                        February 18, 1987




Eonorable Barry L. Macha             Opinion No. JM-632
Criminal District Attorney   .
Courthouse                           Re: Disposition of interest earned
Wichita Falls, Texas   76301         on "hot check" fund administered by
                                     a criminal district attorney

Dear Mr. Macha:

     Interest generated by the deposit of county money is deposited in
the county treasury pursuant to articles 1709 and 1709a. V.T.C.S., the
latter of which specifically provides that "[sluch deposit of funds in
the county treasury shall not in any wise change the ownership of any
fund ab deposited. . . ." V.T.C.S. art. 1709a. 12(a). Article 53.08
of the Texas Code of Criminal Procedure authorizes a county attorney,
a district attorney. or a criminal district attorney to collect a fee
if his office collects and processes a check whose issuance con-
stitutes an offense under either sections 32.41, 31.03, or 31.04 of
the Penal Code. You wish to know whether the interest earned by the
deposit of the money in this so-called "hot check" fund accrues to the
credit of the fund itself or to the credit of the county's general
revenue fund. We conclude that the funds created by article 53.08 do
not bear sufficient indicia of a trust to require the accrual of any
depository interest earned by the fund to be credited to the fund
itself. We conclude that such interest must be credited to the
county's general revenue fund.

     Subsection (e) of article 53.08 of the Code of Criminal Procedure
sets forth the following:

            (e) Fees collected under this article shall be
         deposited in the county treasury in a special fund
         to be administered by the county attorney, district
         attorney, or criminal district attorney. Expendi-
         tures from this fund shall be at the sole dis-
         cretion of the attorney, and may be used only
         to defray the salaries and expenses of the
         prosecutor's office. but in no event may the county
         attorney, district attorney, or criminal district
         attorney supplement his or her own salary from this
         fund. Nothing in this Act shall be construed to
         decrease   the   total  salaries, expenses, and
         allowances which a prosecuting attorney's office is
         receiving at the time this Act takes effect.



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Eonorable Barry L. Macha - Page 2      (JM-632)




     Opinions issued by this office consistently have maintained that
interest earned by the monies deposited by political subdivisions and
held in trust becomes part of the principal and, consequently, part of
the money, that generated the interest. See Attorney General Opinions
JM-566. J&549, .I&539 (1986); JM-323, a-1,      JM-306, J'M-300 (1985);
MU-82 (1979); E-1040 (1977); M-408 (1969). Cf. Attorney General
Opinions MW-338 (1981); H-1107 (1977). These opaons     indicate that,
in order to be characterized as trust funds, the funds in question
should reflect, among other things, (1) that they are administered by
a trustee or trustees  or by someone "in trust"; (2) that the funds
neither are granted, in this instance, to the county in its sovereign
capacity nor collected for the general operation of the county, and
(3) that  they are to be spent and invested for specific, limited
purposes and for the benefit of a specific group of individuals.

     Unlike, for example, the funds created under articles 1066c,
1118x. 1118~. 5221b-7, and 6243e. V.T.C.S. (which govern the local
sales and use tax, metropolitan rapid-transit authorities, regional
transportation authorities, unemployment compensation. and fire-
fighters' relief and retirement, respectively), the funds created
under article 53.08 of the Code of Criminal Procedure, are not to be
governed by a trustee or by any public officer "in trust." The monies
are "administered by the county attorney. district attorney. or
criminal district attorney." language that is in no material way
different from that which reposes in the comptroller the responsi-
bility to perform all functions incident to the administration of the
bingo tax, see article 179d. 924, V.T.C.S., the banking franchise tax,
see articleT66e,   (a). (d), V.T.C.S.. and the mixed beverage tax, see
Etion   205.03, Alto. Bev. Code. See Attorney General Opinion .I%566
(1986). Article 53.08 of the Codeof Criminal Procedure does provide
that "expenditures from this fund shall be at the sole discretion of
the attorney" administering the fund, see Attorney General Opinion
JM-313 (1985). but this language is inten;i;rd
                                             to carve out an exception
to the statutory provisions which confer such authority generally to
the connnissionerscourt. Such language does not impose any additional
fiduciary duty on the administering attorney over and above that which
normally devolves upon public officers.

     It is true, of course, that article 53.08 of the Code of Criminal
Procedure does not specify that the funds are granted to the county
for its general operation in the way that the statutes governing the
bingo tax, the banking franchise tax, and the mixed beverage tax do.
See Attorney General Opinion JM-566 (1986). Rather article 53.08
specifies that expenditures from the fund

          may be used only to defray the salaries and
          expenses of the prosecutor's office, but in no
          event may the county attorney, district attorney.
          or criminal district attorney supplement his or
          her owe salary from the fund.




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Honorable Barry L. Macha - Page 3      (JM-632)




See Attorney General Opinion JM-313 (1985). But the language so
Irking      the funds differs in no material way from language
typically found in the Appropriations Act directing the expenditure of
state funds.

     And finally, article 53.08 does not specify that the funds be
held for a specific or identifiable group of individuals or recipients
in the way in which the statutes governing the local sales and use
tax, metropolitan rapid transit authorities, regional transportation
authorities, unemployment compensation. and firefighters' relief and
retirement do. See Attorney General Opinions JM-539 (1986); JM-306
(1985); MW-82 (19Fj. Article 53.08 specifies only that the funds are
expended for particular purposes in language that, again, differs in
no material way from language typically found in the Appropriations
Act directing the expenditures of state funds. See, e.g., Board of
Managers of the Harris County Hospital District v. Pension Board of
the Pension System for the City of Houston. 449 S.W.2d 33 (Tex. 1969);
Woods V. Reilly, 218 S.W.2d 437 (Tex. 1949); Devon v. City of San
Antonio, 443 S.W.td 598 (Tex. Civ. App. - Waco 1969, writ ref'd);
Attorney General Letter Advisory No. 5 (1973).

     We conclude that the funds created pursuant to article 53.08 of
the Code of Criminal Procedure do not bear sufficient indicia to
warrant calling them trust funds; rather, they are more accurately
denominated statutory funds. Accordingly, we conclude that such funds
are not entitled to be credited with interest earned by deposit of its
monies: article 1709, V.T.C.S., requires that such interest be
credited to the general revenue funds of the respective counties.

                             SUMMARY

               The interest earned by the deposit of money
          received pursuant to article 53.08 of the Code of
          Criminal Procedure, the so-called "hot check"
          fund, most be deposited in the general reventie
          funds of the respective counties pursuant to
          article 1709. V.T.C.S.




JACK HIGETOWRR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General




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Eonorable Barry L. Macha - Page 4   (JM-632)




RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General




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