   OFP,CE
        OFTHE
            ATTORNEY
                 GENERAL.
                      Sr~rrOFTEXAS
   JOHN CORNYN




                                        October 28, 1999



The Honorable Bill Moore                         Opinion No. JC-013.5
Johnson County Attorney
2 North Main Street                              Re: Whether a county tax assessor-collector     may
Clebume, Texas 7603 1                            use interest from the Motor Vehicle Inventory    Tax
                                                 Fund to supplement the salaries of certain      full-
                                                 time employees of the assessor-collector,        and
                                                 related questions (RQ-0079-JC)


Dear Mr. Moore:

         You ask three questions about the Motor Vehicle Inventory Tax Fund established under
section 23.122 of the Tax Code. TEX. TAX CODEANN. 5 23.122(b) (Vernon Supp. 1999); see Letter
from Honorable Bill Moore, Johnson County Attorney, to Elizabeth Robinson, Chair, Opinion
Committee,     Attorney General’s Office (June 22, 1999) (on tile with Opinion Committee)
[hereinafter “Request Letter”]. First, you ask whether the county tax assessor-collector may use
interest on the fund to supplement the salaries of full-time employees of the assessor-collector’s
office who administer the prepayment procedure created by section 23.122. See Request Letter,
supra; Brief from Honorable Bill Moore, Johnson County Attorney, to Elizabeth Robinson, Chair,
Opinion Committee, Attorney General’s Office (June 22,1999) [hereinafter “Brief ‘I. To the extent
you ask about a prospective, not a retroactive, salary supplement, the assessor-collector may do so
if the assessor-collector determines that salary supplements are a legitimate cost of administering
the prepayment procedure.

         Second, you ask whether the county auditor may audit the Motor Vehicle Inventory Tax
Fund and interest that accrues on the fund. See Request Letter, supra. The Motor Vehicle Inventory
Tax Fund and interest on that fund are subject to audit by the county auditor. See TEX. LOC. GOV’T
CODEANN. 4 115.0035 (Vernon 1999); Tex. Att’y Gen. Op. No. DM-398 (1996) at 4. Third, you
ask whether equipment purchased with interest generated on the Motor Vehicle Inventory Tax Fund
is the property of the county or property of the tax assessor-collector.  See Request Letter, supra.
Regardless of the legal owner’s identity, the equipment is under the sole control of the latter.

         Section 23.122 of the Tax Code requires a motor-vehicle dealer to prepay property taxes
levied against the dealer’s motor-vehicle inventory. TEX. TAX CODEANN. $ 23.122(b) (Vernon
Supp. 1999). Each month, a motor-vehicle dealer must deposit with the county tax assessor-
collector in the county in which the inventory is located a portion of the property tax the dealer is
The Honorable   Bill Moore - Page 2               (JC-0135)




expected to owe for the year. Id. The tax assessor-collector      must place the prepaid taxes in an
escrow account to the dealer’s (or “owner’s”) credit:

                     (b)    . The money shall be deposited by the collector in or
                otherwise credited by the collector to the owner’s escrow account for
                prepayment of property taxes          An escrow account required by
                this section is used to pay property taxes levied against the dealer’s
                motor vehicle inventory, and the owner shall fund the escrow account
                as provided by this subsection.

                     (c) The collector shall maintain the escrow account for each
                owner in the county depository. .       The collector shall retain any
                interest generated by the escrow account to defray the cost of
                administration   of the prepayment procedure established by this
                section. Interest generated by an escrow account created as provided
                by this section is the sole property of the collector, and that interest
                may be used by no entity other than the collector. Interest generated
                by an escrow account may not be used to reduce or otherwise affect
                the annual appropriation to the collector that would otherwise be
                made.

Id. 5 23.122(b), (c). The collector disburses funds in the escrow account to “relevant taxing units,”
i.e., taxing units “authorized by law to levy property taxes against a dealer’s motor vehicle
inventory,” id. 5 23.122(a)(7), in proportion to the amount of taxes levied, id. 5 23.122(i). The
dealer may not withdraw funds from the escrow account. Id. 5 23.122(d). See generally Tex. Att’y
Gen. LO-98-085, at l-2 (summarizing motor vehicle inventory tax scheme).

        Interest generated by the Motor Vehicle Inventory Tax Fund escrow account is the “sole
property” of the tax assessor-collector and is not subject to the control of the commissioners court.
Tex. Any Gen. Op. No. DM-398 (1996) at 2; accord Tex. Att’y Gen. LO-98-085, at 5-6. It may
be used only by the assessor-collector.   See TEX. TAX CODEANN. 5 23.122(c) (Vernon Supp. 1999).
The tax assessor-collector’s   discretion with respect to the use of the fund, however, is statutorily
limited to defraying the costs of administering the tax prepayment procedure. See id. 5 23.122(c).
Whether a particular expenditure is a legitimate “cost of administration of the prepayment
procedure” and is therefore a permissible use ofthe interest is a question of fact. See Tex. Att’y Gen.
Op. No. DM-398 (1996) at 3-4. “What constitutes a legitimate cost of administration of the
prepayment program is a matter of fact upon which this office cannot opine.” Id. at 3; accord Tex.
Att’y Gen. LO-98-085, at 6.

        We conclude in response to your first question that interest generated on the Motor Vehicle
Inventory Tax Fund may be used to supplement the salaries of the assessor-collector’s      full-time
employees who administer the prepayment program if the assessor-collector determines that salary
supplements are a legitimate cost of administration under section 23.122(c). The interest may not
The Honorable Bill Moore     - Page 3           (X-0135)




be used for general office expenses of the assessor-collector      that are unrelated to the costs of
administering the prepayment program. Tex. Att’y Gen. Op. No. DM-398 (1996) at 4; accord Tex.
Att’y Gen. LO-98-085, at 6. But the salaries of those personnel who manage or administer the
prepayment program probably are related to the costs of administering the prepayment program. See
I OXFORDENGLISH     DICTIONARY    162-63 (2d ed. 1989) (defining “administer” and “administration”);
BLACK’S LAW DICTIONARY        41 (5th ed. 1979) (same). Moreover, while we find nothing expressly
authorizing an assessor-collector to allocate salary supplements to assistants who administer fhe
prepayment program, see TEX. LOC. GOV’T CODEANN. @@15 1.OO1, ,901 (Vernon 1999) (providing
for appointment of deputies, assistants, clerks, and secretarial personnel of collector-assessor), we
find nothing forbidding, as a matter of law, the use of Motor Vehicle Inventory Tax Fund interest
for salary supplements. The assessor-collector’s determination is subject to judicial review.

         As you point out, see Brief, supra, at 2, a public employee may not be paid bonuses or
supplements for work already performed. Article III, section 53 of the Texas Constitution prohibits
paying extra compensation to a public officer, agent, servant, or contractor for services after they
have been rendered. TEX. CONST.art. III, 8 53; see, e.g., Do&hit v. Ecfor County, 740 S.W.2d 16,
18 (Tex. App.-El Paso 1987, writ denied) (stating that article III, section 53 does not inhibit award
of back pay to which employee is entitled but which employee has not received); Tex. Att’y Gen.
Op. Nos. JC-26 (1999) at 1 (stating that commissioners court may not increase longevity pay
retroactively); DM-129 (1992) at 3-4 (stating that benefits of sick-leave pool may be available
prospectively only). The salary supplements may, therefore, be awarded only for work related to
the administration of the prepayment procedure that has not yet been performed.

         With regard to your second question, a county auditor is authorized and required to audit the
Motor Vehicle Inventory Tax Fund, as well as interest earned on the prepaid taxes. Section
115.001(l) of the Local Government Code provides a county auditor with “continual access” to
accounting books and related materials of any officer. See TEX. Lot. GOV’T CODEANN. 4 115.001
(Vernon 1999). Section 115.002(b) requires a county auditor, at least four times each year,
to examine the county tax assessor-collector’s books to verify their correctness. Id. 5 115.002(b).
Section 115.0035 further requires a county auditor to examine, at least annually, public funds
subject to the control of a county official. Id. $ 115.0035. Thus, the county auditor has express
statutory authority to examine the correctness ofthe collector’s books. See also Tex. Att’y Gen. Op.
No. DM-398 (1996) at 4 (stating that county auditor may audit interest).

         Third, you ask whether the equipment purchased with interest on the Motor Vehicle
Inventory Tax Fund becomes the property of the county or of the county collector. Normally,
interest follows principal, see Phillips v. Washington Legal Found., 524 U.S. 156, 165, (1998);
Sellers Y. Harris County, 483 S.W.2d 242, 243 (Tex. 1972); Tex. An’y Gen. Op. No. MW-481
(1982) at 1, unless the two are lawfully separated,seeLawson Y. Baker, 220 S.W.260,272 (Tex. Civ.
App.-Austin 1920, writ refd); Tex. Att’y Gen. Op. No. JC-62 (1999) at 1.

        Section 23.122 of the Tax Code appears to separate the interest from the principal, which
belongs, we presume, to the relevant taxing units. See TEX. TAX CODEANN. 5 23.122(a)(7) (Vernon
The Honorable Bill Moore     - Page 4             (X-0135)




Supp. 1999) (defining “relevant taxing unit”). Section 23.122(c) directs that the interest is the
assessor-collector’s “sole property,” which “may be used by no entity other than the collector.” Id.
5 23.122(c). The fact that the interest is the “sole property” of the assessor-collector means that the
assessor-collector, in his or her offtcial capacity, has sole control ofthemoney, regardless ofwhether
the county or the tax assessor-collector legally owns the money. See Tex. Att’y Gen. Op. No. DM-
398 (1996) at 2; Tex. Att’y Gen. LO-98-085, at 5. Any equipment purchased with the interest is
solely in the control of the office of the assessor-collector, and not in the control of the county as a
whole.

                                         SUMMARY


                         A tax assessor-collector may use interest that accrues on the
                Motor Vehicle Inventory Tax Fund established under section 23.122
                of the Tax Code to supplement the salaries ofthe full-time employees
                who administer the prepayment program if the assessor-collector
                determines that salary supplements are a legitimate cost of adminis-
                tering the prepayment program. A county auditor must audit the
                Motor Vehicle Inventory Tax Fund, as well as interest earned on that
                fund. Any equipment that a tax assessor-collector purchases with
                interest earned on the Motor Vehicle Inventory Tax Fund is under the
                sole control of the office of the assessor-collector.




                                                 Attorney General of Texas



 ANDY TAYLOR
 First Assistant Attorney General

 CLARK KENT ERVIN
 Deputy Attorney General - General Counsel

 ELIZABETH ROBINSON
 Chair, Opinion Committee

 Kymberly K. Oltrogge
 Assistant Attorney General - Opinion Committee
