                                        The Attorney        General of Texas
                                                          way 2. 1984
    JIM MATTOX
    AttorneyGeneral


    Supreme Court Buildin            Honorable Bob Bullock                     opinion No. JM-153
    P. 0. Box 12546                  Comptroller of Public Accounts
    Austin, TX. 76711. 2546
                                     L.B.J. Building                           Re: Whether a county govern-
    512/4752501
    Telex 9101674-1367
                                     Austin, Texas   78774                     ment is liable for court costs
    Telecopier  512/475-0266                                                   collected on behalf of the
                                                                               state, and related questions
    714 Jackson, Suite 700
                                     Dear Mr. Bullock:
    Dallas, TX. 75202.4506
    2141742.6944
                                          You ask several questions relating to court costs collected on
                                     behalf of the state under the statutes that create the Criminal
    4624 Alberta   Ave., Suite 160   Justice Planning Fund, the Law Enforcement Officer Standards and
    El Paso. TX. 799052793           Education Fund, and the Compensation of Victims of Crime Fund.
+X5/533.3464

                                           Each of the statutes that creates the enumerated funds directs
    1Wl   Texas, Suite 700           the court, in addition to other taxable court costs, to tax the
    Houston, TX. 77002-3111          defendant specified costs of court on conviction of traffic or
    7131223-5886                     criminal violations, which costs are collected in the same manner as
                                     other fines or costs. Also, the statutes direct the officer who
    606 Broadway, Suite 312
                                     collects the costs that are applicable to each court to keep separate
    Lubbock. TX. 79401.3479          records of those funds and to deposit them in the county or municipal
    6OW747-5236                      treasury, as the case may be. The custodians of those treasuries
                                     shall keep records of the funds collected under each statute and
    4309 N. Tenth. Suite B
                                     quarterly remit to the comptroller of public accounts the funds so
    McAllen. TX. 76501-1665          collected, less ten percent which the custodians retain as a service
    5121662.4547                     fee for the collection. The statutes creating the Criminal Justice
                                     Planning Fund and the Law Enforcement Officer Standards and Education
                                     Fund expressly direct officers collecting court costs under those
    200 Main Plaza. Suite 400
    San Antonio. TX. 76205.2797
                                     statutes to file the reports required by articles 1001 and 1002. of
    51212254191                      the Code of Criminal Procedure. The funds collected under all three
                                     statutes are expressly subject to audit by the comptroller. See Code
                                     Grim.   Proc. art. 1083; V.T.C.S. art. 4413(29aa), 19B; V.T.Cx   art.
    An Equal Opportunity/            8309-l. §14.
    Atfirmative Action Employe.

                                          You advise us that such audits by your office have disclosed
                                     instances where justices of the peace failed to deposit in the county
                                     treasury the court costs they collected on behalf of the state under
                                     those statutes. Your first question is whether a county government is
-                                    liable to the state for court costs actually collected within the
                                     scope of official duties by a county officer charged by law with the
                                     collection of state money under article 1004 of the Code of Criminal




                                                                      p. 667
Aonorable Bob Bullock - Page 2 (JM-153)




Procedure if the   funds are not deposited by the officer in the county
treasury.   We     believe that a county government under these
circumstances is   not liable to the state for the court costs that were
not deposited in   the county treasury.

     Article IX. section 1. of the Texas Constitution gives the
legislature “power to create counties for the convenience of the
people” with stated guidelines.      Article XI. section 1 of the
constitution declares that the several counties of this state are
recognized as legal subdivisions of the state. The Texas Supreme
Court has described the relation which the counties of the state bear
to the sovereignty of the state as mere political subdivisions of the
state created for the convenience of the people, for the purpose of
local government, and for the exercise of essentially state powers and
has stated that counties exist as agencies of the state for the
effective discharge through local officers of the governmental
obligations of the state. State government cannot be all conducted by
purely state officials located at the capitol. The powers of the
counties are duties imposed on them by the state. See Bexar County v.
Linden, 220 S.W. 761 (Tex. 1920); Orndorff v. Stat7108     S.W.Zd 206,
209 (Tex. Civ. App. - El Paso 1937, writ ref’d).

     The statutes creating the funds in question direct a justice of
the peace, as an officer charged by law with collection of money in
the name or for the use of the state, to make the reports required
under articles 1001 and 1002 of the Code of Criminal Procedure, and to
keep separate records and deposit the funds in the county treasury.
Articles 1001, 1002, and 1004 of the Code of Criminal Procedure
provide the following:

          Article 1001.

             All officers charged by law with collecting
          money in the name or for the use of the State
          shall report in writing under oath to the
          respective district courts of their several
          counties, on the first day of each term, the
          amounts of money that have come to their hands
          since the last term of their respective courts
          aforesaid.

          Art. 1002.

             Such report shall state:

             1.    The amount collected.

             2.    When and from whom collected.




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Ronorable Bob Bullock - Page 3   (JM-153)




             3.   By virtue of what process collected.

             4.   The disposition that has been made of the
                  money.

             5.   If no money has been collected, the report
                  shall so state.

          . . . .

          Art. 1004.

             The officers charged by law with the collection
          of money, within the meaning of the three
          preceding articles. and who are required to make
          the reports therein mentioned, are: District snd
          county attorneys. clerks of the district and
          county courts, sheriffs, constables, and justices
          of the peace.

      Articles 1001 and 1002 expressly apply to a justice of the peace,
 and justices of the peace have been held to be county officers within
 the meaning of other statutes, such as a former penal code provision
 relatinn to the misaunlication of uublic funds bv countv officers.
-See Cruip v. State, 5'S.W. 182, 183 iTex. App. 1887).      s

     However, it is a well settled rule of the common law of this
state that a county is not liable for the tortious acts of its
officers in the performance of official acts unless such liability is
created by statute either by express words or by necessary
implication. See Harris County v. Gerhart, 283 S.W. 139, 140 (Tex.
1926); Wade v.?&kson   County, 547 S.W.2d 371, 373 (Tex. Civ. App. -
Corous Christ1 1977. writ ref'd n.r.e.1. We know of no statute which
expressly makes a county liable for the misapplication of funds by its
officers. We do not believe that it was the intent of the legislature
that the statutes discussed here, which impose duties on county
officers to tax, collect, report, deposit locally, and remit to the
comptroller the specified court costs on behalf of the state, would
impliedly render the counties liable for the neglect or wrongs of the
counties' officers in performing those duties. Article 6252-19b,
V.T.C.S., which is discussed later in this opinion, relates not to the
liability of county government itself but to payment of damages,
costs, and attorneys fees that are adjudged against a county officer.

     While we do not believe that a county is liable for negligence or
conversion by its officers, we also do not believe that a county is
immune from liability in a cause of action based on the conversion of
funds which the county government actually receives and appropriates
to its own benefit and which the state owns in whole or in part. -See




                                  p. 669
Honorable Bob Bullock - Page 4    (JM-153)




Dial v. Crosby County, 96 S.W.2d 534. 536 (Tex. Civ. App. - Amarillo
1936, no writ); Comanche County v. Burks, 166 S.W. 470. 472 (Tex. Civ.
APP. - Fort Worth 1914, writ ref'd); Boaz v. Ferrell, 152 S.W. 200.
202 (Tex. Civ. App. - Fort Worth 1912, no writ). In our opinion, the
fact that a justice of the peace converts to his own use funds that he
holds in trust for the state does not constitute conversion of such
funds by a county that does not participate in such misappropriation.
See Nueces County v. Nueces County Drainage District, 258 S.W. 208.
210 (Tex. Civ. App. - San Antonio 1924, no writ).

     In Attorney General Opinion M-1076 (1972). relating to the
responsibility of a county for court costs taxed pursuant to article
1083 for the Criminal Justice Planning Fund, this office expressed the
opinion that the stated purpose of the statute indicates a legislative
intent that those costs be paid by convicted defendants and not by the
counties. The question arose because court costs taxed for the
Criminal Justice Planning Fund were satisfied by service in jail.
Funds to pay the costs were not collected or deposited in the county
treasury. Under the statutes in question, the counties serve as
instrumentalities of the state to aid the state government in the
collection and transmittal of state funds. We find no indication in
the statutes that the legislature intended a county, or the taxpayers
of the state within a county, to be responsible out of county funds
for the court costs in question when the county does not receive the
costs from the      collecting officer or participate in their
misappropriation. We agree with the conclusion in Attorney General
Opinion M-1076 that, without such a statute, a county is not liable to
the state for such costs.

     Your second question is whether, if the comptroller establishes
by audit that funds are due the state, he may initiate collection
action against the individuals misappropriating the funds. We believe
the comptroller has a duty to take the same action to collect those
funds that he employs to collect the other debts and taxes owed the
state.

     The statutes directing the courts to tax to defendants the court
costs in question refer to those court costs as "costs due the state"
and provide for the collection and transmittal of those funds to the
comptroller for deposit in special funds in the state treasury. See
Code Grim. Proc. art. 1083, $5. The officers collecting the CO=
costs are subject to the provisions of articles 1001 and 1002 of the
Code of Criminal Procedure, which expressly apply to "officers charged
by law with collecting money in the name and for the use of the
state." We believe such costs are held in trust for the state by the
local officers collecting them and by the local treasuries in which
they are deposited prior to transmittal to the comptroller. We
conclude that articles 4344 and 4396. V.T.C.S., authorize the
comptroller to certify accounts of misappropriated court costs




                                 p. 670
Aonorable Bob Bullock - Page 5    (JM-153)




belonging to the state to the attorney general for    prosecution and
suit.

     Article 4344 provides, in pertinent part:

          Among other duties the Comptroller shall:



             8. Require all persons who have received and
          not accounted for any money belonging to the State
          to settle their accounts.

             . . . .

             10. Examine and settle the accounts of        all
          persons indebted to the State and certify        the
          amount or balance to the Treasurer, and direct   and
          superintend the collection of all moneys due     the
          State.

     Article 4396 instructs the attorney general to

          transmit to the proper district or county
          attorney, with such instructions as he may deem
          necessary, any certified account, bond or other
          demand which the Comptroller has delivered to him
          for prosecution and suit. (Emphasis added).

     Your third question asks whether a county, if it initiates action
on its own against a former justice of the peace and recovers money
representing the misapplied court costs due the state, must remit to
the comptroller the entire amount recovered or is entitled to offset
its own expenses incurred in filing suit. We believe that the county
may retain fees authorized by statute for the collection of state
funds by a county or district attorney.

     Articles 339 and 4400, V.T.C.S., provide, in pertinent part, the
following:

          Art. 339

             When it shall come to the knowledge of any
          district or county attorney that any officer in
          his district or county entrusted with          the
          collection or safe keeping of any public funds is
          in any manner whatsoever neglecting or abusing the
          trust confided in him, or in any way failing to
          discharge his duties under the law, he shall




                                 p. 671
Honorable Bob Bullock - Page 6   (Jx-153)




          institute such proceedings as are neceseary to
          compel the performance of such duties by such
          officer and to preserve and protect the public
          interests.

             Art. 4400

             [The attorney general] shall at least once a
          month inspect the accounts of the offices of the
          State Treasurer and the Comptroller, of all
          officers and persons charged with the collection
          or custody of funds of the State. Be shall
          proceed immediately to institute, or cause to be
          instituted, against any such officer or person who
          is in default or arrears, suit for the recovery of
          funds in his hands . . . .

     Those statutes, when considered in par1 materia, authorize either
the attorney general or a county or district attorney to represent the
state and prosecute an action in the name of the state for the
collection of state funds misappropriated by county officers. See
State v. Bratton, 192 S.W. 814 (Tex. Civ. App. 1917, writ ref’d). -

     All of the money taxed and collected as court costs under the
statutes creating the Criminal Justice Planning Fund. the Law
Enforcement Officer Standards and Education Fund, and the Victims of
Crime Fund belongs to the state except as otherwise provided by
statute. Each of the statutes creating those funds authorizes a city
or county to retain ten percent of the funds collected and deposited
in its treasury as a service fee for the collection. See Code Crim.
Proc. art. 1803, 57; V.T.C.S. arts. 4413(29as). S9B(f); 8309-1,
§14(e). Also, article 335, V.T.C.S., provides, in pertinent part that

          [wlhenever a district or county attorney has
          collected money for the State . . . he shall
          within thirty days after receiving the same, pay
          it into the treasury of the State . . . after
          deducting therefrom and retaining the commissions
          allowed him thereon by law.     Such district or
          county attorney shall be entitled to ten percent
          commissions on    the   first   thousand dollars
          collected by him in any one case for the
          State . . . from any individual or company, and
          five percent on all sums over one thousand
          dollars, to be retained out of the money when
          collected . . . .

Statutes which deal with the same general subject matter and have the
same general purpose are considered in par1 materia and must be




                                 p. 672
Honorable Bob Bullock - Page 7    (JM-153)




harmonized, if possible, and construed so as not to destroy the effect
of either. Lingner v. Haley, 277 S.W.2d 302. 306 (Tex. Civ. App. -
Amarillo 1954. writ dism’d).

     Accordingly, we believe that the statutes creating the funds
authorize a county to retain a service fee from funds collected and
deposited in its treasury without proceedings by a county or district
attorney to collect the court costs due the state under those
statutes. If a county or district attorney initiates action on his
own against a former justice of the peace and recovers funds
representing misapplied court costs due the state, article 335
authorizes the county or district attorney to retain the specified
commissions from the state’s funds when collected.

     Article XVI, section 61, of the Texas Constitution, provides that
all fees earned by a county officer shall be paid into the county
treasury for account to the proper fund except that, if an officer is
compensated wholly on a fee basis, the fees may be retained by the
officer or paid into the county treasury as the commissioners court
directs. All of the fees and commissions earned and collected by the
officials named in article 3912k. V.T.C.S., shall be paid into the
county treasury in accordance with the provisions of section 61,
article XVI, of the Texas Constitution. V.T.C.S. art. 3912k, SS. See
also V.T.C.S. art. 3912e. 15; Attorney General Opinions IN-584 (1982);
C-751 (1966).

     Your fourth question inquires whether a county judge, justice of
the peace, or the clerk of a district or county court is authorized to
waive payment of court costs required to be taxed under the three
statutes in question. We believe that the court costs must be taxed
by the court and collected as other fines and costs are collected.
See Code Grim. Proc. art. 1083, 95; V.T.C.S. arts. 4413(29aa), §9B(c);
8309-1, $14(c).

     The language of each of those statutes provides that the court
costs shall be taxed, shall be deposited in the city or county
treasury, as the case may be, and shall be remitted quarterly to the
comptroller, who shall deposit them in the respective special funds in
the state treasury. We believe those provisions are mandatory. The
term “shall” generally connotes a mandatory duty, but whether statutes
are permissive or mandatory is determined by the intent of the
legislature. See Jaynes v. Lee, 306 S.W.2d 182, 185 (Tex. Civ. App. -
Texarkana 1957,no writ); Moyer v. Kelley, 93 S.W.2d 502. 503 (Tex.
Civ. App. - San Antonio 1936, writ dism’d); Attorney General Opinion
MW-380 (1981). We find no evidence that the legislature intended the
language in question to be permissive authority to the named officers
to tax or collect the court costs, or to be authority to waive their
taxation or collection, except to the extent that the express language




                                 p. 673
Bonorable Bob Bullock - Page 8    (Ix-153)




of the statutes provides for collection in the same manner 8s other
fines or costs are collected in the case.

     The legislature has provided alternative means for collection of
fines and costs from defendsnts. The court may order a defendant to
pay the entire fine and costs at the time of the pronouncement of
sentence, order a defendant to pay the entire fine and costs at s
later date, or order a defendant to pay specified portions of the fine
and costs at designated intervals.        A convicted defendant may
discharge all or part of the court costs by service in jail. See Code
Grim. Proc. arts. 42.15; 43.03; 45.50; 45.52; Ex parte Tax         471
S.W.2d 404, 406 (Tex. Grim. App. 1971); Attorney General Opinion
M-1076 (1972). Article I, section 28, of the Texas Constitution
recites that "[nlo power of suspending laws in this State shall be
exercised except by the Legislature."

     Your fourth question also inquires whether a county is liable to
the state for costs which were not taxed or not collected. Our
discussion of your first question expressed the opinion that the
legislature intended convicted defendants, not the counties, to pay
for those court costs and that county governments are not liable to
the state for court costs that the county does not receive due to the
neglect or misconduct of county officers in performing the duties
imposed by the statutes in question.

     Your last question inquires whether the failure of a county
official to tax or collect court costs as required by the statutes in
question constitutes negligence within the meaning of section 2(a) of
article 6252-19b. V.T.C.S. Article 6252-19b applies only to damages
that "arise out of a cause of action for negligence, except s wilful
or wrongful act or omission or an act or omission constituting gross
negligence or for official misconduct." Whether the failure of a
county official to tax or collect court costs would create a cause of
action for negligence, and one that is not excepted by the statute
because the act or omission is wilful or wrongful or constitutes gross
negligence or official misconduct. involves fact questions which
cannot be answered in the abstract or in the opinion process.
However, if the question also is an inquiry as to whether article
6252-19b applies to a suit based on the failure of a county official
to tax or collect court costs for the state , we believe the statute is
not applicable to damages, court costs, and attorney fees awarded to
the state against a county official.

     Article 6252-19b. section 2(a) provides

          [al county, city, town, special purpose district,
          or any other political subdivision of the state
          may   pay actual damages, court costs, and
          attorney's fees adjudged against its employee, if




                                 p. 674
        Honorable Bob Bullock - Page 9    (JM-153)

    P




b
                  damages are based on au act or omission by the
                  employee in the course and scope of his or her
                  employment for such political subdivision and if
                  the damages arise out of a cause of action     for
                  negligence, except  a wilful  or  wrongful act  or
                  omission or an act or omission constituting gross
                  negligence or for official misconduct.

        A present or former county official is included in the definition of
        “employee” in section 1 of that statute.

             Article 6252-26, V.T.C.S., makes the state liable for payment of
        actual damages, court costs, and attorney fees adjudged against
        officers and employees of the state in certain cases.          Article
        6252-19b is a similar statute which was enacted subsequent to article
        6252-26 to extend to the political subdivisions of the state authority   .
        to pay actual damages, court costs, and attorneys fees adjudged
        against their officers and employees. See Bill Analysis to Rouse Bill
        NO.  1134, 66th Legislature, preparedfor      House Intergovernmental
        Affairs Committee, filed in Bill File to Rouse Bill No. 1135,
        Legislative Reference Library. The purpose of article 6252-26 is
        protection of state officials and employees from citizen suits for
        acts or omissions while they are acting for the state. Prior to that
        statute, certain officers and employees could not afford to subject
        themselves to the liability of civil law suits and could adequately
        protect themselves only by terminating their relationship with the
        state. See Bill Analyses to Senate Bill No. 704, 64th Legislature,
        and SenateBill No. 37, 65th Legislature, prepared for Rouse Judicial
        Affairs Committee; transcript of proceedings of the Senate State
        Affairs Committee on January 26, 1977.

             Section 2(b) of article ,6252-19b expressly provides that
        “[l]iability of the political subdivision under this Act is limited to
        $100,000 to a single person and $300,000 for a single occurrence, in
        the case of personal injury or death, and to $10,000 for a single
        occurrence of injury of or damage to property.” We do not believe
        that the phrase “to a single person” in that context includes the
        State of Texas. A “case of personal injury or death” and “injury of
        or damage to property” also are not applicable to suits by the state
        for failure of a county official to tax or collect court costs.

             Section 2(b) also provides that a “county or political
        subdivision is not liable under this Act to the extent that damages
        are recoverable under a contract of insurance or under a plan of
        self-insurance authorized by statute.” Article 2372h-7, V.T.C.S.. was
        amended by the same bill that enacted article 6252-19b. The fact that
    C
        article 2372h-7 only authorizes a county to insure its officers
        “against liability to a third person arising from the performance of
        official duties . . . by purchasing policies of liability insurance”




                                         p. 675
Aonorable Bob Bullock - Page 10    (JM-153)




further indicates that article 6252-19b is not intended to apply to
liability to the state for an official's failure to tax or collect the
state's court coats.

                             SUMMARY

             A county government is not liable to the state
          for court costs that are collected but not
          deposited in the county treasury by a county
          official under the statutes creating the Criminal
          Justice Planning Fund, the Law Enforcement Officer
          Standards and Education Fund, and the Compensation
          of Victims of Crime Fund. The comptroller of
          public accounts may initiate collection action
          against an individual misappropriating such funds
          to collect the funds that he determines by his
          audit are due the state. If a county initiates
          action against a former county official to recover
          misapplied court costs due the state, the county
          may retain fees authorized by statute for the
          collection of state funds by a county or district
          attorney.    The   county   official*   with   the
          responsibility to tax or collect the court costs
          due the state do not have authority to waive their
          taxation or collection but shall collect such
          costs in the same manner as other fines and coats
          are collected. Article 6252-19b. authorizing a
          county to pay certain damages, costs, and attorney
          fees adjudged against a county official, is not
          applicable to a suit based on a failure of the
          county official to tax or collect court costs for
          the state.




                                           JIM     MATTOX
                                           Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICBARDS
Executive Assistant Attorney General

Prepared by Nancy Sutton
Assistant Attorney General




                                  p. 676
         -   ,
.’   ,




                 Honorable Bob Bullock - Page 11   (JM-153)




                 APPROVED:
                 OPINION COMMITTEE

                 Rick Gilpin. Chairman
                 Jon Bible
                 Colin Carl
                 Susan Garrison
                 Jim Moellinger
                 Nancy Sutton




                                                   p. 677
