                                                                                                                                             555
                         OFFICE OF THE ATTORNEY GENERAL OF TEXAS
                                          AUSTIN
  GROVER SELLERS
      ATTORNEY GENERAl.




                                                                                                                                                                                                       f'·

          rIonorable H. ''Pat Edwards
          Civil Distriot Attorney
          Reoords Building, Dallas County                                                                                                                                                              ,,
          Dallas 2, Texas
          Dear Sir;                                            Opinion No. 0-6929
                                                            Re:        Clarifioation of du ies and
                                                                       responsibilities ot oertain
                                                                       offioials·      11 ~'i 'oun ty
                                                                       when oer    n shoar; s appear
                                                                       in the aooo      ot'     - Tax
                                                                       Ass    r-Colleo
                 Your reoent request to
          question reads' as ,follows:

                e'   :




                                                                                                                      , "




                                  .. a)               of Deoember 31.1944/ t,here
                                       e t ' the 1:lank aooount oarried as 'Un-
                           a      rt· ed Tax Fund Aocount NO.' 404',. a              ,
                           caljlh       ortege ·of $108.68;, whi,oh is reported        ,
        ,-.,"
                         "       Due to Banlj: from Ed oobb'", This< shortage,' '
                         , arises out Qf., the1'act that tlle'Ta:X:iAssesso~ ,
                           and Colleotor tailed-by, said amount, to col-
                         ','lect as' .
                                     '
                                         much;:
                                             . '. money 'as ,the tax 'receiptf;liasued
                                                    ':    '~            , ,       '.   ~




                                                                                             .' ..



  .                                                            .      .       .            .."..                 .           '
NO eOMMuNic~TION 1& TO BE CO':'!STRUIltD A8 A DEPARTMENTAL OPINION' UNL!>SS APPROVED BY TH~ A!1'0RNEY GENERAL ~.fI FIRlIT A •• 18TAN.T
                                                                                                                                                                                              i:"
                                                                                                                            :.-." .• -._'''" _ '___   ,~.-~~~: ...",,-"   .- • -   -:!-   -60" ..Aj   ;;\ .
                                                                                         ',::




                              page 2 .


                                                                                                                                                                                                                    I,·
                                                                                                                                                                                                                       ,.
             by him totalleQ. The County Auditor advises that                                                                                                                                                       ,'".
             as of November 7, 1945, this amount still has not
             been paid to the bank or to the county TrEiasurer·
             by the Tax Assessor and Collector.     .
                 "(b) That on March 28, 1943, a deputy of the
             Tax Assessor and Collector lost \il150.00of the    . .
             county tax money while on his way. from the bank. to .'                                                                                                                                 :\'            . I
             the Tax Assessor's Oftice. said amount having been
             obtained from the bank for .the purpose of making
             change. The Auditor advisesthatss of the date of
             November 7. 1945. neither the Tax Ass.essor nor the                                                                                                                                                     ,
             deputy who lost said money had'repaid same to the                                                                                                                                                  ,"
             County.                                                                                                                                                                                            "
                                                                                                                                                                                                               ··1
                                                                                                                                                                                                                Ii
                 "(c)   That during the yearl94-3 the Tax. Assessor                                                                                                                                            'i
             (,sed ad valorem tax money to oash. 'N.S.F.checks', .                                                                                                                                         . ;:
                                                                                                                                                                                                               I"
            I. O. U. 'forone of his deputies and .1 forged checks' .
             I
           totalling *713.85, .' the. totalot ..which· ohecks, etc •• ; ... '
           the Tax Asse·ssor. and Collector'haf:j" tor· more. than two.:
         · years neglec·ted to make good by ,paying the actual
         · cash thereon into his accountso,t .cashon hand.
         ·        ." ( d) '. That during the yea rs194-1,. 191;:2,. 1943 and .'
              1944 oel'tainshortages in the COllection of state
              license tees ··in ,the. Highway Department ocourre.d 'oy
        .... reason.ot •. the deputies failing tQtUi'l1 in. as .. much
        "casha£> 'they hSQissuedlicensereoeiptfl 'tor, and ,.
              that while' the ''l'B.x Assessor .. andOollector. has .. ' .
              settlea..hisaocounts. with thestata, he has~ith-'
            held county funds for the purpose Of balanQin€$ his                ....
         . accounts against Such :shortages,. and .has to .date             .       .'.
              tailed andp,egleoted to 'cover said alwrt$ges i u t h e , " \ ;
            . sum ot $944.87 by·theplecingofaotual,aashtor                    "          .
              same in his' cashaooounts. '. .        .    '.,'                      . ".


           "Upon the oonf:jidera tion ·ot . sa~dreport by tM Oom~'         . ; '.'"
    missioners' Court and a discussion 'of." 'the teiot.F.revealed
    thereby,,.. the hereinafter setfor~Jiquestions .\'1ereraised .
    and the Criminal Distriot>.Attbl'uey~asrequestad toad-             .
    vise the Oourtasto t4e law            in
                                           t.ha:p~emisesin_regard to" .
     sam.e, it beingthEicontention: of, tha'AIlq,1tortha.t hehacl ...... "                                                                                                                             i,
    discharged his responsibility undertM law when here ..                                                                                                                                                 >


    'ported the fa.cte to the COJJllll.issioners ',Court, and that it                                                                                                                                  il, I
    is the duty of the COJJllll.issioners" Court to order th~       .           .                                                                          "                               •                         I
    shortages,' 'I.O.U.s',· 'N.S.F •. and Forged cheoks' removed                                                                                    ',,"



I                                                                                                                                               . "',.




                                                                                                                                                                            :-;'     .

                                                                                                                             ./                                                             Ii


                                 '.                             ,                                                   ./
                                                                                                                         I
                                                                                                                             '                                                    /.'
                                                   -  .nT
                                                   . ~,."~,<-,- .. -, ...
                                                                       -,.; -  -l···
                                                                            <,~.-.,....,.-,. """,...,d." b.'~-
                                                                                               · · Y .~~.,.i.:RS11I&.AAj:.,~,.,.
                                                                                                                    ,,', _, ,............
                                                                                                                                 'I ._.           ~: ·.,:~,i..~,.. .:,.·.~,'.,. . .~.. _.• _. .'..
                                                                                                                                          . . . •,..•..·..         ":< :::',.    ~               ,t ," .
                                                                 ,·55'7
   H. Pat Edwards,    page:3

   trom the Assessor's accounts by payment of actual cash
   into the County Treasul'Y. The Oommissioners' Court on
   the other hand, takes the position that inasmuch as it
   does not appoint the Auditor, it has no power to direct
   him as to the performance of his· duties, 'and particuJ.ar-
   ly sinoe by the express provisions of the ~tatutes a .
   positive duty is enjoined upon the County Auditor. (a)
   to 'see to the strict enforoement of the law covering
   oounty finances' (Article 1651 Revised Civil Statutes),
   and (b) the County Audi.tor is expressly, authorized 'to
   cause an aooounting and to take such steps at the ex-
   pense of the County as is necessary in his judgment to
   proteot the interest of the County' (Article 165613,
   Revised Civil statutes) I the Oourt is not required to
   take any official action in regard to the situation re-
   vealed by this Auditor's Report.             .
          "TheAuditor and the Cominissioners' Court agrE;eth~t .
     Oounty Tax money has been applied to the 'N.B.F. and
     forged checks'. etc.,. and that the Tax Aase.ssor should'
" make good the shortage in the ad v<;llorern, tax aocount. ·A
     disagreement seems to revolve::,around the . issue as to
     whose responsibil1tyit is, to cause the s'ituatiOn revealed·
     in the report to be. remedied at the earliest possible date.
     inasmuch as ,all of the transactions revealed oocurrm more'
     th.anthree years' past •. and the. application of the statutes
 ..• of lirn1tat:i.ons lsin the min4s 01' .. a11 parties. .. .
          "Accordingly. the Court has propounded and requested
     answers ,as to the law in the,l?remise~.tothetollowing
 ... questionSl"
      .'.     .

             "(1) . 'Is the Tax Assessor e.ndOollector per- '
     , . sonallyresponsible to the County tqr the shortages                 I,
         ,tN.S.li'. 'checks, 'I~O.U.sl of his deputies carried
         in his cashaccount.s, .etc., same having occurred
         in 1;hehandling of county tax ntoneys?
          11(2) If such Official is personally responsible,           . i
       when should .settlement there1'tlr or payment thereof
       be made to the Oounty by the payment 'of aotual oash
       into the c;:ounty Treasurer to cover said transactions?
         "(3) Is it legal tor the County 'l'axAssessor and
      Collector· to oarry as cash items in'his accounts for
      more than thirty days 'I.O.U.s','H.S.F. checks' of
      his deputies, 'forged checks'- and, shortages charge-
      able to his deputies?
)"                     ~   ---.




     Eon" H. Pat Edwards,         page 4


               It (4) Whose duty is it to demand and ,enforce a
            'settlement and payment L~ cash to the County of
             such transactions where it appears County tax
             money has been used to cover same?                                      ,::


             "Vie have concluded that the questions l?ropounded should
          be answered as follows:
              It(l) Under the proVisions of Artiole 7252 and
            the law as set forth in 34 Texas Jurisl?rudencs
            under 'Public Officials', Page 437. paragral?h 86,
            and the opinion of the SUl?reme Court of Texas in
            the case of Dunlal? vs Pool, 176 S. W. (2) page 310;
            the Tax Assessor is personally liable for the
            shortages, losses, forged and N.S.F. oheoks arising
            out of transactions handled, by 'his deputies in the
            aruainistration of public funds and he should forth-
            with pay into the County Treasurer in cash the total
            of said items.
               "(2) Under'the provisions of Article 7261 Revised
            Civil Statutes, the Tax Oolleotor is required at the
            end of each month to pay over to the County Treasurer
            'all taxesoollected for the county during said month',
            and he should in all events finally adjust and settle
           'his aocount with. the commissioners' Court for the'
            oountytaxes collected,tonor before the, 1st day
            of May of each year'. Inasmuch as it clearly appears
            from this rel?ort that all of the shortages 'N.S.F.
            and forged ohecks', 'Deputy's I.O.U.s' and other
            items occurred prior to and during the 'year 1944.                             .'j
            and May 1st, 1945 has long since passed, it is our                             .::
            opinion that the Tax Assessor and Colleotor should;
            il!llllediately olear suoh items from his accounts by
            placing therein actual cash equal in amount to the
            total of suoh items.
               ltD) The Tax ASsessor and Oollector cannot
             legally carry as oash items for the pUrpose of               i '
             balancing 'casb,accounts,', 'I.O.U.st, 'Shortages
            'charged· to his deputies', 'N.S.F. and forged checks'
           , longer than the end of'the oalendar month in which
             said transaotions arose; and in all events by May 1st
             of the year following the occurrenoe of such trans-            '
             actions the .TaXAssessor and Collector should :t'inally'settle
             his accounts by making good such transaotions by the
             payment ot aotual cash into the County Treasury.

                                                                  .'   ;".
                                                                                :;
                                                                                 I    '
                                                           ''''''i'   7:%   -- 7',,'




Hon. H. Pat Edwards,    page 5


            "(4) Under the express provisions of Artiole·
          1651, whioh enjoins upon the Oounty Auditor the
          positive duty to 'see to the strict enforoement
          of the law governing oounty finanoes', and Ar-
          tiole 1665a. Vernon's Annotated Civil .statutes,
          which expressly oonfers authority upon .the Oounty
          Auditor to 'take· such steps at tUE;lexpense or the
          County as are necessary in his ilUdglllentto.protect
          the interest of the County * *"', the 'primary,                              <
    " . duty to enforce a cash settlement of' transactions
     " shovinby this report to be due the County rests
       . upon the COWl'!;y Auditor. In the event the County"
          Auditor neglects or refrains toeniEorcesuch settle .. ,
          ment. i,t is, our opinion that under' the prOVisions
          of Al:ticles 7262 and 7292, Revised Civil statutes,
          the Commissioners' Oourt is both duty-bound and
      .'. authorized. t,o :direct the Tax.Assessor and Collector
          to pay-the amount shown by this report to . be due
         'the Oounty, and:uponf'ailure todo,so,t,o cause', a
          suit to be instituted against theoffioial and
       , his bondsmen by the' Criminal Dis'trict Attorney who, .
          under the provisions of Article .335 of ,the ,Revised
          Civil statutes,
                      .
                            is duty 'bound
                                       0
                                           to bring
                                                 0_ , '
                                                        such suit.' '
          . "We' are, of' th~ opinion that the law' srequ1rement as ",
 . ,to an aocounting 'and ,settlement of the aooountS ot the Tax
 ,. Assessorand,Colleotorcan,onlybemet by the payment of
     actual oal:!h. that iI:!, 'legal, tender' ,into. the County .
     Treasury, and ,tll.a.t although from an accounting standpoint,'
   ',an 'I.O.U.' ,and 'N.S.F. ,cheok'oharged against a ,deputy,,·
     may be used by the Assessor for the purpose of balancing ,.;
, , the accountl:!,. only actual cash money can be used to settle··,
     an account.' That if the law's requirement that ,all tax • ,
   . money collected by the Tax AsseSBor and. Collector be de-
   'pol:!i"!;ed into theC,ounty Depository al:! collected~ and paid
     over to the County Treasurer at, the end of each ,oalendar
     month, and that on the firatday of May'of ea,oh year a
     final adjustment and .settlement of the acoount,s,of the Tax , •
     .Assessor and. C()lleotor ,is made. no such 'I.O.U;S', 'shortages!,
      'N,.a.F. and forged ohecks' and similar items 'oouldappelilr in
     an ,official ~s,report.                             ' . .
      "The .'I'ax As'sessor, and Collector. as we understand his
  argumentl:!to'the CoIlllllissionerl:!' Court, contenda,that inasmuoh                                   OJ
  as he is under.-bond; . that he does not have to adju,stand                                             ,
  settle his accounts finally by the payment of actual oash
  into the Treasury until he goel:! out of offioe. We therefore,
  respectfully ask whether or not you concur with us in our
  answers to the questions propounded and our, view of the law
  in regard to the final settlement, of aocounts 01', the Tax·
  Assessor and Colleotor with the Oounty as herein se'ttorth.,                                  ,.   ~

                                                                                           oJ
                                                               L     560
Hon. H. Pat Edwards,   page 6

         "In cOnsideration of the questions it is to be
     borne in mind that: (a) Dallas County has a popula-
     tion in excess of 190,000 inhabitants; (b) Its Tax
     Assessor and Collector is paid on an a=ual salary
     basis; (c) It op'erates and so operated during the
     years 1943. and 1944 under the County Deppsitory Act,
     and has a duly selected, qualified and acting County
     Depository; and (d) The Distriot Judges of Dallas
     County urider tJ1e provisions of' the statutes, have
     appOinted and:De.llas County now has and had during
    .1943 and 1944,. a qualified and aoting County Auditor.
         "A oOlJY of the Auditor's ,Report referred to herein
    is enclosed fOr your turtherinformation, and your at-
    tention is directed, to Pages 6, Sand9 wherein the
    items referred to above are set fOrth. In regard to
    the 'torged checks·, I peg to advise that these checks
    were not accepted in payment of taxes, credit for whioh                  I'
    could theref'ore be reversed. but were aoquired by the                   I'
                                                                      "    . !.:
    Official by his' exchanging publio tax moneys tor said
    void instruments."
           ,      .
    Article 7247. Vernont.s .Annotated Civil Statutes, provides' .
that eaoh Assessor /lnd Colleotorof Taxes shall give bond, pay..
able to the Governor and. his successors in ottice, in a sum
which shall be equal to ten per cent of the whole amount of
the state taxes of the county, as shown by the last preoeding
tax assessment, but not to exceed $50,000.OO,condItioned for
the faithful Performanoe of the duties of his office as
Assessor and Collector of Taxes for and during the fullterm
for wllich he was eleotedol' appOinted.
    Al't. 7249 provides that the Assessor and Collector of
Taxes .shall give a similar bond to that required of him by the
state with like conditions to the County Judge of his county
and his. suocessors in office.; in a sum of .not less than ten
per cent of the whole amount ot the county taxes. but not to'
exceed $50;000.~                ,
    Art •. 7254 provides as i'ollowst
          "The. tax oolleotor shall be the receiver and 001-
    lector of ell taxes assessed upon the tax list in his
    county, whether. assessed for the state or county,
    school, poor house or other purposes; and he shall pro-
    ceed to oolleot the same aooording to law, and place
    the same when colleoted to the proper fund, and pay the
    sallle over to the proper authorities. as hereinafter
    provided."                                           ",
                                                         :",
                                                                          ..~. 5G:i


         IT. Pa t Edwards.     page   7
                       V
              Art. 7252 provides in part as follows:
                    "Each Asse'ssor and Collector of Ta.xes may ap-
               point one or more deputies to assist him in the
               assessment and collection of taxes, and may reCJ.uire
                such bond from the person so appointed, as he deems
               necessary for his indemnity; and the Assessor and
               Colleotor of Taxes shall in all cases be liable and
               accountable for the prooeedings alld misconduot in
               offioe of his deputies; and the deputies appointed
               in acoordance with the provisions of this Axticle
               shall do and perform all the.G.uties imposed and
               reCJ.uired bylaw of Assessors and Collectors of
             · Taxes; and all aots of such de'puties done in con-
               formi ty with law shall be as binding and valid as
               if done by the Assessor and Golleotorof Taxes in
               'person. • • .tt
       ·:'<.:dill Cor •.Jur. ,Sec.• 1315. p. 1023. lays down .the follow ..
     ing rulesl
         .          "In regard to money oolleoted by him and. in        .
             . his hands, a tax oolleotor is, in a. nUlIlber Of juris;';:;!·,.               -'i
               diotions, regarded, not as a bailee, but as an          ',i'''                "
                                                                                                 ,
               insurer, and therefore responsible for the taxes        ...
               collected. although he is robbed of. the money or
               it. is stolentrom him, .. o • tt . . . ,
                                                                                            .,J
              34 Tex. Jur. •• ·Sec. 86, 'pp. 474-475. lsin part as follows,                   I
                                                                                                 !
             '.    "Jill officer who is the oustodian of publio
                money does not occupy the pOSition of a mere bailee
                for hire, who is responsible only for such care of               . ,
                the money as a l?rudent man would take of his own;
            : nor is he a t debtor' to. the county within the ordi-
                nary meaning of the term, since. if he were, the
               money would be his property and he could not be
             · guilty. ot'm1saPl?lying it as the. otfense' is de1'ined
                in the Penal Code. He 'is bound to a.ccountfor and
                pay over the money to .the person ent1tled,::less his
            · 'commissions. or his sureties must pay it for him; .
-:     . . ' .and neither he nor his sureties .are':relieV:ea:troiD.::,lia-
             .. bil1ty by thefaot that the money was' stolen without,
                his fault or was 'lost by being deposited in a bank:
               which failed without negligence on his part, except
          '.. in some cases'where the bank has beendesig..1.ated as
                a public depoei tory·.... ."


                                                                                       '.' ~ !
      EtPat Edwards,     page 8

             The case of Boggs vs. The'state, 46 Tex. Rep, 10, in-
           ved a claim against Anderson Boggs, and a number of other
                as his sureties.' en a tax cellector's bend... The
       fendants filed a special answer alleging tb.at Beggs, as
            Collector, having cellected the taxes; ana. being about to.
.start to. Austin with the money', had $1,300.00 61' it stolen
             him without. his fault. (stating the circumstances ef its
          s) • The plaintiff tiled exceptions to. t.his answer. whicb.
             sustained, and this was assigned as errer. In sustaining
:",,,,,,,,.u action 0.1' the trial ceurt, the Ceurt .efAppeals b.eld as



        "It is centended by the ceunselfor the ap;" . '.
     pellants that Boggs, being an effic.er, oQcupied
     toward. the state the pesition of a bailee.fer
     hire, in the business of cellecting, preserving,
     and accounting fer the. taxes 0.1' Rusk County, and
     that as he tookoareof the money in his hands,
     as a prudent man would erdinarilyhavedone, in'                          '.   \.


     reference to his ewn property, neither he. nO.r his
     sureties were responsible for its, loss.".: .
                                                                                   ,"   '.


        '. "We do not undE1rstand such to. betb,e 1~g~1l>OSi:"
      tien and respensibility 0.1' the public efficer whose
      duty it is tecelleot andaocount tel'. the'money 01' ,
      the state as a tax cellecter, naris it inaooerdanoe
      wi th the terms ot his bond, signed by. him and l:I.ia
     ,sureties, aspresQribed by'l.aw.;.
         •   '   ,-      •          •   1
                                             , ' ; .....     .. ,  ',:   •
                                                                                                       ','    .. '-
     .·"He~s. bound to acceuntf{)X' sndpay ever the
     ameuntot money whicilhe celleQts.les$ :his.oomiliis;..
     siens, 0.1' his sureties mUstdo,it'for him. n
                                                                                                             t'
                                                                                                                  ..
                                                                                                                  "




     See also. .thetel1owing additienalauthpritie1>~
                                                         ,     ,'.
       Wilson v._ Wiohita COUll ty, 4 S ~_ W~ 67;
       Cae et a1 vs.Foree. County J"Udge,·50 $. W. 616, writ retused.
    '. Peele at a1. vs.' Burnet· ceunty.· 76 3i W•. 42?'bysup •. 'at;.
       Lanham, GovernQr vs.Diesst al,98S •. ,W.897L, , . ,            .
       American. I1),demnity ae~:et alv •.. state; 104 ,f?~ Vv.(2dJ 68,
       writ dismissed~
       United stat.esv;. J;>resoett, ilL. Zd«_ 734.
                                                        .;   ,':     .
                                                                                             ; .....
                                              '"   ..
                         ";   ,
                          ·.--                                       563

, Hon. H. Fa t Edwards,              page 9

        We think it is clear under the above rules of law that the
  Tax Assessor and Colleotor is personally liable to the county for
,the shortages, "N.S.F." checks and "I.O,U.s" of his deputies and
'''forged ohecks"carried in his oash accounts. etc., which occurred    k
  in the handlin/fof county tax funds, as set forth in your request;
  therefore, your question No.1 should be, and it is, answered in
  the affirma ti ve.        "                 , .
      Chapter 2, Title 47. which'is Articles 2544-2558a. provides
for oounty depositories, ,and Article 2549 thereof, after setting
forth provisions relative to approval 01' a depository bond. con-
tains the following provision:
           ". • .It shall also be, the duty of the tax col..
       lector of such county to deposit all taxes collected
       byh1m, or under his authority, for the state and
       such cOunty and its various districts and other'
       munic1paJ, ~ubdivisions, in such depository or deposi-
       tories,'assoon as collected, pending the preparation
       of his report of such collection and settlement thereon.
       ,
      .'   ..
            -'   ."   ~
                      -   --------
                                 .
                                                                 '



       Art. 7249a is as follows!
            "On Monday of each week each County Tax Collector
       Shall pay over to the county Treasurer ,ninety per cent
       (90%) of all taxes collected for the County during the
       pr,eceding week, and pay over to the state Treasurer
       ninety per cent (90%) of all taxes collected for the
       state during the preceding week ..
             "The Oommissioners' Court ofauy County, or the '
       Comptroller of Public Accounts. may at any time in
       their discretion call upon the Tax collector for a
       sworn statement as to the amount of his collections
       made during the current month, and tor til report as to
       the amount of taxes in the Oounty Depository belong-
       ing to the Oounty or state, and direot that ninety
       per cent (90~~) of those tunds be transferred to the
       County or state Treasury. The COminis,sioners' Court
       or the Comptroller mGlY at any time require a sworn
       report trom the Depository as to the amount ot funds
       in their hands under the control of the Tax Colleotor.
       J;'ailure or refusal of a Tax Collector' to make the
       remi ttances as provided in this Aot within three (3)
       days from the date due, or to render the statements
       required herein, within, three (3) days after reoeiving
       notice to do so, shall oonstitute a misdemeanor and
       shall be punished by a fine not to exceed ~vo Hundred
      -<.Dollars' ~?200. 00') ."
                                                                      L         564

         .' E. Pat Edwards,   page 10
                    ~.

          Art •. 7250 is as tollows:
               ''Except as to compensation due such tax col-
          lector as shown by his approved reports, tax money
          depOSited in oounty depositories shall be paid by
          such depositories only to tressur~rs entitled to
          receive the same, on checks d:!:'awn by suoh tax 001-.
          lector inys:or of such tl·easurer •.~t
          Ax·c" 7260 provH!.es in part   ~s   follows:
                "1. At the' end of' each month the Tax Col-
          lector shall, on forms to be furnished by the
          Comptroller,make an itemized report under oath to
          the Gomptroller,showing each and every item of ad
          valorem, poll and oocupation taxes oollected by him
          durj,ng said m.onth" aooom.panied by a summarized state-
          ment showing full disposition of' all state taxes
          collected, provided that said itemized reports f'or
          the mqnths of Deoember and January of eaoh year·may
          not be made for twenty-five (25) days a:r-ter the end
          ot such months it same cannot bellompletad by the end
          ot suoh respective months.
'.'"."
                "2. He shall present suoh report, together with .
          the tax reoeipt stubs. to the' County Olerk, who shall          ",f
          within two (2)d.ays compare said report with said       .
          stubs ,and' it same . agree in every partioular as· re-
          gards nam:es, dates and amounts, he shall certify to
          its correctness, • • • .. provided that in coUltties
          having a County Auditor the work mentioned in this
          paragraph shall be done.by the County Auditor rather
          than the County Olerk.                          . .
               ":3 •. The'1!ax Colleotor shall then ;!.mmediately
          forward his reports so oertified to the Oomptroller,
          and shall ·pay-over to the state Treasurer all moneys
          oolleoted by him tor the State during said month,
          exoeptin~suoh amounts as ~e is allowed by law. to pay
          in his county, reserving only his commissions on the .                v
          total amountoolleoted •••.• "
                                                                                      ,-   i




                                                         .,.'
H. Pat Edwilrds.       page   11

     "4. The Tax Collector shl"\11 pay over to the state
 Treasurer all balances in his hands belonging to the
 State, and finally adjust and settle his account with
 the Comptroller on 01' before the first day of 11ay of
 each year •. and to enable him to do so, tl;.le COlllillis-
 .sioners Court shall convene on or before the third
 Monday in April for the }?u:rpose of examining and
 appl'OVin~.t inal .se ttlemen t papers. II

 Art. 7261 provides in part as follows:
 . "I, The Tax .Qollector shall I'd the end of each
 month make like.teports to theColllilliss"ioners' Cou:rt
 01' all the collel:Jtions made tor the COUll ty. 'conforming
 as faI' as applicable and in like manner to the require-
 ments as to the oOllection and report of taxes .col-
 lected for the State ••.~
    tt*   **
    "3. The Tax Collector shall im.'llediately pay over
 to the County Treasurer all taxes collected for the
 county during said month, atterreserv'inghis cOlllillis-
 sions tor collecting the same, and take receipts there'"
 to~. and tile with the County Clerk.

       "4. At tb.e next regular meeting of the Commissioners"<
 . Court, the Tax Oollector shall' apllear before said. Court . .
   alidmake a sUlIliJlSrized statement. shovling the disposition
   of all moneys. both of the state and county t collected        .
  by him during the previous three (3) months. said state-
  ment must.show that all taxes due the state have been
  promptly remitted to the state Treasury at 'the end ot .
. each month, and all taxes due the countS' have been paid .'
  over promptly to the County Treasurer and. shall file
  proper,Vouchers and receipts showing same.
     "5. The COlllillissioners l Court shall examine such
 statement and vouchers; together with an itemized. report
 and tax 'receipt stubs filed each month. and shall compare
 the same with the tax rolls and tax receipt.stub$. It· .             I;~1
                                                                        I'


 found oorrect in every particular. and. it the Tax co1-              ,'"


 leotor has.properly accounted for all taxes collected;
 as provided above; the Commissioners t Cour~ shall enter
 an order approving said report. and the oruer approving
 same shall be recorded/in the minutes.                 .




                   /
                                                                   566


• H. Pat Edwards,    page 12


      "6. The 'l'ax Collector shall finally adjust and
  se ttle his a ocount; with the COL'llllissione·rs f Court for
  the oounty taxes oolleoted, at the same .time and in
  the same manner as is provided.in the foregoing Ar-
  ticle in his settlement with the State~"
  Art. 7262 provides as follows:
         "If any tax collector shall have failed at the end
  of each month, or within three days thereof, to promptly
  remit to the state Treasurer the amount due by him to
  the state, or pay over to the county treasurer the amount
  due by him to the county, the commissioners court, at the
  next regular meet~ng. shall asoertain the facts; and if
  the taxcolleotor fails or refuses to payor remit the
  sal::!.e and file proper vouchers therefor, as provided in
  the foregoing article, the commissioners court shall not
  approve his reports and aocounts,b4t shall ascertain
  the amounts due by him, both to the State and oounty,
  and enter an order requiring him to pay the same to
  the proper treasurers, as is provided in Artioles
  7294 and 7295. and notify suoh colleotor. as is pro-
  vided for in Article 7296 under penalty for failure to
  do so. Whenever the tax oolleotor shall fail or refuse
  to remit to the .State·Treasurer the amounts due the
  State,when requested, thEl Oomptroller s.hall notify him. II
  Art~   72.95 is as follows:
     "All tax·collectors and other officers or .appointees
  authorized to receive public moneys shall aocount for
  all moneys in ,their handS belonging to their respective
  counties, cities Or towns, aud pay the same over to the
  respecti va county tre!:)surers or oi ty treasurers whene.;v~r
  and as often as they may . be directed to do ·so by the,
  respeotive county judges, or county commissioners oOUrts
  or mayor 61' board of aldermen; provided that tax 001-
  lectors shall have ten days from the date of such di ..
  rection within which to' oomply with the same."
            H. Pat .::.iiwards,   page 13

               Under the above statutes, the Tax AsseSSOl' and Collector
         has the following duties to perform: To deposit all taxes
          collected by him, or under his authority, for the county, in
          the County Depository, as soon as collected, pending the
         preparation of his reports of such collections and settlement
          thereon; on L;onday of each week to pay over to" the County
         Treasurer ninety per cent (907~) of all taxes collected for the
          county durine the preceding week; at the end of each month to
        'make an itemized report under oath to' the Commissioners' Court,
         showing each and.every item of ad valorem, poll and occupation
          taxes collected by him during said montll for the County, ac-
         companied by a sWll!llarized statement showing full disposition
         of all County taxes collected, provided that said itemized
         reports for the months of December and January of each year
         may not be made for twenty-five (25) days after the end of
         such months if same cannot be completed by the end of such
         respective months; immediately after making said report, to
         pay over· to the County Tl'easurerthe balance of all taxes
     .' collected for the county during said month, after reserving
     '. his cOillUlissions for collecting the same; to al)pear at the next
         regular meeting of the Commissioners' Court and make a summa-
       .rized statement, showing the disposition of all money of .the
       . county collected by him during the previous three months, and
         that illl taxes due the county have been paid over prom:ptly to
         the COLmty treasurer; and finally adjust. and settle his account
        wi th' the COmniissionars'Court for "the COLmty ta.xes colleoted on
        or before the first day. of May ot each year.
           If the 'rax Assessor and Cpllecitor tails "at the end of each
      month, or within three days thereof, except for the taxes col-
      lected in the months of December and January, to pay over to the
      County Treasurer the amount due by him to. the county, the com-
      missioners'court, at its next regular meeting. Shall ascertain
      the facts; and ifh6 fails or refuses to pay same, as provided
      for in Art. 7261:. the cOillUlissioners t court shall not approve
      his reports and .accoun"t;s, but shall ascertain the amount due by
      him to the county and enter an order requiring him to pay same
      to the treasurer, and notify him thereof, and said Tax Assessor
      and Collector shall have ten days from the dat.e of. such direo-
      tion in which to comply therewith.                  .
 !         It is our opinion that your question No. 3 should be
J,    answered in the negative as it is clear that,under the aU-
      thorities and rules of law hereinabove referred to, the Tax
      Assessor and Collector should make monthly reports of taxes

                                                                              '-',"
  _ - - - - - - - " - - - - - . .L _____ ~ __.___~~




                                                                , -   568


  Hon. H. Pat Edw!lrds,              page 14


 . collected by him, as well as make payments thereof to the
     proper authorities. In no event should such reports or pay-
    ments be delayed by reason of any of said publio funds having
     been used in any way by the deputies of the Tax Assessor and
   .collector, as the law does not authorize the use of any of
   . said funds by the Tax Aflsessor and Collector, or any of his
.--deputies, None of said funds belong to the Tax Assessor and
     Colleotor audall of same should be paid to the -pr'oper au-
     thorities as set forth in the various statutes governing the
 .• handling thereof, and no part of said funds should be used to·
     take care of "I. O. U.s", "1>J. S. F." checks, or "forged ohecks".
 --or shortage,~any kind.
       Art. 1710 is as tollows:
           "The county-treasurer shall keep a true account
       of the receipts and expenditures of all moneys whioh
       shall came into his hands by virtue of his Office,
       and of the debts due to and from his oounty; and"
       direct prosecutions aocording to law for the recovery
       of all debts that may be due his county, and super-
       i~tend tr~lection thereof."

       Art._ 1714 is as fOllows;                      -
            "He (the county treasurer) shall examine the
     . accounts, dockets and reoords of the olerks, sherit;f
       justices of the peace, constables and taxcolleotor -
       of his county •• for the purpose of ascertaining whether
       any moneys of right belonging to his county are in
     . their hands which have not been accounted for and paid
       over according to law, and -shall report the same to-    .
       the-commissioners' court at their next term, to the
       end-that suit may be instituted for thereco:very
       thereof." (parenthetical matter ours)
       In the- case of Simmons vs. Ratliff lOt al, 182 s. W./(2d)
 8-27. writ refused, the court had under consideration an action _
 instituted by ap~el1ant in trespass to try title to land fOrmsr-
"ly belonging to~ains County and in which the contention was
made that the county treasurer "of Rains County. and not the
 Commissioners'Court, was authorized to declare a default
 under a deed of trust,·- this contention being based upon Ar-
 ticle 1710 above setout. In overruling said contention the
 court held· as follo'lvaf
                                                                      569


  Eon. ii. Pat Ec.wqrc.s,   page-l.5

               "under the quoted statute, the county treasurer
         c.oes have authority over certl;tin funds of.the county
         and authority to direct the prosecution of suits for
         tile collection thereof, and such authority has been
         upheld by the courts. Trustees of Lytle School Dis.,
         trict v. nads~ County Judge, 24 Tex. Civ~ App. 433,
         59 B. w. 830. The authority given to the_county
         treasurer by the statute is not exclusive, however,
         and it has always been the law in this State that the
         tribunal which we now designate as the commissioners'
         court is the executive head of the county and vested
         with authority to determine when suits or other ac.,   .0_


         tions Sl10uld be instituted to recover furids belong-
       . ing to the county~ .or any othel' suit involving the. !
         rights o~property of the county, Looscan v~ county
       . of Harris. 58 Tex. 511; Ehlinger, county Judge, v.
         Clark. 117 Tex. 547. S 3 .. '1{. 2d 666;nelta.County
         v. Blaclcburn,lOO Tex,. 51, 93 s.w. 419. Without
         attempting to speoi.fy the'nature of any.claims or
         suits Over which the> county treasurer1llay· haye e;-::-.
         clueive jurisc.iction, it· is sufficient to· say that,-
      . unquestionably;, the corJJllissioners' court has at least
         oonourrent jurisdiction OVer such matters as those
      . il1volvedhere and its action in de.blaring the indebted~
        ness due andlnstructing its trustee to foreclose the
        deeder trust lien .involved in .thi.s case was fully
        authorized by the law,"

         In the case of Hoffman et a1 vs. Deviset al, 100 s. W.
  (2d) 94, theColllfllission of Appeals was considering a si tuation
  whel'a taxpaying citizens had brought suit against officers and
  eX-Officers of the county and their bondsmen to recoVer for the
  alleged unlawful expenditure by such officers of county funds,
  and the court announced the following rule as to who is au- .
. thorized tohring suit for a (jounty under such -circumstanoes:
            "Ordinarily, the cOllllllissioners' court alone
        determines whether litigation shall be instituted
        in behalf of the county, but iJi tIlis· instance the·
        majority. oftllatcourt are the ones charged .with ..
        dereliotionof duty, and it is therefore in no
      . position to act for the county. In that situa-.
        tion, undertha foregoinB statutes, the county
        treasurer, to whom the bonds are payable, has
_---,L. "'- . .   L




    H. l'a t Edwards;    page 16

    the statutory authority to protect the county's
    rights and direct the institution of suits in
    .nis .name for .the use of the county upon these
    bonds. The ouestionthel1 is: Where the au-
    thoritr to institute litigation in behalf of a
    county is vested by statute in a particular body
    or officer; maya priVate citizen determine whether
    such litigation shall be inst1tu·ted and himself
    institute and pro,secute it?
            "In the case of ]"ooscan v. County of Harris.
      58 Tex. 511. there lI;I'lS presented for decision the
      question of· the right of a district attorney. when
      the colllilissioners t court refuses to act, to main-              ,.
      tain a suit in the name of the county against
      certain officials tt) recover money illegally paid
      out. This court, after determining that there was
     no statute authorizing the district attorney to
      institute the suit, announced the rule that, since
      the right to do so was vested in the cOlllll1issioners i
      court, thet right must be held. to be exolusive. We
      quote from that opinion; I ThG cOlllll1issioners l .cour:!>
     undoubtedly has the. right to cause suits to be in-
     stituted in Ute name of and for the benefit of the
     county, and except.Where a concurrent right to do
     the samathing; ol'where an exclusive l'ight in a
     specified case or cases is conferred upon some.
     other. tribunel or some other officer of the·.
   ·government ,the . commissioners f· court must oe
     deemed to be the Quasi executive head of the
     county, vested with' exclusi'(6 power to determine
     when a sui taMl! be instituted in the :name of and
   .'1'.)1' the benefit .ofth6 county. t

        "As above polntedout,· both the co=isaioners t
     court and the county treasurer are vested by statute
    with the right, to institute this litigation. Since
   . the former is .inno ,Position to act, therignt of
     the latter to dosoia exclusive, unless there is
     conferred upon the county or district attorney by
    8.rticle 339 the concurring right - a question which.           I.

    we need notdetel"lliine."
                                              -.---------~---.~------



                                                                   ..    571


 lion.    ci.   Pa t Edwards.   page 17

           It is our opinion, therefore, tl':;a~ i!{i:thls instance,
  since funds belonging to the county ars":.fnv'ol'lred. the com-
  missioners' Court- has the right and duty'to determine
  v,Ilethe:r or not it will ha vesui t fil,ed:"in ',behalf of the
  COQ!lty. But this right is not exclu,'sive' in'the Commissioners',
  Court, for tlle reason that, under the above cited authorities,
  the COUEty treasurer also has authoi'ity to direct prosecution.
  according to law for the recovery of said funds as debts due
  his C01l.c'1ty. There are also statutes which make it the duty
  0:1:' .the county or district attorney to see that suoh claiJl).1;l
. are .paid.~.                                                     i.-


         Article,.339 provides. as follows;
               "When it shaJ,.l cometo.the knowledge of any
           district or county at"torneythat any officer in
           his district or oounty entrusted with the co11ec-
           tionor safe l~eeping of any public funds is in <=lny
          manner whatsoever neglecting or abusing the trust
         . confided in him, or in anywa.y failing to dischin.'ge
           his duties' under the law, he shaLl. institute suoh
           proceedings as are necessary to oompel the perform-
           ance of suoh duties by such officor"and to preserve
          and protect the publio interests."
       Wo had occasion to oonstrue t.ti.isstatut~reoentlY in our
  OpiniJ;J.No. 0-6376, a. copy of which is enclosed herewith,
 wherei.t;l wewerEl passing upon whether or not itwas.the duty
. of a County Attorney to bring a sui t against an' ex-tax c o l - . ;
 lector and the sureties on his bond to reoover fees colleoted
 by him under. the Automobile Certificateo:t'T1tleAct., After
 rarerring to various, authorities. we l1eld, as follows;
             "We thinkitis olear, th~reiore.th~t it is the
         official duty of the county attorney . to bring a civil
         suit against· the ,Tax Collector ;r:eferred to and the
         surety on his bond to re co.versald money •. We do not
         believe that the faot that said Tax Collector has
         gone out of,offioe makes any difference as to the duty
         of the county attorney in this' respeot, aasaid. Tax
         Collector was an officer at the time that the obliga-
         tion arose and S.Sllle are not cancelled or discharged
         by his gOing out of office.·




                                                                               ,r
                                                                      t,~.   572


 .Hon.   :i.   Pat lhdwards,       page 18

                HGI'dir:arily the Co.tr.5!lssiDners9' Court Blone deter-
          nines wiether litigation shall be instituted in favor
          of the covllty, and. in some instances tlle county treasurer
          has the statutory au:r:cori ty to protect the county's rights
          .'\Ed dir'ect. t.he i::l.stituUon of suit in· his name for the
          use of the county. It might be :well, therefore, to have
          tt~(~ :lpproval of         these officials in this instance, though
          it ia our opinion that the county attorney has the con-
          curring rieht, as well as that i"l; is his duty to bring
          tlle action. lloff.man et e1 v. Davis, 70 s.w. (2d) 637,
          1 "0·'
             v' ~. ,.   (?"(.1.) 9'J+. n
                    li . . . . .




             Your attention is also di!'ected. to the case of McAskill,
  District Attorney, vs. TO'r'ell, Distl'ict JudGe. et aI, 259
  SOlI ·'~1. 914, b.Y· the Saprelrre Court, 'Wllich involved the right of
  the Distr.ict Attornoy" to Pl"08cCLlte and. control· a su.it in-
  sti tuted by tlls COUD. ty of Ile:uu'. by or-di>l' of.' its· Gomnil.lsioners'
  Court. ElgQinst the; Oounty AttorUey of .5e~ta;::, County to recover
  certain 0'l:.10 01' m:mey alleged to belong to :3exo1' County. re-
  ceived by said Cou.nty Attorney a.nd not r·epo::';.;ed or accounted
  for by ~il'l. Un de l' u contract with the COlllillissioners' court,
  ti1e County was represented by other attorrH.lya. It aIJpeared
  f'l'om the statc,:1ent offects that in like r,ll:tmWr suit !:lad oeen
brought egainst the District Clerk, the County 01e1'1c, the· ',-: . .
 Sheriff and the Oonstable to l'ecover exoess 1'«08. not accounted
 for to tb.e county.. lrte' trial 'court llelo_ t}1,:ftt· SUCll other offi ..
  cials came witl1in tt.B tl:)rlts 01' Artl'cllq 366 ~;QOW .tl.rt. 3"39)", "but
 that the County Attorliey WI.).S not included thOirein, as he was
'not "elJcrusted with the coll<;,ction or safekeeping of any pub-
 lic fun.d s." 'J!b.e 8Up:::-cl:16. Court llelcl that this :::uliJlG was
 erroneolls, and that the statute vests the District ,Attorney
 with the 2'igl1t to i7l:'osecute and contl'ol such suit, and that
 the duti0S imposed upon h::'lIl by the statute could. Jlot be
 See also, Ser,g16r et 81 vs. AdaIfls et al, 2)8 5.         ,f.
 proper::";}' e:z:ercissd without authorJ.ty to control such suit.
 S. W. 413, wll.el'''in the Oourt of: Civil Appeals (238 S. w. 708)
                                                                   707, 250
 after s.,tting out what is now Article 339, laid down .the fol-
 lowing rule:
              "W6 think the purpose ot this·statute was to
         eX,ll'esslv preseril.)!:) the duties of' the district or
         cOUntyattcI'ney in the circumstances therein 1'e-
         oit(;d., <;lld that the Legislature did. not intend
         tilereby to limit the commissioners' court, in their
         general Llanagement of the county's busiIless affairs.
      _----.'-.          I.
                                                                 - /.,4,   Yl




                                                        .   '.


      :Hon.   n.   lOot bdwards,' page 19 .

               to the u-cilization of ·the services of the one or
               the other of those officers. The duties of the two
               sets of officers are in no manner made·correlative,
               and ;i. t is di1'fic\)~t to see in VJl.1at way this positive
               requirement upon the district or county'"attorney as
               to his independent duty could have any reference to
              members of the commissioners' court •. It seems to us
               that the matter of the duty thus laid u.;?on the at-
               torney and that of the general authority of the
               commissioners' court are quite apart. Since the
              quoted statute not only i:a:posed the Quty. but also
              ccnferred the corresponding privilege upon'the .
              officer named of instituting suits of the character
              specified in behalf of the county,it may well be .
              that the commissioners' court would lack the power
              to displace him from his rightful authority in that
              regard, but j as our statement of the facts has shown,
              nothing of that sort was contemplated or 'attempted .
              in this case •. 'rhe pleadings and the affidavits
              in evidence before the tri,,-l .b.ourthereshowea. that
              the purpose of these. contracts was merely to have
              the outside attorneys assist the county attorney
              in the sultscontJ:acted for,"               '. .   '.
           Art. 52";24 of our Code of Criminal pr6cedurecreated the
      office of ,"CriJuinal Districtl.ttorneyof Dallaseounty" and
      provided t11a t such official' should have .,in addi,tlon. to others.
      the fOllowlnepowerst                       .. ... .
                 "The'criruinal District Attorney or Dallas County
            shall h<lN and exercise inaCidition to. the· specific
          . powers given and" the duties 'imposed upon him by this
            Act; all suchpowers,'dutes (duties) and privileges
            wit):lin said Criminal Dist:rict of Dalla:a County as are
            by law now conferred, or whicb. may hereafter be 0011-
            farred upon districtl:i.ti& county attorneys in the
'.'         various oounties and. judicisl distrlcts of this'
            state."                       .
           Therefore. the rules of law hereinabove. set out· as being
!
      applicable to a county Or C,istrict attorney are also applicable
      to the Criminal District Attorney of Dallas County.'
           .Art. l656a,V. fl..C. 's., impoS6scertain duties upon county
      auditors in all counties having a population of one hundred and
      ninety thousand or more accordiw.g to tilE! last preoeding Federal
   Hon. H. Pat Edw31'ds,   page 20


   census, and. clO.thes suoh offi oers with certain enumerated powers
   pertaininG to the accounts of all oounty offioers, inoluding
   District Clerks and District Attorneys, and all preoinct officers.
   Saidartiole contains the following provisions:
             ..* >i< *At the close of any fiscal year., or ac-
         counting peribdn.ow or hereafter fixed. by law, the
         County Auditor s11all audit, adjust, and .settle the
         accounts of.such offioer. In the event the. County
         Auditor sh81+ be unable to obtain proper reports or
         an adequate accoimting from any Distriot Attorney,
         District Cler1\., oounty or preoinct officers 'as herein
         provided. either during or after his term of office,
         the County Auditor shall have authority to enforce
         an accounting thereof, and to take such steps at the
        'expense of the county as are necessary in his judg-
        ment to protect.,the interests of the county Or of
         the persons, firms, Or corporations entitled to such
        funds."
          It is our opinion that this statute authorizes the county      .,-,
    Auditor of Dallas County, one of the counties towhioh said
  . eta tute applie s. to take suOh legal action in the name of tb.e
   'oounty ashe deems necessary to enforoe the oollection of any
    money he finds any of the. officers named in the statute to be
    due the county. and to that endb.e may call upon the criminal
    District Attorney of Dallas County to file suit against the
    delinquent Officer. Should the Criminal. District Attorney
    fail or refuse to take such legal action, the .County AUditor
    may. at the expense' of the county, employ some attorney to file .
. suoh suit •. However; the authority of the County Auditor to
 . take such legal aotion· is not an exclusive authority. but is
    concurrent with the authority of the Commissioners.' Court and:.'
    County ':;reasurer, as well as tIle duty imposed by statute upon'
    the Criminal District Attorney.
       It is our opinion that the COL'411issioners' Oourt, una.er
  its authority to control and manage the finances and l:1usiness
  affairs of the county. has the power and authority to request
  the Distriot Attorney to bring a suit to enforoe settlement
  of such claims as those here under consideration •. It .also
  has the 'power and authori,ty to employ attorneys to assist
  him in the proseoution .t~~reof •. Under the faots here
  presented. it is .alsothe duty of the District Attorney to
                                    ,                 '"   I   I
                                                                      _.   2 _5




Iloil.. H. Pat Edwards,   page 21



file such suit and prosecute same independently of any request
so to do from the Camm.is sioners' Court, COUi'l.ty Audi tor or
County Treasurer..           "
     We herewith return to you the County Auditor's rellort
enclosed wi til. your request."
                                                 ,Yours very truly»
                                        ATTORKEY GENERAL OF TEXAS

                                        BY,      ()~. 2r.~~,
JWB: LJ                                 ,        ~'    Jas •. W. Bassett   '
encl.                                       ""                 Assistant




                                                                                  l
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                                                                                   'II
