                                          The Attorney            General of Texas
                                                           December 31, 1982

MARK WHITE
Attorney General


                                         Honorable Britt Plunk                  opinion NO. ~~-584
Supreme      Court Building
P. 0. BOX 12546
                                         Hardin County Attorney
Austin,    TX. 78711. 2548               P. 0. Box 516                          Re: Duty of County Attorney
512/475-2501                             Kountze, Texas   77625                 to report collection and dis-
Telex    9101874-1367                                                           bursement of funds collected
Telecooier     5121475-0268                                                     pursuant to article 53.08 of
                                                                                the Code of Criminal Procedure
1607 Main St., Suite 1400
Dallas, TX. 75201-4709                   Dear Mr. Plunk:
2141742.8944
                                              You have requested our opinion regarding the duty of a county
4824 Alberta        Ave.. Suite    160
                                         attorney to report the collection and disbursement of funds collected
El Paso, TX.        79905.2793           pursuant to article 53.08 of the Code of Criminal Procedure. That
9151533.3484                             statute provides, in pertinent part:

                                                     (a) A county attorney... may collect a fee if
1220 Dallas Ave.. Suite           202
Houston,   TX. 77002.8986
                                                  his office collects and processes a check or
713/650-0666                                      similar sight order if the check or similar sight
                                                  order:
806 Broadway.         Suite 312
                                                     (1) has been issued or passed in a manner
Lubbock,     TX.     79401.3479
806~747.5238
                                                  which makes the issuance or passing an offense....

                                                      . . ..
4309 N. Tenth,    Suite S
McAllen,    TX. 78501-1885
                                                     (e) Fees collected under this article shall be
5121682-4547
                                                  deposited in the county treasury in a special fund
                                                  to be administered by the county attorney....
200 Main Plaza, Suite 400                         Expenditures from this fund shall be at the sole
San Antonio.  TX. 782052797                       discretion of the attorney, and may be used only
5121225-4191
                                                  to defray the salaries and expenses of the
                                                  prosecutor's office, but in no event may the
An EqualOpportunityi                              county attorney... supplement his or her own
Affirmative        Action   Employer              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.

                                              You ask whether any of the following reporting statutes are
                                         applicable to funds collected pursuant to article 53.08:




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Honorable Britt Plunk - Page 2   (m-584)




            ,Whenever a district or county attorney has
         collected money for the State or for any county,
         he shall within thirty days after receiving the
         same, pay it into the treasury of the State or of
         the county in which it belongs, after deducting
         therefrom and retaining the commissions allowed
         him thereon by law. (Emphasis added).

V.T.C.S. art. 335. Language in article 335 which authorized the
county attorney to retain commissions was repealed by the enactment of
provisions establishing the officers' salary fund. Tex. Const. art.
XVI, 961; V.T.C.S. art. 3912k, 85.

            On or before the last day of August of each
         year, each district or county attorney shall file
         in the office of the Comptroller or of the county
         treasurer, as the case may be, a sworn account of
         all money received by him by virtue of his office
         during the preceding year, payable into the State
         or county treasury.

V.T.C.S. art. 337.

             The district attorney of each district shall,
          at each term of the district court for each county
          in his district, make a report to the county
          clerk, of all moneys received by him since the
          last term of the district court for such county
          for the use of such county. Each county attorney
          shall make a similar report to the said clerk at
          the end of each month. (Emphasis added).

V.T.C.S. art. 1620.

            Each district, county and precinct officer
         shall keep a correct statement of all fees earned
         by him and all sums coming into his hands as
         deposits for costs, together with all trust funds
         placed in the registry of the court, fees of
         office and commissions in a book or in books to be
         provided him for that purpose, in which the
         officer, at the time when such deposits are made
         or such fees and commissions are earned and when
         any or all of such funds shall come into his
         hands, shall enter the same; and it shall be the
         duty of the county auditor in counties having a
         county auditor to annually examine the books and
         accounts of such officers and to report his
         findings to the next succeeding grand jury or




                                 p. 2169
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        Honorable Britt Plunk - Page 3   (MW-584)




                  district court.    In counties having no county
                  auditor,   it   shall  be   the   duty   of   the
                  Commissioners' Court to make the examination of
                  said books and accounts or have the same made and
                  to make report to the grand jury as hereinabove
                  provided. (Emphasis added).

        V.T.C.S. art. 3896.

                     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.

        Code Crim. Proc. art. 1001.

             Article 337 is clearly applicable to the funds about which you
        inquire: they constitute "money received by [the county attorney] by
        virtue of his office [and] payable into the State or county treasury."
        They also constitute "fees earned by" the county attorney for purposes
        of article 3896. Articles 335 and 1620, as well as article 1001 of
        the Code of Criminal Procedure, are applicable if article 53.08 funds
        are collected "for the State or for any county," (article 335), "for
        the use of such county," (article 1620), or "in the name or for the
        use of the State," (article 1001).

             In Attorney General Opinion MW-188 (1980). we said that article
        1656a. V.T.C.S., which authorizes a county auditor to prescribe
        accounting procedures, is applicable to funds collected under article
        53.08. The opinion emphasized the fact that article 53.08 accords to
        the prosecuting attorney "a limited statutory discretion to determine
        the purpose for which expenditures from the fund are to be made." It
        does remove these funds from the statutory reach of the county
        auditor.

             Likewise, we believe that, although article 53.08 permits a
        county attorney to determine, within certain limitations, the purposes
        for which the funds may be expended, it does not convert them into
        non-public funds. Indeed, the statute specifies that the funds may be
        used "only to defray the salaries and expenses of the prosecutor's
        office," inarguably a public purpose. Cf. Attorney General Opinion
        MW-439 (1982). Funds collected by a publicagency and used for public
        purposes are clearly public funds. See Texas Pharmaceutical Ass'n v.
        Dooley, 90 S.W.2d 328 (Tex. Civ. App. - Austin 1936, no writ). We
        conclude that such funds are collected for the use of the state and




                                         p. 2170
Honorable Britt Plunk - Page 4   (m-584)




county, and as a result, that articles 335, 1620, and 1001 are
applicable thereto. Thus, a county attorney is required to report the
collection and disbursement of all funds collected pursuant to article
53.08 of the Code of Criminal Procedure, in accordance with the
directives of articles 335, 337, 1620 and 3896, V.T.C.S., and article
1001 of the Code of Criminal Procedure.

                              SUMMARY

             A county attorney is required to report the
          collection and disbursement of all funds collected
          pursuant to article 53.08 of the Code of Criminal
          Procedure, in accordance with the directives of
          articles 335, 337, 1620 and 3896, V.T.C.S., and
          article 1001 of the Code of Criminal Procedure.




                                        MARK      WHITE
                                        Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
David Harris
Jim Moellinger
Bruce Youngblood




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