            HE       OBEY           GENERAL

                    OF      TEXAS




Honorable W.P. Herms, Jr.
County Auditor
Wailer County
Hempstead, Texas
Dear Sir:                Opinion No. o-6459
                         Re: Construction of Article 1636---
                              Duty of Commissioners to count
                              cash in County Depository and
                              related questions.
       We have your request for an opinion on the above matter,
said request being as follows:
       "Each month the County Treasurer makes a
    report to the Commissioners' Court, filing same
    with me as County Auditor. With the Treasurer's
    report of Receipts, Disbursements, and balances,
    is included the~bank statement, issued.bg Citi-
    zens~state Bank, County Depository. I, as Audi-
    tor, reconcile said bank statement with the
    Treasurer's Report, and then In turn reconcile
    the Treasurer's report with my records. I then
    attach to the Treasurer's report a detailed ex-
    planation and analysis of these reconciliations,
    showing my balances, reconciled with Treasurer's
    balance, and in turn reconciled with the Bank
    Statement of County Depository. County Treasur-
    er submits her report to the Commissioners Court,
    through me, under affidavit,,that same Is correct,
    and I, in turn certify to the Court that same is
    correct.
       "However, at the regular meeting in February,
    County Judge refused to approve said reports be-
    cause Commissioner's Court had not complied with
    Article 1636 R.C.S. which follows:
       " 'Arte 1636 s TO INSPECT TREASURER'S ACCOUNTS.
    --When the Commissioners' court has compared and
    examined the quarterly report of the treasurer,
    and found the same correct, it shall cause an
    order to be entered upon the minutes of the court,
    stating the approval thereof, and reciting sepa-
Honorable W, P. Herms, Jr,, page 2        o-6459



   ratelg the amount received and paid out
                                        _- of each
   fund by the treasurer since the prececUngtrea-
   surer's quarterlg.report, and the balance of
   such fund, If any, remalnlng ln the treasurer's
   hands and the courtshall cause the proper credit
   to be made in the accounts of the treasurer, In
   accordance with said order. Said court shall
   actually inspect and count all the-actual cash
   and assets in the hands of the treasurer belong-
   ing to the county at the time of the examination
   of his said report. Prior to the adjournment of
   each regular term of thencourt, the county judge
   and each commlssloner shall make a'ffidavltthat
   the requirements of this article have been in
   all things fully complied with bg'them at safd
   term of said court and that the cash and other
   assets mentioned in said county treasurer's
   quarterly report made, by said treasurer to said
   court, and held by him for the county, have been
   fully inspected and counted by them giving the
   amount of said money and other assets in his
   hands. Such affidavits shall be filed with the
   county clerk and recorded In the minutes of said
   court the term at which the same were filed; and
   the same shall be published in some newspaper
   published in the county, if there be a newspaper
   published in the county, for one time.'
      "Since neither County Judge nor County Auditor
   is an attorney, we need an interpretation regard-
   ing this statute.
      "From the practical standpoint, the amount of
   cash on hand in The Citiiens State Bank, County De-
   pository, is far less than the $100,000 as shown
   on Depository statement, since this amount far ex-
   ceeds the cash reserve requirements for a bank of
   this size.
      "Therefore, my questions are the following:
      "1 . Is Commissioners Court required to actu-
   ally count cash in County depository; before ap-
   proving Treasurer's or Auditor's reports?
      "2 * Is depository statement-- i.e, bank state-
   ment-- issued by such depository bank sufficient.
   evidence to justify Commlsslonerh Court In approv-
   ing said reports on the basis of such statement,
   or can said statement be used in lieu of actually
   count@   cash?
Honorable W.P. Herms, Jr., page 3         o-6459



       “3 . My third question arises from the refusal
    of Commissioner's Court to either approve or re-
    ject County Treasurer's or County Auditor's re-
    port.
       "This refusal is equivalent to an lmpllcatlon
    that 'OUP house is not In order'. Just what steps
    do I, as Auditor, have the authority to take In
    demanding some actlon on this matter by Commisslon-
    ers Court?
       "If possible, I shall greatly appreciate your
    opinion on these matters before our ne~xtCommis-
    sioners Court meeting on March 12, 1945.


       Article 1636 of Vernon's Annotated Civil Statutes; to
which you refer, was passed in 1897.  Under the County Deposi-
tory Law, Title 47, Chapter 2, Articles 2544--2558, Vernon's
Annotated Civil Statutes, which was passed in 1905 and which
has been amended at various ,timessince it was orlglnallg
passed, It is made the duty of the County Treasurer, immedlate-
lg upon the selection of a County Depository, to transfer to
said Depository all of the funds belonging to the county, and
the bond of such County Depository shall stand as security for
all such funds. Since the passage of said'County Depository
Law, the provisions of A~tiela 1636 requiring the Commissioners'
Court to actually inspes% and count all of the actual cash and
assets in the hands of the Co,untyTreasurer belongingto the
,county'fsno longer in effect9 therefore,syour first question
is answered in the negative,
       ArSicie 2554 of Vernon's Annotated Cfvil Statutes re-
quires the County Depository to make to the Commissfoners'
Court monthly statements at each regular term of safd court
showfng the daily balances to the credit of each of the funds
on deposft, ‘Accordingiy; ft fs our opfnfon, in answer to
your second question, that the Commfssionerss Court fs author-
ized to consfder the bank's sba%emen%s Issued by the Deposi-
tory Bank as evidence upon which to base Its action in approv-
ing the County Treasurer's and County Auditor's reports as to
the cash on hand, but, whether OP not such statements would
be sufficient evidence in themselves to justify the approval
of such reports in all respects, we are no% able to say as
such statements might not reflect all the information necessary
for the court to pass on all ma%ers covered by said reports.
       We understand from your request that the Commissioners'
Cour% refused to approve the County TPeasur&s and County
Honorable W. P. Herms, Jr., page 4           O-6459



Auditor's reports because they had not actually inspected and
counted all of the actual cash and assets In the hands of the
County Treasurer belonging to the county. Therefore, we do
not answer your third questlon, since the Commissioners' Court
will likely now be wil~llngto pass upon said reports.
      ~Trusting that this satisfactorily answers your inquiry,
we remain
                                     Very truly yours
                              ATTORNRY GRWRRAL OF TFXAS

                                     By s/Jas. W. Bassett
                                          Jas. Wi Bassett
                                          Asslstant
JWS:mp:wc

APPROVED MAR 20, 1945
s/Grover Sellers
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/MiR Chairman
