 Hon. Joe Resweber                      Opinion No. M-   1198
~County Attorney
 Harris County Courthouse               Re:   Questions relating to the
 Houston, Texas 77002                         performance of the duties
                                              of a district clerk relating
                                              to trust funds, pursuant to
                                              Articles 1656a and 2558a,
                                              Vernon's Civil Statutes, and
                                              in light of Sellers v. Harris
                                              County,         ,S.W.2d
Dear Mr. Resweber:                             (Tex.Sup. 1972).

          Your recent letter requesting the opinion of this office
concerning the referenced matter asks several questions relating to
the duties of a district clerk regarding trust funds placed in his
custody, in light of the recent decision in Sellers v; Harris County,
     S.W.Zd        (Tex.Sup. 1972) (No. B-2892, May 31, 1972). Your
questions are as follows:

           "Question No. l.- Did the opinion of the
     Supreme Court of Texas, so rendered in said
     Sellers Case, declare Article 2558a, V.C.S.,
     in its entirety to offend Article 1, Section
     ‘19 of the Texas Constitution and the Fourteenth
     Amendment of the United States Constitution?

          "Question No. 2. - If your opinion to
     Question No. 1 is No, what sections of said
     Article 2558a, V.C.S., remain in full force
     and effect?

          "Question No. 3. - What effect, if any,
     does said holding in said Sellers Case have
     upon the presently existing depository contract
     between the Commissioners Court of Harris County
     and the Houston National Bank pertaining to
     Harris County District Clerk Trust Fund Ac-
     count entered into pursuant to Article 2558a,
     V.C.S.?



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Hon. Joe Resweber, page 2       (M-1198)



         "Question No. 4. - Was Article 1656a, V.C.S.,
    which contains therein the provision, to-wit
    1. . . and draw interest for the benefit of the
    County, . . .I, also declared by said Supreme
    Court in said Sellers Case to offend, in its
    entirety, Article I, Section 19 of the Texas
    Constitution, and the Fourteenth Amendment of
    the United States Constitution?

          "Question No. 5. - If your opinion to Ques-
     tion No. 4 is No, what sections of said Article
     1656a, V.C.S., remain in full force and effect?

          "Question No. 6. - What portions of Article
     1656b, V.C.S., are affected by the Sellers opinion?

          "Question No. 7. - If your opinions to
     Questions Nos. 1 and 4 are Yes, . . . (is the
     District Clerk) statutorily required, in order
     to avoid the penalties prescribed under Articles
     383 and 383a of the Penal Code of Texas, to in-
     stitute the procedure prescribed in Article
     2290, V.C!S., to safeguard Registry of the
     Court Funds?

          "Question No. 8. - The Supreme Court in its
     said opinion in the Sellers Case, affirmed the
     Trial Court's Judgment which among other things
     decreed, to-wit, 'at the conclusion of the liti-
     gation the trial court is to determine a reason-
     able fee to compensate Harris County for its
     accounting and administrative expenses incurred
     in handling the fund.' This lawsuit is now
     wholly concluded, but for future reference
     . . . (the district clerk want/s/) to know:
          II
           . . * (Is he) legally authorized to
     retain and accept such a reasonable fee,
     as determined by the Trial Court?

          "Is the collection of such a reasonable
     fee, as determined by the Court, to be re-
     ceived, reported and accounted for as other
     statutory fees of . . . (his) office?"




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Hon. Joe Resweber, page 3                        (M-1198)



           The following materials were submitted by you with your
letter:   (a) final decision of the Texas Supreme Court in Sellers
v. Harris County, dated Nay 31, 1972, on motion for rehearing;(b)
original decisipn of the Supreme Court in said case, dated April
5, 1972 (withdrawn); (c) Harris County's Brief in Support of Motion
for Rehearing; (d) Judgment and Decree of the District Court; and
 (e) Depository Contract by and between Harris County and the Houston
National Bank,.inter alia.

          Section 4a of Article 2558, Vernon's Civil Statutes, pro-
vides, in pertinent part, that:
          ,I
           . . . The Commissioners Court is authorized
     and directed to receive all interest so earned on
     time deposit of such trust funds and to place all
     such interest into the General Fund of the County
     as an offset to the expenses of handling such
     trust funds for the benefit of litigants."
     (Emphasis added.)

          Section 4b of that Article provides that:

          "The Commissioners Court of each county,
     acting by and through the County Auditor . . .
     is authorized to place in the General Fund of
     the county any accumulated interest derived
     from trust funds in the possession of County
     and District Clerks of such county . . ., g
     offset the expenses of handling such trust
     funds for the benefit of litigants."   (Em:
     phasis added.)

          Article 1656a, Vernon's Civil Statutes, also provides,
in pertinent part, that:

          "The County Auditor in counties having a
     population of one hundred ninetv thnnaand


                      _-   -----..---.I)   _“^     -..-   W”....GJ   ..d...   CI.G
          a   ---..

     forms to be used by the District Clerk . . . in
     the collection and disbursement of county reve-
     nues, funds, fees, and all other moneys collected
     in an official capacity whether belonging to the
     county . . . or to, or for the use or benefit of,
     any person, firm, or corporation: . . . All of
     the fees, commissions, funds, and moneys herein
     referred to shall be turned over to the County
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                                                                       ,




Hon. Joe Resweber, page 4       (M-1198)



     Treasurer by such officer as collected, and such
     money shall be deposited in the county depository
     in a special fund to the credit of such officer
     and draw interestfor  the benefit of the county;     _
     . . .11 (Emphasis added.)

          In Sellers v. Harris County, cited supra, the Supreme
Court of Texas held that, when trust funds are paid into court
during litigation and invested at interest by the district clerk
or county auditor, the district judge may direct the, ultimate pay-
ment of the interest to the owner of the principal, rather than
directing that all interest be paid to the county. The Supreme
Court also saidthat  ". . . At the conclusion of the litigation
the trial court was to determine a reasonable fee to compensate
Harris County for its accounting and administrative expenses in-
curred in handling the fund."   (Slip Opinion, p. 2.)

          Your first question asks if the Supreme Court declared
Article 2558a, unconstitutional in its entirety.  In referring only
to Sections 4a and 4b of that Article,.the Court said:

          "By depriving the owner of a sum not reason-
     ably related to the value of the county's services
     in safeguarding and investing the principal, the
     statute offends Article 1, Section 19 of the Gas
     Constitution aswell as the Fourteenth Amendment
     of the United States Constitution.  . . ." (Em-
     phasis added.)

          We are of the opinion that the rule of statutory construc-
tion applicable to your request is that stated in Vernon v. State,
407 S.W.2d 236 (Tex.Civ.App. 1966, error ref. n.r.e.):
          II
               . It is incumbent upon the courts to
                   .   .

     sever any unconstitutional provision and to
     sustain the remainder.   See Harris County Water
     Control & Imp. Dists., etc. v. Albright, 153
     Tex. 94, 263 S.W.Zd 944 (1954); and see City of
     Taylor v. Taylor Bedding Mfg. Co., 215 S.W.2d
     215-217, Tex.Civ.App. 1948) wr.ref. This is
     especially true where the statute concerns
     several matters.   Davis v. Whie, 260 S.W. 138-
     141, Tex.Civ.App. (19241, wr.ref. We believe
     that if such section which appellants complain
     of, should be held invalid, it is not so inter-
     mingled with other parts of the Act as to make

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Hon. Joe Resweber, page 5       (M-1198)



     it impossible to separate from the balance of
     the Act."  406 S.W.Zd at 243.~     I

          Being mindful of the foregoing language from Vernon, of the
fact that the Supreme Court in Sellers was only considering the con-
stitutionality of Sections 4a and 4b of Article 2558a, and of the
fact that the Article has fifteen different sections relating to
many other matters which appear to us to be wholly severable, we
have concluded that the Court did not hold Article 2558a unconstitutional
in its ,entirety, notwithstanding what might be interpretea as
language to the contrary ("the statute") in its opinion. Sections
4a and 4b are not so intertwined and,intermingled with the other
sections of the Article as to make the entire statute constitutionally
infirm. Rather, it is our opinion that the Court meant only to hold
Sections 4a and 4b; insofar as they were applied in the fact situation
in Sellers, unconstitutional, to the extent that the statutory pro-
visions deprived the owner of the fund in question his property
without due process of law.

          Nor are we of the opinion, as you suggest, that Article
2558a, minus Sections 4a and 4b, would be violative of Sections
51 and 52 of Article III, or of Section 6 of Article XVI, of the
Constitution of Texas.

          Therefore, your first question is answered in the negative.

          Our answer to your second question is that all sections of
Article 2558a remain valid and in full force and effect, with the
exception of Sections 4a and 4b, as those Sections are applied in
fact situations similar to that in Sellers.,-,Those Sections are still
constitutionally operable  to the extent that a reasonable portion of
the interest accumulated on such trust funds may be given to counties
to compensate them for their accounting and administrative expenses
incurred in handling the trust funds: the amount oft such reimburse-
ment to counties shall be set by the trial court having jurisdiction
of the cause of action in which the trust fund was established.

          Our answer to your third question is that the holding in
the Sellers case in no way invalidates or has any effect o,n the
depository contract dated March 30, 1971, and executed by and be-
tween the Houston National Bank and Harris County, inasmuch as
the provisions of Article 2558a relating to this depository con-
tract remain in full force and effect.

          Your fourth question asks whether Article 1656a was also
declared by Sellers to be unconstitutional in its entirety. Nowhere


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Hon.   Joe Resweber, Page 6         (M-1198)



in the Sellers opinion is that Article declared unconstitutional.
However, we are of the opinion that the portion of Article 1656a
reading "and draw interest for the benefit of the county", under-
scored supra, is of doubtful constitutionality in light of the
court's statements concerning Sections 4a and 4b of Article 2558a.
In light of the Sellers holding , such portion of Article 1656a must
be read to provide that the special fund,shall draw interest for
the benefit of the county to the extent that a reasonable fee to
compensate the county for its accounting and administrative ex-
penses incurred in handling trust funds is allowed by the courts
having jurisdiction of the cause of action wherein the trust funds
arose. Thus, your fourth question is answered in the'negative.

          The   answer to your fifth question is that all of Article
1656a remains   valid and in full force and effect, but subject to
the change as   to apportionment of the accrued interest mentioned
in our answer   to your question four immediately preceding.

          The answer to your sixth question is that no portions of
Article 165613, Vernon's Civil Statutes, are affected by Sellers.

          Inasmuch as your question number seven is predicated on
an affirmative'answer to your questions one and four, and inasmuch
as we have answered both of those questions in the negative, it is
not necessary for us to consider your seventh question.

          The answer to the first part of your eighth question is
that the Harris County District Clerk is, pursuant to the authority
of Sellers, legally authorized to retain and accept the reasonable
fee set by the trial court for Harris County's expenses incurred
in handling the trust fund.

          The answer to the second part of your eighth question is
that such fee retained and accepted by the Harris County District
Clerk is to be received, reported and accounted for as all other
statutory fees of his office.

                          SUMMARY

             (1) Pursuant to Articles 1656a and 2558a,
       Vernon's Civil Statutes, when trust funds are
       paid into court during litigation and invested
       at interest by the district clerk or county
       auditor, the district judge shall direct the



                               -5849-
Hon. Joe Resweber, page 7         (M-1198)



    ultimate payment of the interest to the owner
    of the principal less a reasonable fee to be
    determined by him to compensate the county
    for its accounting and administrative expenses
    incurred in handling the fund.

          (2) Article 2558a was not declared un-
    constitutional in its entirety by the Supreme
    Court of Texas in Sellers v. Harris County,
           S.W.Zd       (Cause No. B-2892, May 31,
    1972); rather, only Sections 4a and 4b of the
    Article were rendered unconstitutional, as
    applied in the factual situation set forth in
    S+ers,    to the extent that the statutory pro-
    visions deprived the owner of the fund in ques-
    tion his property without due process of law.

          (3) The Sellers case has no effect on the
    presently existing depository contract by and
    between Harris County and the Houston National
    Bank.

           (4) Article 1656a was not declared uncon-
     stitutional by the Sellers case, but the portion
     thereof reading "and draw interest for the benefit
     of the county" must be read in light of the
     Sellers holding.

          (5) No portions of Article 1656b, Vernon's
    Civil Statutes, are affected by the Sellers,
    decision.

           (6) A district clerk is legally authorized
     by Sellers to retain and accept the fee set forth
     in paragraph (1) hereinabove, and such fee is to
     be received, reported and accounted for as other
     statutory fees of his office.

                               Ver&    ruly yours,



                                          C. MARTIN
                                       ey General of Texas

Prepared by Austin C. Bray, Jr.
Assistant Attorney General

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                                         ’




Hon. Joe Resweber, page 8,    (M-1198)



APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Malcolm Quick
Scott Garrison
Mike Stork
Gerald Ivey

SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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