                           AWEWIN.      TEXAR         W3Tll




                                  December      18, 1973


The Honorable    George   N. Rodriguez,         Jr.           Opinion   No.   H- 183
County Attorney,    El Paso County
Room 201, City-County      Building                           Re:   The duties    of the county
El Paso,  Texas 79901                                               auditor

Dear   Mr.   Rodriguez:

       You have asked our opinion        on five queations  which relate generally
to the duties and responsibilities       of the County Auditor.   Your first question
is:

                      “Does the County Auditor    still have discretionary
              authority   to prescribe  deposit and disbursing    procedures
              for all County monies to be placed in a County depository
              under Article    1656a as stated in Attorney   General’s
              Opinion No. WW-86 of April       5, 19577 ”

       Article 1656a, Vernon’s       Texas Civil Statutes,   as originally  enacted
by Acts of the 43rd Legislature,       Regular  Session,   Chapter   98, p. 217, pro-
vided in part:

                       “The County Auditor         in counties having a population
              of one hundred ninety thousand (190,000) or more accord-
              ing to the last preceding         or any future Federal      Census shall
              prescribe      the system of accounting         for the county.   . . ,
              Should the County Auditor           deem it to be to the best interest
              of the county or deem it necessary             in order that the provi-
              sions of this law may be better enforced.              . . , he shall have
              the right to prescribe        that all of the fees and moneys herein
               referred    to shall be turned over to the County 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 interest       for the benefit of the county,     . . . . ”




                                         p. 843
The Honorable          George    N.   Rodriguez,     page   2 (H-183)




      Article        1656a was amended        by the Acts     of the 44th Legislature,
Regular     Session,      Chapter     122, p. 330,     to read   in part:

                       “All of the fees,   commissions,      funds, and moneys
                herein referred    to shall be turned over to the County
                Treasurer    by such officer   as collected,    and such money
                shall be deposited    in the county depository.     . . . ”

       Attorney   General    Opinion WW-86     (1957) held that the provisions        of
the amendatory     act limiting   the county auditor’s    discretion   regarding     the
deposit of funds in the county treasury       were void as they ware outside the
scope of the bill’s   caption.    See Texas Constitution,      Article   3, $ 35. We
have found no cases or subsequent        opinions   reaching    a contrary   result.

      Article  1709a, V. T. C. S.,           enacted    in 1971, refers  to the duties of
the county auditor under Article             1656a.     Section 2(a) of Article  1709a pro-
vides in part:

                        “All fees,  commissions,      funds and moneys
                belonging    to the county shall be turned over to the
                County Treasurer       by the officer   who collected  them,
                in the manner prescribed        in Chapter 98, Acts of the
                43rd Legislature,      1933, as amended     (Article  1656a,
                Vernon’s      Texas  Civil Statutes).   ”

          Section     5 of Article    1709a provides:

                            “All existing    laws pertaining   to the duties and
                    responsibilities     of the County Auditors     of the State
                    of Texas shall in no way be affected         or changed by this
                    law.    Reference    to various   articles  mentioned   herein
                    pertaining     to CounlyAuditors    is intended for the pur-
                    pose of clarification      only and for no other reason. ”

       Although  $ Z(a), standing alone,      arguably   could support a contention
that the amendment      to the original  Article   1656a was incorporated       by refer-
ence in Article  1709a, 5 5 dispels     such a notion.      It is our conclusion   that
the county auditor in the counties      affected   by Article    1656a has some discre-




                                              p. 844
The Honorable     George   N.    Rodriguez,   page   3 (H-183)




tionary   authority  in prescribing     procedures    for the deposit of money in’
the county depository.     His discretion      is, of course,  limited by the Con-
stitution and other statutes,     e.g.,   Articles   1656~ and 1657, V. T. C. S.

      Your   second   question    is:

                      “Is it necessary     for the Tax Assessor-Collector,
             Sheriff,    District   Clerk,    County Clerk, ‘who collect
             monies in their official        capacities  to secure    a Deposit
             Warrant      in accordance     with Article   1657 and daily turn
             over such monies to the County Treasurer               to physically
             deposit such sums in a County Depository              in an account
             labeled in the office holder’s         name? ”

      Attorney    General Opinion M-167       (1967) involved     the deposit   of funds
by the County    Tax Assessor-Collector.         It indicated    that:

                      “[I]t is apparent   from reading all of these statutes,
             [Articles     7295, 7249a, 2549 and 25541 which are in para
             materia,      that the Legislature   intended that tax collections
             be placed on deposit at least on a weekly basis to be avail-
             able for the County Treasurer         to pay such bills as may be
             presented.       Both the county depository      and the tax collector
             [are] required       to make monthly reports       to the Commissioners
             Court.       The language in Art. 2549 can only be reasonably          con-
             strued as meaning as soon as possible             and not less than weekly,
             and in contemplation       of the tax collector’s     monthly report. ”

On Monday of each week the tax assessor-collector        must transfer      90 per cent
of all county tax funds collected  during the previous   week to the account of the
County Treasurer.      He can be required   to deposit funds to the treasurer       on a
more frequent basis by the order of the commissioners         court,   Article   7295,
V. T. C. S., the county judge, ibid.,   or the county auditor.    Article     1656a, V.T.CX

       The sheriff,   district   clerk and county clerk must deposit funds under
procedures   established     by the county auditor.    Article  165~6a, V. T. C. S. They
also are required    to transfer     county funds in their possession   to the account of




                                        p. 845
The Honorable        George      N.   Rodriguez,       page   4 (H-183)




the county treasurer     as directed by the county judge or commissioners
court.    Article  7295, V. T. C. S.  Trust funds and cash bail bonds receive
different   treatment  and are discussed   in relation to your third and fifth
questions.

        When funds are transferred     to the account of the county treasurer,
the deposit must be on a deposit warrant.         Article  1657, V. T. C. S. If
the officer   deposits   money in the county depository     before transferring    the
county funds to the county treasurer,       e. g., Article  7250, V. T. C. S., the
requirements     of Article  1657 do not apply to the initial deposit.     It will be
necessary    to comply with the article   when funds are transferred        to the
treasurer’s    account.

       Your   third       question    is:

                         “What is the definition       of a ‘Trust Fund’ as men-
                 tioned   in Article    2558A?     Are such collections     as ‘Civil
                 Court   Deposits’,      Probate   Court Deposits    and ‘Court
                 Ordered      Child Support payments’ defined as a ‘Trust
                 fund’?     If such collections     are not Trust Funds as pre-
                 scribed     in Article   2558A, is it mandatory      that the County
                 Auditor     countersign     Warrants    or checks disbursing     these
                 funds to their legal owners? ”

       A trust is an equitable      obligation    under which the trustee is required
to deal with the trust    property    for the benefit of the beneficiaries      who have
a vested interest   in the trust    funds.      57 Tex. Jur. 2d Trusts  5 1 (1964).  Any
funds fitting this definition    are trust     funds and, if in the possession    of the
county or district    clerk,   may be deposited        in the county depository   for trust
funds.

        Article    2558a, V. T. C. S., is the statute    which deals generally     with county
depositories      for trust funds.   Portions  of Article    2558a are unconstitutional.
Sellers   v. Harris     County,   483 S. W. 2d 242 (Tex.     1972); however,    only sections
4a and 4b, which are not in issue in this opinion,          were affected    by the Sellers
decision.      Attorney   General   Opinion M-1198 (1972).

       Section     4 of that statute        provides    in part:




                                              p. 846
The Honorable        George       N. Rodriguez,   page   5 (H-183)




                          “As soon as said depository          has qualified   as
                 provided     by law and has been approved           by the Com-
                 missioners       Court,    said Court shall make and enter an
                 order upon the minutes,           designating    such banking cor-
                 poration,     association,      or individual   banker as County
                 Depository      for Trust Funds until the designation          and
                 qualification     of a successor,      and thereupon it shall be
                 the duty of the County and Districts            Clerks   of such
                 county to deposit all Trust Funds in their possession
                 with said depository         in the manner hereinafter       provided
                 . . . . 1,

       Section     11 provides:

                        “Any County or District    Clerk having the custody
                 by law of any money that may have been deposited         in
                 court to abide the result of any legal proceeding,      which
                 amount is to be in his possession     for ,a period longer than
                 three (3) days, shall deposit the same in the county depos-
                 itory for Trust Funds,    if there be such a depository.      The
                 funds deposited   by the Clerk shall be carried     as a Trust
                 Fund account in the name of the Clerk making the deposit,
                 and same shall be subject to withdrawal       by the Clerk under
                 the conditions  set out in the succeeding,paragraph      of this
                 Act. ”

         Article    2558a applies only to those trust funds in the possession          of the
district    or county clerk.       Money which is held by other officers,        even though
the money constitutes         a trust   fund, is not within the purview    of this article;
however,       insofar  as county and district      clerks are concerned,     the Act applies
to all trust     funds in their possession.       It is our conclusion  that $4 requires
county and district       clerks    to deposit all trust funds in their possession,       except
as provided       in $11, in the County Depository        for Trust Funds.

       Section     11 requires   the deposit of money “deposited    in court to abide the
result of any      legal proceeding”    only when the money is to be in the possession
of the district      or county clerk for a period exceeding    three days.    We believe




                                             p. 847
The Honorable      George    N.   Rodriguez,    page   6 (H-183)




most, if not all, trust  funds in the possession    of the district or county clerk
will have been deposited    in court “to abide ” the result of a legal proceeding.

       Abide has several       definitions.       The Oxford English      Dictionary    lists
no fewer than eighteen       separate       meanings   for the word,     1 Oxford English
Dictfonary     18 (1961).     For    our purposes      two will suffice.     Money deposited
“to abide the result of any legal proceeding”              may mean money deposited           to
satisfy a judgment,                                          50 A. 2d 36 (Pa. Super.       1946) ;
State v. Swanson,      256 N. W. 872 (Neb. 1934); Cantor v. Sachs, 162 A.73 (Del.
Ch. 1932); State v. Gregory,          216 N. W. 17 (Iowa 1927); Getz v. Johnston,             125
A.689 (My.App.       1924); Jackson v. State, 1 P. 317 (Kan. 1883); see Wilson                  v.
State,   7 Tex. Ct.App.     38 (1879).       It may also mean money deposited          to await
the decision    of the court,     Lanham v. Dies,         98 S. W. 897 (Tex. Civ.App.         1906,
no writ);   Groesbeck     Cotton Oil Gin & Compress            Co. v. Oliver,     97 S. W, IO92
(Tex. Civ.App.      1906, error     ref’d);    McGarry    v. State, 14 P. 491 (Kan. 1887).
Money paid into the registry         of the court in interpleader        cases is the best
example    of this latter definition        of abide,  e.g , Sellers v, Harris     County, *.

       We believe     that any money deposited      in court to satisfy the result of a
legal proceeding      or to await the result of a legal proceeding     falls within the
sc,ope of $11. If    that money is in the possession      of the county or district  clerk
and if it is to be   in his possession   for more than three days, it must be depos-
ited in the county     depository  for trust funds.

        You specifically    ask whether    “civil  court deposits,   probate court depos-
its and court ordered      child support payments”       are trust funds for the purposes
of Article   2558a.     We believe  most,    if not all, civil court  deposits and probate
court   deposits  would be classified     as trust funds, but the terms are too general
to permit   a precise    answer for all eventualities.

         Court    ordered   child support payments    also would be encompessed in the
definition     of trust funds if paid through an intermediary.         A court has broad
discretion      in determining    the manner in which child support payments        are to
be made.        Acts 1973, 63rd Leg.,     ch. 543, p. 1411, at 1424. In counties with a
population      between 225,000 and 390,000 (the 1970 population         of El Paso County
was 359,291),        the Juvenile   Board may require    the Probation    Officer to receive
and disburse       any money required     to be paid into court for the maintenance       of a
minor.      Art,    5142b, $ 13. V. T. C.S.




                                         p. 848
The Honorable       George     N. Rodriguez,         page   7 (H-183)




       Even though court ordered      child support payments       may be trust funds,
they do not fall within the provisions     of Article    2558a unless they are in the
possession   of the county or district    clerk.    If they are in the possession   of
the district or county clerk they need not be deposited         in the county deposi-
tory for trust funds unless they are in his possession         for more than three days.

       If funds are in the possession    of the county or district  clerk in a county
with a population   of 190,000 or more and are deposited      in the county deposi-
tory for trust funds, they may not be disbursed       without the countersignature
of the county auditor.    Article  1656b.

        Your   fourth   question     is:

                         “If the Tax Assessor-Collector         collects    ad-
                valorem      tax monies for the State,      County, Hospital
                District,     School Districts    and other such agencies,
                will he, not the County Treasurer           deposit   such funds
                himself     in a County Depository      in an account in his
                name?      Is it mandatory     for the County Auditor       to
                countersign      warrants   or checks disbursing        the
                monies to the outlined agencies?          ”

          In addition    to collecting    taxes for the state and county,                a county tax
assessor-collector          may collect    taxes for many other governmental                     bodies.
These include independent            school districts      ($23. 94, Vernon’s          Texas Education
Code), municipal         school districts      (g 24.07,     Vernon’s       Texas Education         Code),
rural fire protection        districts   (Art.    2351a-6, V. T. C. S.),           county hospital
districts    (Art. 449n, V. T. C. S. ), mosquito            control     districts     (Art.    4477-2,
V. T. C. S.), water control          and improvement          districts     (§ 51. 595, Vernon’s         Texas
Water Code),        water control and preservation             districts      (Art.    7873, V. T. C. S.),
drainage districts        (5 56.073,    Vernon’s      Texas Water Code),             levee improvement
districts’($    57; 252, Ve’rnon’s      Texas Water Code),’ water improvement                       districts,
navigation     districts    and incorporated       cities,    towns or villages,            (Art. 1042b, V..T.CS).

       The tax assessor-collector   is required  under Article   2549(a),                      V. T. C. S.,
to deposit these funds in the county depository.    That Article   reads                      in part:




                                            p. 849
The Honorable       George    N.   Rodriguez,     page   8 (H-183)




                        “It shall also be the duty of the tax collector
                of such county to deposit all taxes collected             by him,
                or under his authority,        for the State and such county
                and its various     districts    and other municipal        sub-
                divisions,     in such depository       or depositories,      as
                soon as collected,       pending the preparation         of his
                report    of such collection     and settlement      thereon     . . . .
                All money collected        or held by any district,        county or
                precinct    officer  in such county,       or the officers     of any
                defined district     or subdivision      in such county,      including
                the funds of any municipal          or quasi-municipal        subdivi-
                sion or corporation        which has the power to select its
                own depository,       but has not done so, shall be governed
                by this law, and shall be deposited           in accordance       with
                its requirements,       and shall be considered         in fixing the
                bond of such depository,          and shall be protected        by such
                bond; and all warrants,         checks,    and vouchers       evidenc-
                ing such funds shall be subject to audit and countersig-
                nature as now or hereafter           provided   by law. ”

      Article     1656a provides      in part::

                        “The County Auditor        in counties having a population
                of one hundred ninety thousand (190,000) or more accord-
                ing to the last preceding       or any future Federal         Census
                shall prescribe      the system of accounting       for the county
                and the forms to be used by the District            Clerk,     the Dis-
                trict Attorney     and all county and precinct        officers    and by
                all persons    in the collection     and disbursement        of county
                revenues,    funds, fees,      and all other moneys col.lected           in
                an official  capacity     whether    belonging   to the county,      its
                subdivisions     or precincts,     or to, or for the use or benefit
                of, any person,       firm,   or corporation;     he shall prescribe
                the mode and manner in which the District               Clerk,    the Dis-
                trict Attorney     and all county and precinct       officers     shall
                keep their accounts,        and he shall have the power to require
                all officers   to furnish monthly,       annual,   or other reports
                under oath of all moneys,         taxes,   or fees of every nature




                                             p. 850
The Honorable          George      N. Rodriguez,   page   9 (H-183)




               received,    disbursed,    or remaining    on hand; and in
               connection    with such reports     he shall have the right
               to count the cash on hand with such officer,         or to
               verify   the amount on deposit in the bank in which such
               officer   may have placed the same for safekeeping.           He
               shall have the power to adopt and enforce          such regula-
               tions not inconsistent     with the Constitution    and laws as
               he may deem essential        to the speedy and proper     collec-
               tion and checking     of, and accounting    for,  the revenues
               and other funds and fees belonging        to the county or to
               any person,     firm,   or corporation   for whom any of
               said officers     may have made collections,       or for whose
               use or benefit they may have received          or may hold such
               funds. ”

After a discussion   of the deposit of funds to the county treasurer,          the statute
says, “The Treasurer      and the depository   shall make no payment          unless such
check is countersigned     by the County Auditor.   ”

       Except as otherwise     provided,   e.g.,    Art. 1661, V. T.~C. S., with refer-
ence to warrants    for jury service,    the auditor is required      to countersign
checks drawn against the county treasury:          however,   it is possible   the funds
in question will be in a non-treasury      account in the county depository.         If
that is the case, &e county auditor may require          countersignature     of checks
under his authority    to prescribe   a system of accounting       to be used by all
county officers,   but it is not mandatory      that he do so.

        The auditor is required      to countersign    checks drawn against the county
treasury;   however,    it is possible   the funds in question     will be in a non-treasury
account in the county depository.         If that is the case,    the county auditor may
require   countersignature     of checks under his authority        to prescribe  a system
of accounting    to be used by all county officers,       but it is not mandatory    that he
do so.

        Your   fifth    question     states:




                                               p. 851
The Honorable      George    N.   Rodriguez,    page   10 (H-183)




                     “When the Sheriff collects      cash bail bonds he
              places such funds in a bank account in a county deposi-
              tory in his own name and when the case is settled he
              is Court directed     to disburse   such funds to the legal
              owner.     Is it mandatory    for the County Auditor   to
              countersign     all warrants   or checks disbursing   these
              funds? ”

       Attorney    General   Opinion     C-740 (1966) discusses    in detail the collection
of cash bonds     by peace   officers.     It is the conclusion of that opinion that:

              “[t]he officer    receiving      the cash, if he is not the custodian
              of the funds of the court,         should deposit the sum of money
              received    with the custodian.         We are of the opinion that
              there is no necessity         or authority    for a court to appoint
              a sheriff   as custodian       of the funds since the clerk of the
              court or the justice       of the peace,     as the case may be, is
              already    charged with that duty.          The sheriff   or other peace
              officer   accepting    the cash bond should simply receipt~the
              bond to the defendant and then turn the money over to the
              clerk of the court or the justice          of the peace,   whichever   is
              the appropriate      officer.      We note however      that if the Court
              in which the cash bond is given does not have jurisdiction
              to try the defendant,        the cash bond should be transferred          to
              the clerk of the court that has such jurisdiction.             ”

        If the bond is deposited   with the district   or county clerk the provisions
of Articles    2558a and 1656b would apply.       The countersignature     of the county
auditor would be required      before the money could be refunded.         If a justice  of
the peace is the custodian     of the money,    he will be bound by the provisions       of
Article    2290, V. T. C. S. Of course,     the auditor may prescribe      accounting
procedures     which would require     his countersignature    in this instance   also.

                                         SUMMARY

                      1.. The county auditor has discretion   to prescribe
              the manner and time of deposits     to the county treasurer
              by officers   who collect county funds.




                                           p. 852
The Honorable   George        N.   Rodriguez,         page   I1 (H-183)




                 2. County officers   must secure deposit    warrants
            when depositing funds to the credit of the county treasurer,

                   3. Court ordered    child support payments,  if paid
            through the county or district   clerk, are subject to the
            requirements   of Articles  2558a and 1656b, V. T. C. S.

                     4.   The county auditor is required      to countersign
            checks against the county treasury,          except those checks
            issued for jury     service.    Although he may establish       account-
            ing procedures      requiring   his countersignature     on non-
            treasury     checks distributing    tax money collected     by the
            county tax assessor-collector         for other governmental
            bodies,     he is not required   to do so.

                      5.      A peace officer     receiving       a cash bail bond should
            deliver        it to the custodian     of funds      of the appropriate court.

                                                      Very   truly   yours,




                                                      Attorney    General     of Texas




DAVID M. KENDALL,              Chairman
Opinion Committee




                                          p.    853
