                      The Attorney                 General       of Texas
                                           March    31,   1978

JOHN L. HILL
Attorney General

                   Honorable Mike Westergren                Opinion No. H- 114 8
                   Nueces County Attorney
                   Nueces County Courthouse                 Re:    Duty of County Treasurer with
                   Corpus Christi, Texas 78401              respect to a special Tlash money” fund
                                                            for law enforcement purposes.

                   Dear Mr., Westergren:

                          You have requested our opinion regarding the duty of the county
                   treasurer with respect to a special “flash money”,fund for law enforcement
                   purposes.

                          On November 15, 1977, the commissioners court of Nueces County
                   authorized the establishment of a special account in the’amount of $50,000
                   for use by the sheriff as “flash money” in the enforcement of the narcotics
                   laws, and directed the issuance of a check in that amount to activate the
                   account.   The county treasurer, exercising his discretion under article 1713,
                   V.T.C.S., declined to countersign the check. Gn November 22, the commis-
                   sioners court directed the treasurer “to countersign or affix his signature to”
                   the check. The following day, as the result of a mandamus action brought~
                   against the treasurer, a district court ordered him to approve the check. The
                   propriety of the district court’s order is not in issue, and the questions raised
                   in that proceeding, including those relating to the validity of the establish-
                   ment of the fund, cannot be presented to the Attorney General. See Gussett
                   v. Nueces County, 235 S.W. 957, 860 (Tex. Comm’n A p. 1921, jdgm%dx
                    Attorney General Opinion H-171 (1973); O-1647 P1940).            The treasurer
                   subsequently complied with the order. You ask whether the treasurer has any
                   further duty or liability with regard to the special fund.

                         Article 1709, V.T.C.S., describes the duties of the county treasurer:

                                  The County Treasurer, as chief custodian of county
                               finance, shall receive all moneys belonging to the
                               county from whatever source they may be derived;
                               keep and account for the same in a designated
                               depository or depositories;  and pay and apply or




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Honorable Mike Westergren       -   Page 2 (I+11481



           disburse the same, in such manner as the Commissioners
            Court may require or direct, not inconsistent with consti-
           tuted law.    Said court may provide funds for adequate
           personnel and proper media that would enable the treasurer
           to perform such constituted duties. Upon failure to perform
           such duties the treasurer shall be guilty of dereliction of
           duty and subject tomprosecution.

Article 1714, V.T.C.S., further requires the treasurer   to

            examine the accounts, dockets and records of the clerks,
            sheriff, justices of the peace, constables and tax collector 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
            the recovery thereof.

It would appear that, except for the examination and reporting duties required by
article 1714, the treasurer’s duties with respect to any particular    check are
complete as soon as he has affixed his signature thereto.

      As to the treasurer’s liability     for the fund, article   17098, section   3(b),
V.T.C.S., provides that nothing therein

            shall release any County Treasurer for any loss resulting
            from any official misconduct or negligence on his part. . . .

In McDonald v. Farmer, 56 S.W. 555 (Tex. Civ. App. 1900, no writ), however, the
court held that, where the treasurer has paid a warrant in the discharge of his duty,
he ought not to be held liable to the fund out of which it has been paid. & at 557.
.&I our opinion whatever doubts may have existed about the treasurer’s duty were
dispelled by the district court’s order of November 23, 1977.

                                    SUMMARY

           Except for the examination and reporting duties required by
           article 1714, V.T.C.S., a county treasurer’s duties with
           respect to any particular check he signs in his official
           capacity are complete as soon as he has affixed his signature
           thereto.   Where a county treasurer has affixed his signature
           to a check upon a valid order of a district court, he will not
           be liable for doing so.




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        Honorable Mike Westergren   -   Page 3   (H-1148)




                                                 Attorney General of Texas

        APPROVED:




        C. ROBERT HEATH, Chairman
        Opinion Committee




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