              E                 Y   GENE-




                     June 6, 1962

Mr. Jack Fields                     Opinion No. W-1347
County Attorney
Calhoun County                      Re:   Whether it is now too
Port Lavaca, Texas                        late for the Board of
                                          Navigation Commissioners
                                          of the Calhoun County
                                          Navigation District to
                                          advertise for a separate
                                          depository for the sole
                                          purpose of depositing
                                          its tax funds and related
Dear Mr. Fields:                          question.
          You request our opinion on whether It is now too late
for the Board of Navigation Commissioners of the Calhoun County
Navigation District to advertise for a separate depository for
the sole purpose of depositing its tax funds and a related ques-
tion.
          A summary of the relevant facts show that the depos-
itory for the navigation district was selected in 1955 by the
navigation commissioners. Additionally and thereafter funds
received from revenue bonds supported by a tonnage agreement
and federal funds for construction of the Matagorda Ship
Channel also have been placed in a depository selected by the
Navigation Commissioners. The question concerns the depository
for the tax funds, as in the selection of the depository for the
funds from the revenue bonds no provision was made concerning the
deposit of the tax funds. Further the Commissioners' Court of
Calhoun County has not made any provision for the deposit of said
funds and there are no bonds, warrants or other indebtedness to
be secured by the taxes.
          The Calhoun County Navigation District was created
by Senate Bill 302, Acts of the 53rd Legislature, 1953, Chapter
195 page 535. In its creation‘it was authorized to exercise
all of the rights, privileges and functions of a Navigation
District created under the authority of Chapter 9, Title 128,
Vernon's Civil Statutes of Texas, containing Articles 8198
through 8263k, Vernon's Civil Statutes. Within Chapter g,Title
128 there are Articles 8244 and 8244a pertaining to the selection
of depositories.
Mr. Jack Fields, page 2 (WW-1347)


           Article 8244, Vernon's Civil Statutes, states as
follows:
         "The navigation and canal commissioners of
    all navigation districts, whether created pur-
    suant to Section 52 of Article 3 or Section 59
    of Article 16 of the Constitution, shall select
    a depository or depositories for such district
    under the same provisions as are now or may
    hereafter be provided by law for the selection
    of the depository for the counties in this State,
    The navigation and canal commissioners in the
    selection of depositories shall act in the same
    capacity and perform the same duties as is in-
    cumbent upon the county judge and the members
    of the county commlssionerst court in the sel-
    ection of the county depository. Such depository
    or depositories selected or to be selected for
    such navigation district shall have all the
    powers and duties in the execution of a depository
    bond or bonds and/or tn the pledging of collateral
    in lieu of or in addition to a personal surety
    or surety company bond as now provided by law or
    as may be provided by law in the selection of
    county depositories. When such depository or
    depositories have given bond or bonds as pro-
    vided by law and the same have been approved
    by the navigation and canal commission, the
    county treasurer shall be req~uiredto give only
    s:jchbond as the navigation and canal commissioners
    may require."
           Article 8244a, Vernon's Civil Statutes, states in
part:
         "Section 1. This Act shall apply to all
    navigation districts heretofore or hereafter
    created under the provisions of Chapter 5, Acts
    39th L,gislature, Regular Session, 1925, as
    originally enacted or as subsequently amended
    or as hereafter amended, hereinafter referred
    to as 'Districts'. The term 'revenues' as
    used herein shall include all revenues, income,
    moneys, funds, or increment which,n:aygrow out
    of the ownership and operation of a District's
    improvements and facilities, but moneys derived
    from taxation are specifically excluded from
Mr. Jack Fields, page 3 (1W-1347)


     said term and this Act shall have no applica-
     tion to tax funds." (h'mphasisadded)
          It can be seen that Article 8244a does not apply to
money derived from taxation; therefore Article 8244 applies
and we must go to the statutes relating to the selection of
county depositories. Provisions regulating the selection of
county depositories are found in Articles 2544 through 2558a,
Vernon's Civil Statutes.
          Article 2544, Vernon's Civil Statutes, provides:
          "The Commissioners Court of each co:lntyis
     hereby authorized and required at the Febr::ary
     iiegularTerm thereof next following each general
     election to enter into a contract with any banking
     corporation, association or individual banker in
     such county for the depositing of the public
     funds of such county in such bank or banks. Notice
     that such contracts will be made by the Commis-
     sioners Court shall be published by and over the
     name of the County Judge, once each week for at
     least twenty (20) days before the commencement of
     such term in some newspaper published in said
     county; and If no newspaper be published therein,
     then in any newspaper published in the nearest
     county. In addition thereto, notice shall be
     published by posting same at the courthouse door
     of said county."
          This has been inter reted in Cave vLMontgomery,    274
S.W.2d 855, 856 (Civ.App. 195E ) as meaning:
          II
           . . .The law, in effect, requires the Commis-
     sioners Court of the county to select a county depos-
     itory every two years at its regular February term
     following each general election, as soon thereafter
     as wisdom, prudence and prevailing conditions will
     justify such action.  . . .’

          Article 2555, Vernon's Civil Statutes, provides:
          "If for any reason, no selection of a
     depository be made at the time provided by
     law, the Commissioners Court may at any
     subsequent time a:?tertwenty (201 days 1 notice
     select a depository or depositories in the
Mr. Jack Fields, page 4 (WW-1347)


     manner provided for such selection at the
     regular time; and the depository or depos-
     itories so selected shall remain the depository
     or depositories until the next regular time for
     selecting a depository, unless the order selecting
     and naming such depository be revoked for lawful
     reasons."
          Therefore, the Board of Navigation Commissioners
is authorized to receive bids and go about the selection of
a depository just as if they were selecting it at the regular
time.  It Is the opinion of this office that this Article
applies where the Board of Navigation Commissioners have not
advertised to receive bids. Therefore, your first question
is answered in the affirmative. The said Board may now by
following the requirements of Article 2555, Vernon's Civil
Statutes, select a new depository.
          The answer to your second question, i.e., whether
the funds may be withdrawn from the bank in which the funds
are presently on deposit, in the event another bank is then
selected as the depository, is also In the affirmative. The
law requires the selection of a depository every two years.
Article 2544, Vernon's Civil Statutes, and Cave.v. Montgomery,
supra.
         "Public officers are but agents whose
    authority is defined and limited by the law
    and therefore known to all persons dealing
    with them. Their acts beyond their lawful
    powers are ineffectual to bind the public
    which thev reoresent. and their neelect and
    lathes can seidom affect public rights."
    Hale County, Texas v. American Indemnity,
    b3 F2d 2'r'5
               (1933).
It is our opinion that merely allowing the funds to stay in a
depository after the time for the new selection does not estop
the navigation commissioners from withdrawing the fiends. Since
Article 2555, Vernon's Civil Statutes,,authorizes the selection
of a depository after the time when the selection is required
by law to be made, then surely it is reasonable to assume that
the commissioners have the authority to withdraw the funds and
re-deposit them in the depository that they have been authorized
to select. Therefore, it is the opinion of this office that the
fY;ndsmay be withdrawn from the present depository and deposited
in the newly selected depository, assuming the statutes relating
to bonds and approval of such bonds are followed.
Mr. Jack Fields, Page 5 (W'N-1347)


                     SUMMARY
          The Board of Navigation Commissioners is
          authorized by Article 2555, Vernonrs Civil
          Statutes, to advertise for a depository
          of its tax fund where such a selection
          has not been made since 1955.
          The Board of Navigation Commissioners of
          Calhoun Navigation District may withdraw
          the tax funds from the present depository
          and deposit them In whatever qualifying
          depository It selects.


                          WILL~WILSON
                          Attorney General of Texas



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APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Arthur Sandlln
Robert S&field
Elmer McVey
Bill Allen
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
