                                    association     or corporation
                                                         other than a banking cor-
                                                         poration,    association    or
                                                         private   banker may act as
                                                         csunty depository.

        Dear    Sir:

                        You request an opinion    from   this department      upon the
        above      subject matter as follows:

                      1. “Under Title 47, Chapter Two, Article             2546,
                Revised     Civil Statutes of Texas,      relating   to selec-
                tion by the Commissioners’          Court of the county de-
                pository,    would the Commissioners’           Court be per-
                mitted thereunder,       or by law, to select as the county
                depository,     a partnership    consisting     of a group of
                individuals     who are engaged in numerous          pursuits
                for gain, but which is not organized           as a business
                with banking privileges,       has no paid up capital stock
                or permanent       surplus and does not purport to be and
                in fact is not acting as a banking corporation,            asso-
                ciation or individual      banker?

                      2. “If it is lawful for the Commissioners’        Court
                to select such a partnership     as the county deposi-
                tory, would a personal     bond which is executed      by the
                individual   members    of said partnership   only, be in
                compliance    with, and as contemplated     in Article
                2547. Section (a) of said Act?”

                      Chapter Two of Title 47 beginning          with Article     2544
        deals with the subject of county    . -
                                                 depositories.     Article    2544 au-
                                                                                      .~.
        thorizes   the Commissioners’         Court to enter into a contract        with
        any “banking corporation,         association    or individual     banker” for
        the depositing      of the public funds of the county in such bank or
        banks.    Article     2545 provides   for applications     by *any banking
        corporation,      association   or individual    banker” desiring      to be des-
        ignated as county depository.
  Hon. Ben L. King,   Page   2                          Opinion   No.   V-120




             Article 2546 makes it the duty of the Commissioners’
  Court on the first day of each term at which “banks”are       to be se-
  lected as county depositories,   to consider applicat$ns    and make a
  selection or selections  of a depository   or depositories.

              Article 2547 declares within fifteen days, it shall be the
  duty of the “banking corporation,  association,  or individual banker”
  so selected, to qualify as county depository.

              It is obvious the statutes contemplate     that the county de-
  pository must be a banking institution.     If this were not clear enough
  from the statutes themselves,     it would necessarily    be true because
  the business of a depository    of county funds is essentially    the ac-
  cepting of deposits and paying checks, which constitutes        the one un-
  failing exclusive banking function.

             In pursuance of Section 16. Article XVI of the Constitu-
  tion, the Legislature  has set up a comprehensive     system for super-
  vision, regulation and control of banking institutions,    which is of
  special need in the matter of our depositories    for public funds.

            You are therefore advised that the Commissioners’      Court
 is not authorized to select, as a county depository,   any person, part-
 nership, association   or group of persons whatsoever    other than a
 duly organized banking institution, association   or private banker
 with banking privileges   in this State.

            We may add, however, that if such depository had been
 improvidently   selected and had executed a depository    bond to the
 county, such bond would be valid as a common law obligation pro-
 tecting the county accordin   to its terms.   Such a bond would notbe
 in compliance with Section   a) of Article  2547 of the statutes.

                                 SUMMARY

             The Commissioners’     Court of Burnet County is
        not authorized to select as the county depository any
        individual, partnership,  or group of individuals what-
        soever other than a banking corporation,    association,
        or private bank. Articles   2544, et seq., V.C.S.    A
        bond executed by an authorized depository would be
        good as a common law bond to protect the county.

                                              Yours     very truly,

 APPROVED                              ATTORNEYGENERALOFTEXAS




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