                      .~UNTIN.T=NxAN      78711


                               December     3, 1973


The Honorable Bill Lofland                        Opinion No. H-   171
County Attorney
Rockwall, Texas 75087                             Re:   Procedure to be followed
                                                        in payment of claims
Dear Mr.   Lofland:                                     against counties

      Your letter requesting our opinion advises that Rockwall County has
no auditor and, in the past, has followed the procedure of having bills filed
with the County Clerk and submitted to the Commissioners    Court for appro-
val. If approved, a scrip orwarrant was issued by the County Clerk and
presented the County Treasurer for payment.

      The questions you have submitted to us are:

                   “What is the proper and legal administrative
            procedure to follow in Rockwall County, Texas, in
            the presentment and payment of bills and debts incurred
            by each of the county commissioner’s in the performance
            of their duties as commissioners?”

                  “What is the proper and legal procedure to follow
            in Rockwall County, Texas, in the presentment and pay-
            ment of all other bills and debts in the operation of the
            county business? ”

      Your request is prompted by a memorandum and a notice issued and
published by the County Treasurer.  The memorandum provides:

            “Each county treasurer    shall keep a well-bound book in
            which he shall register all claims against his county in
            the Elder of presentation, and if more than one is presented
            at the same time he shall register them in the order of
            their date. He shall pay no such claim or any part thereof.
            nor shall the same. or any part thereof, be received by any




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    The Honorable      Bill Iafland,   page 2   (H-171)




                   officer in payment of any indebtedness to the county
                   until it has been duly registered in accordance with
                   the provisions of this title.  All claims in each class
                   shall be paid in the order in which they are registered.

                   “In order to comply with the above statute, we wish to
                   advise the office holders of Rockwall County that all
                   claims and or bills will be registered inthe office of the
                   County Treasurer on the date that such claims are re-
                   ceived.   No claims and or bills will be paid by the County
                   Treasurer unless registered in accordance with this
                   statute. If there are any questions please feel free to
                   contact the County Treasurer’s    office. This change will
                   be effective Tuesday, September 11. 1973.”

           The notice, apparently mailed to persons and firms doing business
    with the county commissioners,   provides:

                    “The County Treasurers Office is making an effort to
                    comply with the laws of our State. In order to comply with
                    the law we need your co-operation.  All claims, bills and
                    accounts against Rockwall County must be registered in
                    the Office’of the County Treasurer on the date received.

                    “Please mail all your claims to the County Treasurer.
                    This will simplify our new procedure and enable us to
                    comply with the law concerning the County and your claim.

                    “Please make sure that all invoices are signed by the per-
                    son receiving the merchandise.    This will expedite the
                    processing of your claim.   No claim will be paid unless
                    it has been registered with the County Treasurer. ”

              Statutes having to do with the creation of the office of county treasurer
        and his functions and duties are contained in Title 36, Articlml703 to 1714,
        V. T. C. S. Those having to do with county finances, other than those relating
        to the county auditor, are found as Chapter 1 of Title 34, Articles 1607 to
        1644d. V. T. C. S.




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     The Honorable Bill Lofland,       page   3   (H-171)




             In 1971, the Legislature expressly amended Article 1709 of the
     Statutea,   defining the duties of the County Treasurer,   and adopted whrt
     has been codified as Article 17090. V. T. C. S., dealing with the same
     subject matter. (Acts 1971, 62nd Leg., R.S.,      ch. 467, p. 1654). Although
     it did not expressly amend or repeal statutes ir Title 34, County Finances,
     the Act had the effect of gathering into one article all of the statutes  bear-
     ing upon the functions and duties of the Treasurer.      The caption of the
     Act is:

                           “An Act amending Article 1709. Revised Civil
                    Statutes of Texas, 1925, as amended, providing for
                    the receiving, safekeeping and disbursing of all moneys
                    belonging to the county by the County Treasurer; pre-
                    scribing andclarifying the duties of the County Treasurer
                    pertaining thereto; making said duties applicable to each
                    County Treasurer of the State: making them chief custo-
                    dians of county moneys and liable for any willful dere-
                    liction of duty or misuse of funds; pertaining to duties
                    of other officers with responsibilities   related totcounty
                    money: providing a severability    clause; pr0viding.a
                    clarifying clause: and declaring an emergency. I’

              Section 7 of the Act,   the so-called     “clarifying    clause’.’ states:

                           “The need to clarify       the receiving.    safekeeping    and
                     disbursing of county moneys and to prescribe the duties of
                     County Treasurers in the handling of moneys belonging to
                     the counties create an emergency. . . . ”

                Article 1709, as amended, provides that the County Treasurer,   “as chief
         custodian of county finances” is to receive all moneys belonging to the county
         from all sources. is to keep an account for them. is to pay and apply or dis-
         burse them “in such manner as the Commissioners     Court may require or
         direct. . . .‘I

               Section 2 of Article 1709a deals with the receipt of funds by the Treasurer.
         Section 3 has to do with their safekeeping.  Section 4 deals with the disburse-




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    The Honorable     Bill   Lofland,   page   4     (H-171)




    ment of county fundr.  It provides generally that the County Treasurer
    “shall disburse all moneys belonging to the county, for whatever purpose
    they may be claimed, and shall pay and apply the same as required by law.
    No money shall be expended or withdrawn from tire county treasury except
    by checks or warrants drawn on the county . . . .‘I The detailed provisions
    of 54 are:

                           (a) The treasurer is required to enter’leach
                   claim”in a bound register stating the class, the name
                   of the payee and the number of the claim.

                          (b) The treasurer   may pay no claim until it has
                   been duly registered and all claims in each class are
                   to be paid in the order in which they are registered.

           Section 4(c) applies to counties having a county auditor and is not
    applicable to RockwallCounty.

              Section~4(d) deals with warrants  and requires the treasurer,  upon
        presentation to him of “any warrant, check, voucher or order drawn by the
        proper authority” if there are sufficient funds to pay the warrant in the
        account against which it is drawn. to endorse upon it his order to pay it.

               The first paragraph of the memorandum issued by your County Treasurer
        is Article 1625, V. T. C. S., verbatim. And see Article 1709a. 5 4(b).

               The notice which we have quoted above would indicate that the County
        Treasurer interprets the statutory language to mean that he is toregister
        claims, bills and accounts before they have been approved by any other county
        officer.

               We believe that he has misconstrued the statutory language.    Article
        1713, V. T.C.S.,  provides that the County Treasurer shall not pay any money
        out of the County Treasury except i4 pursuance of a certificate or warrant
        “from some officer authorized by law to issue the same.”     It is our opinion
        that the Treasurer as stated in Article  1709, as amended in 1971, is a custodian.
        He is to receive moneys belonging to the County, to keep and account for them.
        and to disburse them “in such manner as the Commissioners       Court may require




                                                   p. 785
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        The Honorable Bill Lofland,      page 5      (H-171)




        or direct. ” The duties imposed upon the Treasurer by this Article and
        others we have cited herein, are, in our opinion, ministerial only and
        require the exercise of no discretion.

               The County Commissioners      and their court, on the other hand, are
        given the express authority and duty to “[a]udit and settle all accounts against
        the county and direct their payment. ” Article 2351, Q10, V. T. C. S. Without
        the approval of the County Commissioners,       the issuance d a county warrant
        is in violation of the statutory duties of the Treasurer.    Padgett v. Young
        County, 204 S. W. 1046 (Tex. Civ. App., Ft. Worth, 1918, err.dis’m.,       229
        S. W. 459 (Tex. 1921); Gussett v. Nueces County, 235 S.W. 857 (Tex. 1921);
        Denman v. Coffee, 91 S. W. 800 (Tex. Civ.App.,       1906).

                   It is our opinion, therefore, that the proper procedure to be followed
            with all claims against the county, other than jury scrip and scrip issued for
            feeding jurors (see Article 2122, V. T. C.S.) is for any claim, bill or account
            for any expense or indebtedness of the camty to be submitted to the Commis-
            sioners Court for its approval.     If it is approved, a warrant should be drawn
            by the county clerk and submitted to the County Treasurer for his endorse-
            ment (Article 25541. It is at that time that claims should be placed upon the
            register maintained by the County Treasurer in the order of their date.

                                                     SUMMARY

                               The County Treasurer is a custodian of funds and
                        has no authority to approve or disapprove claims presented
                        for payment. A claim. approved by the proper county autho-
                        rities, when presented to the Treasurer,   should be registered
                        and paid according to date. If funds are unavailable, claims
                        should be paid in the order in which they are registered as
                        funds do become available.

                                                               Very truly yours,




                                                               JOHN L, HILL
                                                               Attorney General of Texas




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         The Honorable   Bill   Lofland.   page   6        (H-171)




         APPROVED:




         DAVID M. KENDALL,           Chairman
         Opinion Committee




                                                      p.   787
