,




                 TEE   ATTORNEY         GENERAL
                          OF    TEXAS


                           January 30, 1990



    Mr. Pasco Parker              Opinion No.   ~~-1137
    Collin County Auditor
    210 South McDonald Street     Re:    Whether a county auditor
    I&Kinney, Texas 75069         may prescribe a weekly revenue
                                  reporting format which requires
                                  certification by an     elected
                                  official (RQ-1760)


    Dear Mr. Parker:
          You ask whether a county auditor may prescribe a
    weekly revenue reporting format which requires the notarized
    signature of elected county officials. Your question is         *
0   prompted by an order of the commissioners court of Collin
    County adopted at the request of the county auditor.     The
    order requires weekly remittances of collections made by the
    county tax assessor-collector. The order also authorizes
    the aud.itorto prepare a weekly reporting format pursuant to
    sections 112;OOl and 114.003 of the Local Government Code.
         Your letter suggests that the order of the commis-
    sioners court was adopted pursuant to section 31.10 of the
    Tax Code:

                (a) Each month the collector of taxes for
            a .taxing unit1 shall prepare and submit to
            the governing body of the unit a written
            report made under oath accounting for all
            taxes collected for the unit during the
            preceding month. Reports of collections made
            in the months of October through January are
            due on the 25th day of the month following
            the month that is the subject of the report.
            Reports of collections made in all other


         1. A county is included in the definition of the    term
    "taxing unit." Tax Code 5 1.04(12).
P




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Mr. Pasco Parker - Page 2   (JM-1137)




       months are due on the 15th day of the month
       following the month that is the subject of
       the report. A collector for more than one
       taxing unit may prepare one report accounting
       for taxes collected for all units, and he may
       submit a certified copy of the report as his
       monthly report to the governing body of each
       unit.
           (b) The collector for a taxing unit shall
        prepare and submit to the governing body of
        the unit an annual report made under oath
        accounting for    a.11 taxes   of the    unit
        collected or delinquent on property taxed by
        the unit during     the preceding    12-month
        period. . . .

           (c) - * .[A]t least monthly the collector
        for a taxing unit shall deposit in the unit's
        depository all taxes collected for the unit.
        The governing body of a unit may require
        deposits to be made more frequently.
     The language of subsection (c) would appear to grant
the commissioners court the authority to adopt the order
requiring the county tax assessor-collector to make weekly
remittances of tax collections. However, a separate statute
appears to specifically address the duty of the county tax
asse'ssor-collectorto make deposits of tax collections in a
manner that conflicts with section 31.10.      In order to
demonstrate that section 31.10 is the governing provision, a
review of the second provision is necessary.
     Section   113.021(a) of    the     Local   Government   Code
provides:
           The fees, commissions, funds, and other
        money belonging    to a    county shall    be
        deposited with the county treasurer by the
        officer who collects the money. The officer
        must deposit the money in accordance with any
        applicable procedures prescribed by or under
        Section 112.001 or 112.002.     However. the
        cou t ta
        fl          assess0                    evosit
        the monev in accordance with the vrocedures
        prescribed bv or under the Tax Code and other
        -.
        laws   (Emphasis added.)
Section 116.113(b) of the Local Government Code states:




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              A county tax assessor-collector      shall
           immediatelv devosit in the county depository
           taxes collected on behalf of the state, the
           county, or a district or municipal sub-
           division of the county. The taxes remain on
           deposit   pending    the   preparation    and
           settlement of the assessor-collector's report
           on the tax collections. (Emphasis added.)
         A familiar and well-established rule of statutory
    construction provides    that when    a general    statutory
    provision and a specific      statutory provision are     in
    conflict, the former provision yields and the         latter
    prevails. See 67 Tex. Jur. 3d Statutes 5 126 (1989) and
    cases cited therein? see also Gov't Code § 311.026 (a
    special or local provision prevails over a general provision
    in the event of      irreconcilable conflict).    It   would
    therefore appear that     section 116.113    of the    Local
    Government Code, giving more specific instructions to the
    county tax assessor-collector regarding the deposit of tax
    collections, would prevail over section 31.10 of the Tax
    Code as it relates to such deposits.
P        Section 116.113, however, was enacted as part of the
    nonsubstantive revision of statutes relating to       local
    governments. Local Gov't Code 5 1.001(a).    It is derived
    from formerV.T.C.S. article 2549,2 which was repealed with
    the enactment of the Local Government Code. Acts 1987, 70th
    Leg., ch. 149, § 49, at 1306. Section 31.10 was enacted in
    1979 as part of Title 1 of the Tax Code, also known as the
    Property Tax Code. See Acts 1979, 66th Leg., ch. 841, § 1,
    at 2217. Subsections (a)(l), (c), and (d) of section 6 of
    the bill enacting the Property Tax Code listed the various
    civil statutes which were expressly repealed by the bill:
    article 2549 was not among those statutes. Section 6(b) of
    the bill, though, provided the following:
               All other general, local, or special laws
            in conflict with this Act are repealed to the
            extent of the conflict, and the failure
            expressly to repeal or amend any law in
            conflict with this Act is not evidence of a



         2. Article 2549, V.T.C.S.,     set out procedures for
    designating the county depository   and for placing funds in
P   the depository.




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Mr. Pasco Parker - Page 4   (JM-1137)




        legislative    intent   that   the   law   not   be
        repealed.
Id. § 6(b), at 2330.
     The language just quoted makes it clear that the
provisions of section 31.10 of the Tax Code supersede
conflicting provisions of article 2549.    The enactment of
section 116.113(b) as part of the Local Government Code did
not serve to revive the repealed portion of article 2549.
See Gov't Code § 323.007(b) (when revising a statute the
legislative council, charged with the duty to execute the
permanent statutory revision program, may not alter the
sense, meaning, or effect of the statute). It is therefore
clear that the commissioners court was authorized to adopt
the order reouiring the county tax assessor-collector
make weekly deposits of tax collections.     The issue th,':‘
remains is whether the county auditor may require the tax
assessor-collector to file a notarized revenue reporting
form on a weekly basis.
     You do not describe the content of the weekly revenue
reporting format and do not disclose whether it is intended
primarily for the use of the county auditor or the commis-
sioners court. Since the order of the commissioners court
is predicated on the authority of sections 112.001 and
114..003of the Local Government Code, which pertain chiefly
to the county auditor, we will assume that the report is
intended solely for use by the auditor.
     Section 112.001 of the     Local Government Code     provides
the following:
           In a county with a population of less than
        190,000, the county auditor may adopt and
        enforce regulations, not inconsistent with
        law or with a rule adopted under Section
        112.003,3 that the auditor considers neces-
        sary for the speedy and proper collecting,
        checking, and accounting of the revenues



     3. Section 112.003 of the Local Government         Code
requires the comptroller of public accounts to prescribe 1)
forms to be used by county officials in the collection of
county revenue and disbursement of funds and 2) the manner
of keeping and stating the accounts of officials.




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Mr. Pasco Parker - Page 5 (JM-1137)




       and other funds and fees    that belong to   the
       county.
Section 114.003(a) provides:
           A county official or other person who is
       required under this subtitle [subtitle B of
       title 4 of Local Government Code chapters
       111-119 and 1301      to provide a    revort,
       statement, or other information to the county
       auditor and who intentionally refuses to
       comply with a reasonable request of the
       county auditor relating      to the   revort,
       statement,         information,  commits   an
       offense. (Emgiasis added.)
In order to fully appreciate the import of these provisions
we must consult other sections of the Local Government Code
relating to county finances and reporting.
     Section 114.001(a) of      the   Local   Government   Code
provides the following:
           Each revert required under this subtitle
        [title 4, subtitle B] must be made in writing
        and must be sworn to bv the officer making
        the report before an officer authorized to
        administer oaths. (Emphasis added.)
The county auditor is required under section 114.002 to
determine the time and manner for making reports to the
auditor as required by subtitle B of title 4 of the Local
Government Code.   Section 114.001(a), however, applies to
all reports required by subtitle B and not merely to those
that must be submitted to the county auditor.     See, e.a.,
Local Gov't Code 55 114.023 (county auditor's monthly report
to commissioners court in a county with population of more
than 225,000), 114.024 (auditor's report to commissioners
court at each regular meeting of court), 114.025 (auditor's
monthly and annual reports to commissioners court and
district judges), 114.042 (report to county clerk by officer
who collects county funds), 114.044 (report to commissioners
court by officer who      collects fines, jury fees,      or
judgments), 114.045 (district attorney's report to county
clerk relating to county money received since last term of
district court), 114.046 (annual report of county officers
compensated on fee basis), 114.061 (county treasurer's
monthly claims report to county clerk). Likewise, section
114.001(a) would not apply to reports submitted to the
commissioners court or county auditor under provisions of



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Mr. Pasco Parker - Page 6 (JM-1137)




the Local Government Code outside of subtitle B of title 4.
See, e.a. ,did 9 152.035(d) (mileage reimbursement to county
auditor or assistants made on basis of sworn monthly expense
report).
     Sections 114.001 and 114.002 are to be contrasted with
section 112.005 of the Local Government Code, which requires
the county auditor to maintain accounts for each county
officer authorized or required by law to receive or collect
money that belongs to, or is intended for use by, the
county. Subsection (c) of that provision states:
           The auditor shall require each person who
        receives money that belongs to the county
              to render statem-     to the auditor.
        iEmphasis added.)
Id. § 112.005(~).4
     The distinction between VVreports'land "statements" is
significant because reports which are required by subtitle B
of title 4 of the Local Government Code must be sworn to by
the officer presenting them.     18Statements" that may be
required by the auditor under section 112.005, on the other
hand, apparently need not be delivered under oath.5    There
are several reasons for this conclusion.


         Other provisions of subchapter B require        the
prepazation or filing of "statement~.~' Section 114.041
requires a district, county, or precinct officer to keep as
part of his official records a *8statementN*  of the fees,
commissions, costs, or amounts "earned by the officer" or
received by him as deposits for costs or trust fund
deposits. Section 116.117 requires the county depository to
provide the commissioners court with a "detailed monthly
statement" at each regular term of the court. In addition,
section 114.021,    entitled *'County Clerk's Revort      to
Commissioners Court at Regular Term," requires the clerk to
maintain and present 'Iatabular statementI*and specifies its
contents. (Emphasis added.)
     5. This fact does not relieve the officer who submits
a statement to the county auditor or under whose authority a
statement is submitted of the obligation to ensure the
accuracy and truthfulness of the statement. See Penal Code
!j37.10 (tampering with, falsification of, or unlawful
destruction of a governmental record).




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    Mr. Pasco Parker - Page 7   (JM-1137)




         First, we note that the legislature has demonstrated
    that when it intends to require county officers to provide
    information under oath, it does so expressly.     See, e.a.,
    Local Gov't Code 5 152.035(d) (county auditor's        sworn
    monthly mileage expense report): Attorney General Opinion
    v-1309 (1951). Also, the fact that section 114.003 imposes
    a criminal penalty for the intentional failure of a county
    officer to comply with a reasonable request from the auditor
    concerning a "revert, statement, or other information" that
    is required under subtitle B indicates that, simply as a
    matter of statutory construction, the terms "report" and
    *8statement11
                are not intended to be synonymous. Questions of
    due process would arise under section 114.003 if "state-
    ments" were required to be sworn to by the officer rendering
    the statement because section 114.001 gives notice only that
    "reportsI1must be delivered under oath.    A county officer
    prosecuted under section 114.003 for failing to submit a
    section 112.005 statement under oath could argue that
    section 114.003 is unconstitutionally vague because neither
    it nor section 114.001 qive fair warning that such conduct
    is unlawful. See aenerallv Lanzetta v. New Jersev, 306 U.S.
    451 (1939); Tex. Const. art. I, 5 10 (every citizen is
    entitled to know the nature of an accusation against him).
0
         The relevance of this distinction is demonstrated by
    section 114.043 of the Local Government Code, which contains
    the following pertinent language:
               In a county with a population of 190,000
            or more, the county auditor may require a
            district clerk, district attorney, county
            officer, or precinct officer to       furnish
            monthly reports, annual reports, or other
            reports regarding any money, tax, or fee
            received, disbursed, or remaining on hand.
            In connection with those reports, the auditor
            may count the cash in the custody of the
            officer or verify the amount on deposit in
            the bank in which the officer has deposited
            the cash for safekeeping. (Emphasis added.)

         Section 114.043 confirms that the legislature did not
    intend section 112.005 statements to be the equivalent of
    section 114.001 reports: otherwise, there would have been no
    need to enact section 114.043. Under this provision a
    county auditor    could clearly    require a    county   tax
    assessor-collector to file reports -- which under section
    114.001 would have to be sworn to by the assessor-collector
    -- regarding the receipt of taxes by his office.



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Mr. Pasco Parker - Page 8   (JM-1137)




     Section 114.043 is equally important because it reveals
the legislature's understanding of the nature of the county
auditor's general powers. That the legislature thought it
necessary to expressly provide county auditors in counties
with populations of 190,000 or greater the powers described
in section 114.043 is significant because, like their
counterparts in counties with fewer than 190,000 inhabi-
tants, they have the power to adopt and enforce regulations
necessary for the speedy and proper collecting, checking,
and accounting of county funds. Local Gov't Code g 112.002.
This office has in the past .interpreted this and other
grants of authority to the county auditor broadly to permit
the auditor to obtain information from county officers that
is necessary to the      accomplishment of the     auditor's
statutory duties.    See. e.a    Attorney General    Opinion
JM-1099 (1989) and authorities' cited therein. But we have
also rejected attempts by county auditors, through the use
of a reporting requirement, to interfere in matters that are
left to the discretion of other county officers. See, e.a.,
Attorney General Opinion JM-879 (1988) (county auditor could
not require members of commissioners court who receive fixed
monthly travel allowances to file travel documentation).
     We have located no similar express grant of authority
to county auditors in counties with populations of less than
190,000. If the legislature deemed the general powers of
the county auditor as inadequate to confer the power
described in section 114.043, then we do not believe the
authority you inquire about may be implied from sections
112.001 and 114.003 of the Local Government Code.
     Accordingly, we conclude that the county auditor in a
county with a population of less than 190,000 may lrot
require the    county tax    assessor-collector to   submit
notarized or sworn weekly revenue reports to the auditor
pursuant to sections 112.001 and 114.003 of the Local
Government Code. However, we do believe that the auditor
may require county officers who receive money belonging to
the county to submit unsworn statements under sect'on
112.005 of the Local Government Code in a form and manner
prescribed by the auditor. See Attorney General Opinions
JM-1099 (1989); V-1309 (1951).
                       SUMMARY
           A county auditor in a county with a
        population of less than 190,000 may not
        require the county tax assessor-collector to
        submit notarized or sworn weekly revenue
        reports to the auditor pursuant to Local



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Mr. Pasco Parker - Page 9    (~~-1137)




        Government Code sections 112.001 and 114.003.
        The county    auditor may    require   county
        officers who receive money belonging to the
        county to submit unsworn statements to the
        auditor under section 112.005 of the Local
        Government Code    in a    form and    manner
        prescribed by the auditor.




                                   JIM     MATTOX
                                   Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Steve Aragon
Assistant Attorney General




                                p. 5996
