                  ,
                                                                             291



            ‘OFFICE OF THE ATTORNEY GENERAL OF TEXAS
                              AUSTIN
GR~“~~     SELLERS         i
*,,~*N~v    QLMCRAL
                                     .
                                                        i.
                                                        .;:.
  gonorable Mwrell   L Buckaer, Chairman
  &me, Fish and Oyster Couuniasloa                *A+-q
  union Terminal Stat Ion
  Dallas, Texas

   Deer s!r i         ‘.




                                                on from you as
           to the method of how
           handle ~ioneg collect c
                                              on at Austin.”

                                               utsct   that    ve are con-


   the Com~I.ssiou




                The duties of the Sam and fish wardens with re-
    Bpcct to funds collected      for liccnsas   ore not set out in a
    single provision    of the statute but such provlstons     as HO do
    have appear as a part of the act providing for the particular
    license involved.     Articles   923 qa, Scctiou 3; 934 a, Section
    8; 93’1 b, Section 7; V.A.P.C.,      and Article  hOj2a, Section 2,
              *.
Doao~ble   Murrell   L. Buckner;    pa&e 2
              .


Vernon’s Annotated Civil Statutes,         These provisions       are in
substantial   agreement end require      the warden to remit all
moneys collected     to the Commission et AUstln ‘Zor deposit in
the State Treasury.       Articles   923 qe, Section 3, end 934 e
scctlon 8, V.A.P.C.,      require that the renittance       be made ‘be-
fore the 10th day of the month following           the sale of such
license.’    Article    934 b, SeCtiOn 7, V.A.P.C.,       specifies    the
time of remittance      as ‘not later than the tenth day of the
month following     their collection.R      Article   4032a, Section 2,
V.A.C.S.,   sets the remittance date at “on or before the 10th
day of the month next succeeding        that during which said li-
cense was issued.”       We think that Article 4025 V.A.C.9
 (Acts 1913, p. 297; Acts 1923, 2nd C.S.,          p. 61), insofai’as
the same would require weekly remittences           of license    fees
collected   under the fish and oyster lews along the coast, has
been repealed by the subsequently        enacted special      provisions
 cited above.    39 Tex. Jur . 139; 39 Tex. Jur. 150.          Thus we
 think the warden complies with the governing statutes on re-
mittance dates If he sends the license          Sees to the Commission
 by the tenth of the month followiw         their collection.

            Such provisions,   th.ough complied with, still    leave
the warden at e loss as to the proper method of handling the
funds during the period of time pending remittance,        which, as
to some of the fees, might be thirty or forty days.          During
such period he is the custodian of public funds and as ue
understand It, though charged riith their safe kccplng and
transmission,    he does not have available    e safe or vault for
8uch purpose.     Furthermore, the Commission is not author-
 ized by law to designate depository      banks for its funds, but
 is charged with the duty of placing than in the State Treas-
 ury.   In view of this situation    may the warden utilize    pre-
 sent day methods cormnon to all commercial transections?         Hay
 he accept checks for licenses,     deposit them for collection
 end deposit funds in cofiimercia.1 banks for safekeeping     and
 trausnisslon   to Austin?   Or, on the other hand, in this day
 Of deposit   Insurance and rapid transfer    of credits,   Is he
 relegated to the backl.loods method of cradling the State’s
 money in his boot or a money belt until remittance       day rolls
 around?
            In this connection   let us consider the liability   of
 the wardsus as public officerc     vlth respect to these funds.
 In 34 Texas Jurisprudence,    at pa&e 4’74, It IS stated that:
         ..
Roaofoblc     hrrbll    L   Buckner,. pogo 3

     I            ;’
               ‘An otflcer   who is the custodinn of public
         money doca +ot occupy the position     of a mere bailee
         for hire, vho la responsible    only for such cere of
         the money~as a prudent rne~ vould take of his ovn~
         nor is he. a ‘*debtor’ to the county vithib;.the   or-
         diaary   meaning of the term,   since   if   he vere,   the
         money vould be his property    and he could not be
         guilty of misopplylnS it as the offense      Is def incd
         in the Penal Code.     He Is bound to account for and
         peg over the money to the person entitled,       less his     ,_
         commissions, or his sureties    mat   pay it for hiu;
         and neLther he nor his sureties     are relieved    from
         liability   by the fact that the money vas stolen ulth-
         out   his fault or VAQ lost by being deposited      in a
         bank vhlch failed   without negligence   on his part,
         except in some cnaes where the bank ha.s been dosig-
         aated ea a public depository.”

This rule vaa quoted vlth npproval in the late case of &crican
Indemnity Co., et al., vs. State,    (Civ. App., San. Antonio),  104.
S. Il. (2d) 68,. the quotation being derlved from Town of Cmeron
vs. ~lcks, 65 N. Va.   484, 64 S. E. 832, 835, 17 Ann. Gas. 926.
The language is as follows :

                “By the great weight of authority,   the cust-
         odian of public money is not n boilee,     bound only
         to the exerclae o? a high degree of care, prudence
         and’dIligcnce   for its snfety,  end excusable for the
         loss thereof by fire,   robbery,  theft,  or bcnk fail-
         ure, vhen such loss is not In any sense due .to neg-
         ligence or miwonduct on hia pert, but a debtor and
         insurer to the ext%ent of the amount received,     ex--
         cuaable for no 1oYJaos cxcopt those resulting    from
         acts of God or the public enemy.” See also 93’ A.L.R.
         819.

             It therefore    appears that a varden charged by l&
 vith the cuatcdy, safekeeping       and tranaM.aslon of license    fee
 funds, is absolutely     liable  for such funds until the moneys
 are actually   in the hands of the Commiaaion at Austin in the
 absence of the intcrvcntion       of an act vf Cod or the public
 enemy. J.nd, while the use of the ordinary bonklnS channels
 is not effirmctively     authorized   by h\J,  vc thilL11 that in this
                                                                               294

     Ronorable     Hurrell   L. Buckner,   page 4



     day their use should be expected,       if not required.          Indeed,
      some cases hayo held that     It would be aegl1genc.e not to use
      such facilities.     See United States Fidelity       and. Gueraaty
      co. vs. Carter, (1933) Va., 170 S. E. 764; 90 A.&R.               191.
      Since. no such’methods are provided by law, the warden should
     .rcalIze hovever, that he adopts these methods at his own
      peril,  and does not thereby relieve      himself of the liability
      placed upon him as an Inssurer 4s to these fur&.              It follows
      that If ,a varden assumes this risk as he most likely             will,
      he will accept a check In payment for a license            at his dun
      risk -- a bank deposit will be made at his risk,             and use of
      a bank check or draft for remittance       vi11 be made et ,hla onn
      rlak.   We add a caution at this point:.that         in m&sing a de-
      posit of State funds, a warden should not make the deposit In
      his personal account, nor should he make a general deposit of
      these f unda, Rathor, to avoid the possibility            of violation
      of the penal statutes dealing with the misappropriatioh                of
      funds he should make a special     deposit,     opening a trust ac-
      count In which the State funds are deposited           sole1     Sor safe-
      keeping and tranamIasIon to Austin.         See Articles      es and 87,
      V.A.P.C.;    7 Am. Jur. 550; 7 Am. Jur, 548.       Furthermore,
      though a check is ordinarily     only a couditionzl        payment, if
       such a check is received    by a warden for a llccnae          and made
      payable to the Game, Fish and Oyster ConmissIon, we think the
      Varden has no authority     to endoree the instrument for the Com-
       mission In the absence of a specific       delegation     by the Com,;liu-
       sion of that authority.     40 Em. Jur.. 763; Waggoner Bank &
       Trust Co. vs. Gamer Co., et al.,     213 9. W. 927; 2 Pm, Jvr.
       141.

                  We slncerely hope that our views       on this question
      will   aid the Commission In the performance       of its duties.

                                                     Very truly    your*
                                                ATTORRZYGENERALOF TiXAS




      RA:db                                                        Assistant




----,,.~,
     .,-m-.-F---       -
