                       Ausmiw    1,. TEXAS
                         June 29, 1964

Hon. Tom Blackwell        Opinion No. C-277
District Attorney
Travis County             Ret   Whether a County Auditor In a
Austin, Texas                   county having a population of
                                190,000 or more Is authorized
                                and required to audit funds col-
                                lected by a county official,
                                not for the county, but held as
                                an agent or trustee for private
Dear Mr..Blackwell:             Individuals.
         Your letter -ofMay 29, 1964~,reads in part as follows:
          %JESTION~   Is the County Auditor authorized
     and required to audit funds collected by a county
     official not for the county but held as an agent
     or trustee for private individuals.
         “FACTS : It:has been the custom for many
    years In the county for Justices of the Peace,
    County Attorneys and District Attorneys to accept
    reimbursement on 'hot checks' and to pay it di-
    rectly to 'themerchants involved without having
    this fund go through any official county channels
    and without being audited by the County Auditor."
          You further .ask for an Interpretation of Article I656a,
Vernon's Civil Statutesf~which reads in part as follows:
         "The Countv Auditor In counties having a OPU-
    lation of one hundred ninety thousand (190,000P or
    more according to thelast preceding or any future
    Federal Census g&jJ, prescribe the system of ac-
    counting for the county and the forms to be used by
    the District Clerk the District Attorney and all
    county and precinct officers and by all persons In
    the collection and disbursement of county revenues,
    funds, fee,s,md all other moneys collected,in an
    officialapacitv   whether belonging,to the county,
    its subdl&slons or precincts; or to, or for the use
    or benefit of, any person, firm, or corporation; he
    shall prescribe the mode and manner In which the
    District Clerk, the District Attorney and all county

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Hon. Tom Blackwell, page 2   (C-277)


    and precinct officers shall keep their accounts,
    and he shall have the power to require all offi-
    cers to furnish monthly, annual, or other reports
    under oath of all moneys, taxes, or fees of every
    nature received, disbursed, or remaining on hand;
    and In connection with such reports he shall have
    the right to count the cash on hand with such
    officer, or to verify the amount on deposit in the
    bank In which such officer may have placed the
    same for safekeeping. He shall have the Dower to
    adopt and enforce such regulations not lnconslst-
    tne with the Constitution and laws as he may deem
    essential to the speedy and proper colle tlon and
    checklna of and gccountlne:for, the rev&ues and
    g-fees                e n      to the countv or to
    MT De son. firm- or corm ation for whom-v     of
    f d orf
    her
    w ose-use                               ved or m
    hold such funds. . .. .I' (Emphasis added).
          The first sentence of the above quoted statute refers
to county funds and to "al.1other moneys collected in an official
capacity. . .'I The case of Nueces Countv v. Currinston, 139 Tex.
297, 162 S.W.2d 687 (1$t2)2 to which we may refer for help In de-
fining "official capacity, held that "a fee.paid a public officer
for the performance of a duty enjoined by statute is a fee col-
lected In an official capacity." There Is no statutory requirement
or authority in Texas for the collection by a county official of
money to cover "hot checks," with subsequent payment directly to
the payee of the check. Such a collection,  therefore, would not be
done In an "official capacity," the words "official capacity" re-
ferring to the status of an official when performing an act under
statutory duty, but such collection would be received under color
of authority by virtue of his office.
          In light of the foregoing, it Is the opinion of this of-
fice that the mandatory provisions contained In the first sentence
of the above Article 1656a do not apply to funds collected by a
county official as an agent or trustee for private individuals, and
that the County Auditor Is not required to audit such funds.
          The last sentence of that part of Article 1656a above
quoted specifically covers revenues and other funds and fees be-
longing to '*anyperson, firm, or corporation for whom any of said
officers may have made collections, or for whose use or benefit
they may have received or may hold such funds." The act states that
the County Auditor shall have the 18power18
                                          to adopt and enforce regu-
lations pertinent to the collection and checking of and accounting

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Hon. Tom Blackwell, page 3   (C-277)


for, such funds. Should a county official, in an official capa-
city with statutory authority or under color of authority by
virtue
 .     of his-office, receive
                         _.. or collect f?ds not belonging
                                                         .   to
the county, tne county auditor by vlrtue OS such power glVen to
that office in the provision stated, does have the authority to
audit funds so collected, not for the county, but held by the
official as an agent or trustee for private Individuals, firms
or corporations.
          The provision in Article 1656a concerning the deposit
and custody of such funds is covered by a previous opinion of this
department, No. WW-86 (1957).
                             SUMMARY
           A County Auditor, In a county having a popula-
      tion of 190,000 or more, is authorized, but not re-
      quired, to audit funds collected by a county official,
      not for the county, but collected or received under
      color of authority by virtue of his office, and held
      as an agent or trustee for private individuals, firms
      or corporations.
                               Yours very truly,
                               WAGGONER CARR
                               Attorney General



                               BY
                                      Edward P. Bolding
EPB:wb                                Assistant

APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Hawthorne Phillips
Pat Bailey
Paul Phy
W. 0. Shultz
APPROVED FOR THE ATTORNEY GENERAL
BY:   Stanton Stone


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