                                ATTORNEY GENERAL OF TEXAS
                                               GREG        ABBOTT




                                                     May 29,2012



The Honorable Anna Laura Cavazos Ramirez                      Opinion No. GA-0937
Webb County Attorney
Post Office Box 420268                                        Re: Authority of a county treasurer with regard to
Laredo, Texas 78042-0268                                      the reconciliation of accounts of elected officials
                                                              (RQ-1018-GA)

Dear Ms. Ramirez:

        You ask for an opinion concerning which county official is responsible for reconciling the
checks and orders for payment from special fund accounts. l As background, you explain that certain
funds or accounts are created by statute and under the direct control of an elected county official
other than the commissioners court? Request Letter at 2. In Webb County, you note that the tax
assessor-collector controls eleven such special fund accounts. [d. at 3. You tell us that in the past,
the county treasurer has reconciled these special fund accounts for the tax assessor-collector. [d.
However, after the Eighty-second Legislature amended Local Government Code section 113.008,
the county treasurer refused the tax -assessor collector's request to continue reconciling the accounts.
[d. You therefore ask us to opine on whose responsibility it is to reconcile these accounts.

         Local Government Code section 113.008 states, in relevant part:

                   (a) The county depository shall provide statements of all bank
                   activity and documentation supporting a statement's transactions not
                   less than once a month to the county treasurer.

                   (b) The county depository shall provide the information required by
                   Subsection (a) to the official responsible for the account if:



         ILetter from Honorable Anna Laura Cavazos Ramirez, Webb Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y
Gen. at 1-2 (Oct. 31, 2011), http://www.texasattorneygeneral.gov/opin ("Request Letter").

          2As one example, the Legislature has authorized a county attorney, district attorney, or criminal district attorney

to collect a fee for hot checks processed and collected by the attorney. TEX. CODE CRIM. PROC. ANN . art. 102.007(a)
(West Supp. 2011). The fees are deposited into the county treasury in a special fund to be administered by the county
attorney, district attorney, or criminal district attorney. Id. art. 102.007(f).
The Honorable Anna Laura Cavazos Ramirez - Page 2                        (GA-0937)



                        (1) the checks and orders for payment are payable from funds
                  under the direct authority of an official other than the county treasurer
                  as provided by statute; and

                       (2) the official has not delegated the responsibility for
                  reconciliation under Subsection (b-l).

                  (b-l) The official may request the county treasurer to be responsible
                  for the reconciliation of the checks and orders for payment payable
                  from the funds that are under the direct authority of the official.
                  Except as provided by Subsection (g), an official who fails to
                  reconcile the official's special accounts monthly shall transfer
                  responsibility for account reconciliation to the county treasurer.
                  Unless the official and county treasurer set another period in writing
                  for the duration of a transfer under this section, the transfer is
                  effective for the duration of the term of office for the designating
                  officer.



                  (f) Except as provided by Subsection (g), an official with special
                  funds in the depository bank shall :

                        (1) reconcile all balances and transactions in the statement of
                  activity to the transactions and balances shown on the official's
                  records; and

                       (2) each month, ensure all financial adjustments resulting
                  from the reconciliation are reported to the county auditor for entry in
                  the general set of records and reflected in the cash receipts and
                  disbursement registers of the county treasurer. 3

TEX.Loc. GOV'TCODEANN. § 113.008 (West Supp. 2011) (footnote added). You first ask whether
the county treasurer can "refuse a request by an elected official with special fund accounts to
reconcile the checks and orders for payments from those special fund accounts.,,4 Request Letter




         'Subsection (g) explains that "Subsections (b-l) and (0(2) do not apply to" certain funds not relevant to this
request. See TEX. Loc. GOV'T CODE ANN. § 113.008(g) (West Supp. 2011).

         4For purposes of this opinion, we will define "special fund accounts" by tracking the Legislature's language in
subsection 113.008(b)(1), describing these accounts as "funds under the direct authority of an official other than the
county treasurer as provided by statute." [d. § 113 .008(b)(1).
The Honorable Anna Laura Cavazos Ramirez - Page 3                      (GA-0937)




at 1. You suggest that the newly-adopted subsection (f) "clearly identifies the elected official with
special fund accounts as the individual responsible for reconciling all balances and transactions."
[d. at 3. However, the plain language of subsection (b-l), which was also amended during the most
recent legislative session, allows an official with direct authority for funds to request that the county
treasurer be responsible for the reconciliation of the checks and orders for payment of those funds. 5
TEX. Loc. GOV'T CODE ANN. § 113.008(b-l) (West Supp. 2011). Subsection (b) further explains
that an official with a special fund account is authorized by subsection (b-l) to "delegate" the
responsibility for reconciliation to the county treasurer. [d. § 113.008(b). In instances where the
official fails to reconcile the accounts monthly, the official "shall transfer responsibility" to the
county treasurer. [d. § 113.008(b-l). While the Legislature did not expressly prohibit the county
treasurer from refusing a request by an official to reconcile special accounts, when read as a whole
the language of the statute implies that it is the county treasurer's duty to reconcile the special fund
accounts if an official is unable or unwilling to do SO.6 See Jones v. Fowler, 969 S.W.2d 429,432
(Tex. 1998) (explaining that "legislative intent should be determined from the entire act" and that
"we must read the statute as a whole"); cf TEX. Loc. GOV'T CODE ANN. § 113.001 (West 2008)
("The county treasurer, as chief custodian of county funds, shall ... account for all money belonging
to the county."). Therefore, a county treasurer may not refuse a request by an official to reconcile
the checks and orders for payments from special fund acc~unts under the authority of the official.

         Your second question asks, "[i]f the county treasurer can refuse the request of the elected
official, can the elected official refuse to reconcile the special fund accounts by simply not preparing
them?" Request Letter at 1. Because we conclude that a county treasurer may not refuse the request
of an official to reconcile the checks and orders for payments from special fund accounts, we do not
address your second question further.

         Y our third question asks whether an elected official's refusal to reconcile special fund
accounts can be designated a "failure" as described in the statute and, if so, what consequences exist
for the failure. [d. at 2. If an elected official has delegated responsibility for reconciliation of special
fund accounts to the county treasurer, as section 113.008(b-l) authorizes the elected official to do,
the reconciliation is no longer a duty belonging to the elected official but instead is a duty belonging
to the county treasurer. Thus, the elected official cannot be said to have failed to perform that duty.
You ask only about the consequences that may exist for elected officials who do not reconcile
accounts under their direct authority. Therefore, we do not address what consequences may exist
if a county treasurer fails to reconcile special fund accounts as required by section 113.008.



       5 Act of May 19,2011, 82d Leg., R.S., ch. 606, § 7, 2011 Tex. Gen. Laws 1465, 1466-67 (codified at TEx. Loc.

GOV'T CODE ANN. § 113.008).

          6In fact, subsection (b) requires the county depository to provide statements of all bank activity and
documentation of the accounts only if "the official has not delegated the responsibility for reconciliation under
Subsection (b-l)." TEX. LOc. GOV'T CODE ANN. § 113.008(b)(2) (West Supp. 2011). If an official has delegated
responsibility for reconciliation, the only person receiving bank statements from the depository would be the county
treasurer, making it impossible for the official to perform a reconciliation as required by subsection (f).
The Honorable Anna Laura Cavazos Ramirez - Page 4            (GA-0937)




                                      SUMMARY

                      Pursuant to Local Government Code section 113.008, a
              county treasurer must reconcile the checks and orders for payment
              payable from funds that are under the direct authority of other county
              officials if those officials are unable or unwilling to perform the
              reconciliation themselves.

                                             Very truly yours,




DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee
