                           @ffice of toe JZlttornep@merat
                                         &dateof QCexae
DAN MORALES
 ATTORNEY
      GENERAL                              February 21, 1995

     Honorable Mike Driscoll                          Opinion No. DM-324
     Harris County Attorney
     1001 Preston, Suite 634                          Re: Whether a justice of the peace may
     Houston, Texas 77002-1891                        contract with his or her employees to
                                                      assume liabiity for shortages, and related
                                                      questions (RQ-489)

     Dear Mr. Driscoll:

             You inform us that the Risk Management Department of Harris County has
     recommended that a particular justice of the peace adopt an office policy providing that
     employees who handle money will assume liability for any shortages. It is suggested that
     the judge’s employees sign an authorization consenting to the policy and that they be held
     accountable for shortages through some means such as payroll deductions. In connection
     with this proposal, you ask the following questions:

                May a justice of the peace contract with his or her employees to
                assume liability for shortages?

                If so, by what means can he enforce such agmement?

              Article XVI, section 61 of the Texas Constitution provides that “[all) fees earned
     by district, county and precinct officers shah be paid into the county treasury.” A public
     officer who collects public funds “is bound to account for and pay over the money he
     collects.” Coe v. Force, 50 SW. 616, 618 (Tex. Civ. App. 1899, writ refd) (holding
     county treasurer liable for county funds stolen through no fault of the treasurer’s). The
     duties of a public officer entrusted with public &utds “are prescribed . . by the law and by
     the terms of his bond.” Puole v. Bumet Cot&y, 76 SW. 425,427 (Tex. 1903). Pursuant
     to section 27.001 of the Government Code, a justice of the peace must give bond
     conditioned that he will “promptly pay to the entitled party all money that comes into the
     justice’s hands during the term of office.” Thus, a justice of the peace, like other public
     officers, is strictly liable for the money that is actually collected by him. Id at 427, Coe,
     50 SW. at 618; Attorney General Opinion TM-517 (1986); see Attorney General Qpiions
     JM-1055 (1989) (discussing statute that may reheve county tax assessor-collector of
     liability for loss of public funds); JM-398 (1985) (tinding county liable for reimbursiig
     county jail inmates for money stolen by escaping prisoner); H-360 (1974) (tinding district
      clerk liable for trust finds that “mysteriously disappeared” from clerk’s possession). Buf
     see Local Gov’t Code 8 157.903 (authorizing commissioners court to indemnify a county
     officer against personal liability for loss of county timds if loss did not resuh from officer’s
     negligence or criminal action).



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Honorable Mike Driscoll - Page 2          (DM-324)




         Section 112.052 of the Local Government Code makes the justice of the peace
liable for tunds that he was required to collect:

              (a) A fine imposed or a judgment rendered by a justice of the
          peace shall be charged against that justice.
               (b) The justice may discharge the indebtedness by:

                    (1) filing with the county clerk the county treasurer’s
               receipt for the amount of the indebtedness;

                    (2) showing to the satisfaction of the commissioners court
               that the justice has used due diligence to collect the amount
               without avail; or

                    (3) showing to the satisfaction of the commissioners court
               that the indebtedness has been satisfied by imprisonment or
               labor.

Thus, the justice of the peace must pay to the county treasurer the money deriving Tom
fines imposed and judgments rendered, unless he can discharge this indebtedness by
making the showing required by subsection (b)(2) or (3) of section 112.052. The
commissioners court may deduct an uncollected fee or commission from the justice of the
peace’s salary if it finds that he has failed through neglect to collect a fee or commission
that he is required by law to collect. Local Gov’t Code $ 154.009; see Eguia v.
Tompkins, 756 F.2d 1130 (5th Cir. 1985) (upholding collection of fees from justice of the
peace under section 154.009 of Local Government Code); Hurrii County v.
Schoen~ucher, 594 S.W.2d 106 (Tex. Civ. App.-Houston [lst Dist.] 1979, writ refd
n.r.e.) (holding that chief juvenile probation offmer was employee and therefore was not
liable under predecessor of Local Government Code section 154.009 for failure to pay
fees into county treasury).

         The justice of the peace may not free himself from his common law and statutory
liability for collecting funds and paying them to the county treasurer by attempting to
delegate such liability to his employees. See Newsom v. Adams, 451 S.W.Zd 948 (Tex.
Civ. App.--Beaumont 1970, no writ); Moody v. Texas Wafer Comm’n, 373 S.W.Zd 793
(Tex. Civ. App.--Austin 1963, writ ref d n.r.e.); Wagner v. Urban, 170 S.W.2d 270 (Tex.
Civ. App.--Amarillo 1943, no writ); Attorney General Opinion H-386 (1974). Nor may
he contract with his employees to transfer his liability to them. Attorney General Opinion
Jh4-856 (1988) (stating that sheriff was responsible for shortage in timds attributable to a
deputy).

       Although the justice of the peace remains strictly liable to the county treasury for
the money he collects, his employees are liable to him under common law for damages
they cause him by their own negligence. See Yarborough v. Fulron, 78 S.W.2d 247 (Tex.
Civ. App.--El Paso 1935, writ dism’d); Commercial Stare Bunk v. Van Hu?fon, 208 S.W.



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Honorable Mike Drlscoll - Page 3         (DM-324)




363 (Tex. Civ. App.--San Antonio 1919, no writ). If the justice of the peace must
reimburse the county for shortages of public timds caused by an employee’s negligence or
misconduct, he may seek damages from the employee. In our opinion, the justice of the
peace may require employees to provide, as a condition of employment, a written
acknowledgment and acceptance of liability for shortages in collections that are caused by
the employee’s negligence or misconduct. See Gov’t Code 4 27.056 (authorizing justice
of peace to designate one or more persons to serve as clerk); Local Gov’t Code 5 15 1.901
(authorizing commissioners court to enter order. to employ secretarial personnel for
precinct officer), see also Attorney General Opinions IM-521 (1986) (holding that
commissioners court has authority to set conditions of work for persons it employs but not
for employees of other elected county officers); M-l 197 (1972) (commissioners court
does not have authority to set office hours for employees ofjustice of the peace).

       You also ask how the justice of the peace may enforce this agreement against an
employee who is responsible for a shortage. In particular, you inquire whether the justice
of the peace may withhold the employee’s paycheck, or deduct the money from his
paycheck.

         Since an employee would be liable for his shortages to the justice of the peace
individually, and not to the county, there would be no basis for invoking section 154.025
of the Local Government Code, which prohibits drawing a warrant on a salary fimd in
favor of a person “who is indebted to the state, the county, or the salary fund.” See
Orange Comfy v. Ware, 819 S.W.2d 472 (Tex. 1991) (withholding of county
commissioner’s salary for debts created by bail bond forfeiture judgments did not
constitute garnishment of current wages); Attorney General Opinion WW-1504 (1962)
(holding that predecessor of Local Government Code section 154.025 did not permit
withholding of deputy sheriffs salary based on charges that deputy misappropriated timds
and on deputy’s partial restitution, in absence of judicial decision). See also Attorney
General Opinions JM-255 (1984); MW-416 (1981); Letter Advisory No. 57 (1973)
(construing former article 4350, V.T.C.S., now section 403.055 of Government Code,
prohibiting issuance of warrant to person indebted to state).

        This office has held that the county could not authorize payroll deductions from a
county employee’s salary without express statutory authority. Attorney General Opinion
JM-38 (1983). \Chapter 155 of the Local Government Code, which authorizes deductions
from county employees’ compensation for various specific purposes, does not include a
provision authorizing payroll deductions for debts owed by county employees. See
generally Educ. Code 8 2.07 (authorizing voluntary salary deductions from salaries of
teachers and school employees as security for indebtedness); Attorney General Opinion
JM-53 (1983) (construing section 2.07 of Education Code). Accordingly, there is no
authority for the justice of the peace to enforce payment of an employee’s debt to him
through a deduction from the employee’s salary.




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Honorable Mike Driscoll - Page 4          (DM-324)




                                   SUMMARY

                A justice of the peace is strictly liable for paying to the county
          treasury fees and other funds actually collected by him, subject to
          statutory remedies. A justice of the peace may not free himself of his
          liability for collecting timds and paying them to the county treasury
          by attempting to transfer this liability to his employees, by agreement
          or delegation. However, if a justice of tbe.peace must reimburse the
          county for shortages of public funds caused by an employee’s
          negligence or misconduct, the employee is liable to the justice of the
          peace for the loss. The justice of the peace may rcyuire the
          employee to provide, as a condition of employment, a written
          acknowledgment and acceptance of liability for shortages in
          collections that are caused by the employee’s own negligence or
          misconduct. Section 154.025 of the Local Government Code does
          not authorize enforcement of this agreement by withholding the
          employee’s salary warrant, nor do we find any provision for
          enforcing it by payroll deduction.




                                                     DAN     MORALES
                                                     Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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