                         QBffice
                               of t!p IgttotnepQ3eneral
                                     &ate of pCexa$
DAN MORALES
 *l-mmEY
       GENERAL

                                          June30.1995

      Ms. Carole Wayhmd                          Opiion No. DM-357
      Midland county Auditor
      2oowestwsll                                Re: whetha      a county auditor may require
      Midland, Texas 79701                       the county attorney to prepare and submit,
                                                 for inchion in the county budget, a
                                                 projection of revenuesandarpmdituresfor
                                                 the county attorney hot-chwk fund for the
                                                 following fiscal yesr and related
                                                 questions (RQ-791)

      DesrMs. wayland:

             Yourprodecessorinoffi~asktdwfiahathecountyattorneymayberequindto
      prepare and submiL for inclusion in the county budget, a projection of mvenues and
      expadms     for the county attorney hot-check Gnd (the %ounty attorney’s fee fimd” or
      ‘Kmd”).for the upwmlngfiscalyesr.         InaIettertothisofficCyourpmdeccswr
      swwwzed his beliefthat section 111.003 of the Local Govanmmt codeauthorized
      Midland County to include the county attorney’s fee fund in the county’s budget:
                    Iw]hiletheexpezuKturesS-omthisfundshaUbeatthesole
                discmtion of the County Attorney, those expenditures are
                nevertheless part of the “[ . . . ] expenditures of the county
                government” [for purposes of Local Government code section
                111.003]. It is clear that Midland County CommissionersCourt may
                not consider the Fund’s estimated expenditures for the putpose of
                modiig expenditure budgets for the gmersl fund. Tkefore, I
                have concluded that the County Attorney should provide the
                estimates of revenu& and expenditures for the succeed@ fiscal yesr
                for budgeting the Fund, and the Budget OfEcer and Court must
                accept such estimates when assemblingthe County’s overall budget.
      In the alternative, your predecessor questioned wbeth~ section 114.002 of the Local
      (%mmment Code authorizes the county auditor to require the county attorney to report
Ma Carole Wayland - Page 2              (D&357)




his or her projection of revenues and expenditures of the timd for the succeeding year, and
whether the officisl county budget may indude the county attorney’s estimates.

        The Midland County Attorney dimgmes with your predecessor’s position. You
have submitted copies of letters he wrote to your predecessor, in which he claims that
section 102.007 of the Code of CriminalProcedum together with prior opinions of this
office, take the fund out of the county’s budgeting process. As he ssid in his
April 29.1994. letta to your predecessor, “[Tlhis knd is not subject to any type of
budget or approval by any body other than the elected County Attorney.”

       &forewedisarsrtheparticular6ndatissuehete,webelimitwillbahdpll
brieSytodescriithecountybudgetingprocess.      Inacountywithapopulationlessthsn
225,001, such as Midland County,t the county judge is responsiile for pmparhtg the
COUQ’S budget “to cover ah proposed expenditures of the county government for the
swxee&g iisud year.” Local Gov’t Code 5 111.003; see also 35 DAVID B. BROOKS,
COUNtYANDSFZCIAL      DIs’IRICC LAW5 15.3. at 532 (Texas Practice 1989). The county
~mayassistthecountyjudgeinthizendeavor.            LocdGov’tCode~111.003.        The
budget is to Ii& among other thin& %stimated revenues avsilable to cover the proposed
budget.” Id 8 111.004(b)(S).

       Toaidinpmpadngthebudget,“thecountyjudgemayrequireanycountyoiiicer
to ibmish information necesnq for the judge to properly prepare the budget.” Id
5 111.005. Ano5~whorefusestocomplymaybtpenalizedinaccordancewithsection
111.012oftheLoctdGovanmartCode.

       MtatbecoYntyjudge6ascompletedtheprepantiandthe.bvdgdandMeda
copyofitwiththecountyderk,seeid        p 111.006,thecownissionasuwtholdsaplblic
hearing on the proposed budget, id. 3 111.007(a). At the conclusion of the public hear&
the county commissionerscourt may adopt the budget, with or without amendments. See
id 8 111XlO8. Following final approval of the budget, “the commissioners court may
spend county funds only in strict compliance with the budget, except in an emergency.”
Id.5 111.010(b). Nevertheless, the court subsequently may revise the budget “for county
purposes.” Id.8 111.011.

        The county attomey’s’fee fund is amassed pursusnt to article 102.007 of the Code
of CriminalProcedure. Subarticle(a) authorizes a county attorney to collect a fee if his or
her office collects and processes dishonored or forged checks, Any party to the offsn~e is

     ~‘Ibe1994-95T~~UdsthcpopulationofMidlaadCoantyrs110,811.                   TED&LAS
MOIWNONEWS, 1994-95TEXASAUUNAC246 (1993).




                                        p.   1903
Ms. Carole Waylancl - Page 3           (DH-357)




her office wkcts and prowsses dishonored or forged checks. Any party to the o&me is
liable for the fw. See Code Grim. Proc. art. 102.007(b). Subarticle~(c)pmscrii the
smount of the fee the wunty attorney may wllect.~ Subartide (f) provides for the county
attomey’sfeefimd:
               Fees wkcted under Subsection (c) of this article shall be
          depositedinthewunty~inaspedal~dto&administer#l
          bythewuntyattomey....           ExpendituresfiomthisfundshaUbeat
          the sole discretion of the attorney and may be used only to defray the
          salaries and expemes of the prosecutor’s office, but in no event may
          thewuntyattomey...        supplement his or her own saky from this
          timd.
       This 051x has dimmed the county attorney’s fte fund in seversI opinions. We
have made dear that the cotmty attorney has exdusive control over monies in the fimd.
See Attorney General opinion I’M-1034(1989) at 3; see &o Attorney General opinion
I’M-738(1987) at 3.

        Whiletlte coamtycommissionerscourt odinatily wntrols an expenditum of county
fimds the. comty attorney need not obtain the wmmissioners court’s approval before
ucpwdhg money Corn the fimd. See Attomey Genersl Opinion JIK-313 (1985) at 2-3;
9cc akv Attorney General Opiion N-632 (1987) at 2 (stating that sktutoq predecessor
toGdeofcriminalProc&re           artide 102.007 carvea out exception to statukq
     ..




                                        p.   1904
Ms. Carole Wayland - Page 4             (DM-357)




wmty auditor. Attorney Genial Opiion M-3 13 (1985) at 3; see U&W    Attorney Gcnaal
Opiions JIM-%7 (1988) at 2, MW-584 (1982) at 3, MW-188 (1980). Morwver, the
county Utomey may not use the iimd for purpoti other than those listed in section
102.007 of the Code of Criminal Pmcedure. Set gerrerolly Attorney Gmaal Opiion
JM-313 (1985) at 3-13 @cussing various proposed uses of county attorney’s fee fund).

         We believe Attorney General opinion MW-439 (1982) is particulsrly relevant to
the issue you misc. Attorney General Opiion MW-439 considered whetha a airnina
district attorney must have wmpethively bid, pursuant to the statutes reqking wunties to
wmpetihly bid certain purchases, purchases of supplies and equipment the attorney
bought using money from the fimd. Upon exsmbhg the lsngufge of the statute aeating
the fund the opinion determined that expenditures from the fund arx wit@ the sole
disc&on of the county, district, or crimiml district attorney who has accumukcd the
fi~nd.3  Attorney Gened Opiion W-439 (1982) at 6. “Thus, by virtue of the express
                             hot-check fimd is explidtiy placed beyond tha reach of the



        The relevant wmpaitive bidding statutes, V.T.C.S. articles 1659a4 and 2368a,s
resllired8-w        wmmission~~ court to wmpetitively bid the purchase of catain
nrppliesaadequipment~toawardthcwntradtothatbidderwho,inthejudgmemof
the WU@ wmmissionas court, submitted the lowest qxmsible bid Id at l-2 Based
on their plain language, the opinion determined that the competitive bidding statu&s
8ppliedonlytocertainpurchswmadebythewuntycommm          ’ ‘oncrs CouItp Id.at6.




        *rae lo&bitm rep&d V.T.C.S. tide 16% in 1985. See AU of May 27, 19S5,69tb Ix&
RS.. ch. 641.5 11(l), 1985 Tu GUI.Laws 2377.2384.

        JTbck@ab~1~rrpcaledV.T.C.S.a&k2368ain1981.         SeeMdMay1,1987,7OtbLe;k.
RS., ch. 149.0 49(l). 1987 Tcx. Gm Laws 707.1307. The mat&l in aftick 2368a Aatiq ta cmntks
divnrscdin~Gencral~~MW-)39(1982)irnowfoundinEhapta262,nrbchPptcrCdthc
lAlc3l-code.

       %c of tbc rolavaatcompetitivebit          s&Mcs, V.T.C.S. Micle 236% applied only to a
amty achg “tluoygb its ?mmisioncr~ C+”             @pcy Qcnaal Opinion MW-439 (1982) at 6.
~htibo@m.cy-=d                   chatmm-          b+w smutc ~a5 d Fqs=d” rinks 0 coonty
                 anomwsaoocrswurtmmakoaspcu6c~                   Id. SmMy,moUwW
ampctitiva biddinS stata& V.T.C.S. article 16S9a.@ititly t&and only to cmtlausfoftbcprrrhase
ofRIpplic3aodmtbattbc         commisioaas anm awar&d.Id.




                                         p.   1905
Ms. Csrole Wayland - Page 5             (DM-357)




        Because a wmmissionem court is “without any right to admhist~ the @mt+hedt]
tbnd or to be involved in making expenditure3 f+om it,* the opinion wnduded the
wmpetitive bidding statutes did not apply to purchams made with money from the fimd.
Id. To conclude o&wise, this office stated, would allow a wmmissioners court
indirectly to control the tbnd, and such a result would be wntrsry to the express language
of the statutory predecessor of article 102.007 and, theretbre, to the legislature’s intent.
Id.Theopinion wntinued with an example: “A wmmissioners court could. . . refuse to
acceptwyoranbidsinaparticularinstMceMdthusintatirrwiththearausiveri~of
the designated individuals to admit&a        the fund and to determine when, for what
purposes, and unda what drcumstwccs       expenditures willbemadefiomit."    Id.

       Sii,      Attorney Gene-mlOpiion IM-313 indicated that the county attorney
mayuscmoncy~mthefundtoincnasethe~esofthecountyattorney’s~
withoutflrst rewiving the approval of the wmmissionerswurt.     AttorllqGenersl
Opinion m-313 (1985) at 9. Moreover, the opinion contin& the wmmissioners court
may not subsequenUyreduce the amoti the county attorney’s statT rewives so 8s to
camt~~~ thesalary    incmses.Id. Sucha rcqxme would interfere with the county
Utomey’s “sole disc&on” over the 6md. Id.

        Inouropiniostopamitacountyjudge,or~wuntylluditorwbehalfofthe
countyjudge,toraquintbew~~~~torubmitproposedrevaruesrad
~forthecapmty~~‘sfwfimdfortheupoominefisalyear~be
tamawwttoprovidingthecountywmntissionerscouttanindhectmeansofwmrolhng
tbefimd,seeAttomeyGemralOpinionMw439(1982)rt6,orameras~~
witlithe county 8ttomey’s exdusive discdon over the fW& see Attorney Gene4
OpiionJM-313(1985) at 9. Unda the wunty budgeting statutes, ifthe county attorney
isrequindtosubmittothewuntyjudgeestimatedrmrmesand~~fortheuse
of the fimd during the upcoming tiscsl yesr, the estimates, along with the rest of the
comty budget, would be filed with the wunty dak and would be available for pubhc
hspection. See Local Gov’t Code Q 111.006. Even if the wmmissionem court
understands that it may not modify the county attotney’s proposed budget, the public may
 wmment on it during the public hearing on the proposed budget. See id 0 111.007(a).
 Commissioners may feel wmpelkd to respond to public W~KUS,          particularly if they

(f-      continued)
        Tbisofficemtal.inAtlomcyGcncralopiaiolIlM-96l.thatthclcgislatlucbadlmadtdtbe
bot~fandbnvsndlbeoo~bii6lamta.                    Iuma99~opinionlM-967(1988)~2.
T6cOpbliOllltMiWd,bOWCVCf,lbC      atoadmwdidootcbaogoauamchl6iooioAttomcyGcnaal
 opioioo
      MW-W       that botebcck
                            faod
                               porch         arc
                                               aot
                                                 mbjat
                                                     towmpaitivc
                                                              biading
                                                                   m.                    Id.




                                        p.    1906
Ms. C&roleWayland - Page 6              (DM-357)




cannot amend the wmty attorney’s budget for t& fund in response to such wmment.$.
See id. 0 111.008. Altawtkdy, citizws may view the wmmissionas wurt’s silence or
retkssltoamendthebudgetastacitappmval.

       In addition, the county budgeting process fosters acwun&i        for the expenditure
of wunty funds. By budgeting appropriations in advsnce of the stsrt of the tiscal year. the
zp;&tpel                   the application of county timds to the purposes for which they
                     . . . prevent the application of such fimds to 0th~ putposq
and.. .pmvent the cxpe&um of greata sums of money thsn are naxssrq for
1egiGmstewuntypqoscs.”            See4CHF.sERJMdEs&nEkIJ,~UCAL
GovERNMprr-                0 43.10, at 43-21 (Loud Govamma Law 1990). To de&mine
haethatthecountyattorneymustrubmitabudgdfortkcountysttorney’sfac~
wouldarggestthafundasectionlll.Olo@)oftheLocaloovanmmtcodc,theawnty
attorney may spwd monies !?um the knd only “in strict wmplisnw with the budget,
exceptinanemagwcy.”           LoadGov’tCode~111.010@).          Furthamore,asthewunty
attorney has suggested in a letter to your predecessor, citizws may be led to wn&de thst
the wmty attorney is irresponsiily using monies in the fund because he or she is not
complyingwith the budget for the county attorney’s fee fund.7

       We~concludethattheeounty~*s~amdiswhollywtsideof
the comty budgeting process. We construe section 111.003 oftbe Local CMamwnt
code,wlichrequimthecotmtyjudgeto~abudgettowveraUpmposed
exp&immofthewuntygovemnl         ent for the suweeding tIsaxl year,” to be inapplicable
tothewuntyattomey’sfeefimdbecausethewuntywmmissionerswult&sno~to
dmi&ertheamdortobeitlvolveditlmakingoxpendihaeo~it....”                  &eA!tomey
Gwaal Opinion MW439 (1982) at 6. Thus, section 111.003 does not authorize the
 camtyjudge,orthecoMtycluditoronbehalfofthecountyjudge,torequirethccounty




                                         p.   1907
Ms. Carole Wayland - Page 7             (DM-3.57)




attorney to submit a budget for use of the county attorney’s fee fbnd for the upwmbig
tisclllyear.

        Comparing artide 102.007 with article 59.06(d) &her bolsters our conch&on.
At-tide 59.06 M~~.~Ics, in spdfied drwntstance~, a special fbnd in the county treasury
intO which a COWQ,district, or criminal district attorney must deposit proceeds from the
sale of seized or forfeited contraband. Code Crim. Proc. art. 59.06@). (c)(l). While the
UtOrney representing the state is the administrator of the special fund, see id art.
59.06(a), article 59.06(d) expressly precludes the attorney from atpending the proweds
unless the attorney previously has “submitted to the wmmissioners wurt” -a budget for
the expeaditun of the proweds.” See Attorney General Opinion DM-246 (1993) at S-6
(stating that article 59.06(d) requires only that attorney submit budget for v        of
prowe& county wmmissioners cotut may not evaluate such budget). Clearly, the
legislature wuld have enacted a similarrequirement for the expenditure of limds wkcted
pursmmt to artide 102.007 of the Code of CriminalProcedure, but it has chosen not to.
For us to impose such a requirement here would be inappropriate.

        We do not believe our wnchtsion will hsrm the county’s budgeting process in any
way. Section 111.094(b)(S) of the Local Government Code stipulates that the. budget
nut estbate revenues su@ient to cover the county’s proposed expenditures. Indeed,
thepurposeofarequesttoawuntyofficertosubtnitastatetnentofacpeaditunsor
cbargestheofficaintendstoincurinthenaafiscalyeargw~ybtoaidthecounty
judge, and subsequently the county wmmissioners wurt, “in wnsidering the amounts
rsquiredforthe~corporateobjcctsfor~chfundssbouldbeappropriated.”                       20
C.J.S. Q 200.at430(1990). As we have suggested previously, the county wmmissioners
court may not use expenditures from the iimd to reduce county appropriations to the
wunty attorney’s office. See Attorney General Opiion JM-313 (1985) at 9. Thus
 quiring the camty attorney to submit a budget for the wunty attorney’s fee fiuul for the
upwming tlscal year sems no practical purpose.

        We fiutha conclude that section 114.002 of the Local Govemtnent Code does not
authotize a wtmty auditor to require the county attorney to report his or her projection of
revenues and expenditures for the fund for the succeeding Sscal year. Section
114.002(2)(A) rewires the wunty auditor to establish the manner in which a wunty
official annwIly must report “office fees wkted and disbursed.” (Emphasis added.)
Section 114.002(2)(A) clearly refers to office fees the county official has, during the past
year, rw&ed and expended. We cannot construe such plain hquage to author& a
county auditor to rewire of a county officialprojections of amounts to be collected and t0
be disbursed in the fbture.




                                        p.   1908
Ms. Carole Wayland - Page 8          (DM-357)




       We do not Maui to suggest that the wunty attorney may not be. held awowtsble
for sny misuse cb the wunty attorney’s fee fund. To the contrary. the wunty attorney is
acwwtable for the proper use of the fbnd. See Attorney Genaal Opiions I?+%7
(1988) at 2, N-632 (1987) at 2-3, MW-584 (1982) at 3, MW-188 (1980). The auditor is
autho-to       oversee the county attorney’s books and records regarding the fbnd.* See
Local Gov’t Code Q112.006(a). Morwva, the county auditor is requirad, at least
annually, to ‘Yidiyexamine”the county attorney’s aw~unts.~ See id.8 115.003S(b).~”
The county attorney must file fdl wwssaty reports wnceming the receipt and expenditure
of monies to the iimd (&a the wunty attorney has received or expended the money).
See id. 56 114.041. .042, .045. Fiiy, ss we have suggested previously, the wuoty
attorney must administa the fimd in accordance with any accounting and control
prowdurcs pmsaii        by the wunty auditor. See Attorney General Opinions J&%7
(1988) at 2, Jh4-632 (1987) at 2-3, LAW-584(1982) at 3, MW-188 (1980).




                                      p.   1909
Ms. Carole Wayland - Page 9          (DM-357)




                                SUMMARY

             The wunty attomey’s fee fund, awumulatad pursuant to article
         102.007 of the Code of Criminsl Procedure, is wholly outside of the
         wunty budgeting process. The county judge, or the wunty auditor
         on behalf of the wunty judge, may not require the county attorney to
         submit a budget for use of the county attorney’s fee fund for the
         upcoming fi3cslyear.

             Section 114.002(2)(A) of the Local Government Code
         authorizes a wunty auditor to establishthe manner in which a wunty
         05dal must report office fees the 05cisl received and expended in
         the past. The plain language of section 114.002(2)(A) does not
         pemdt a county auditor to require a county 05cial to project
         amounts the officialwill wkct and will disburse in the tkture.




                                                  DAN MORALES
                                                  Attomey General of Texas

JORGE VEGA
F~As&antAttom9Gweral

SARAH J. sHIluEY
chir, opiion cJanminee

Frepsmd by Kymberly K. Oltrogge
As&ant Attorney General




                                      p.   1910
