        THEATORNEY                  GENERAL
                     OF     TEXAS




                                         February 13, 1939

Hon. Clifford Bralg
Dlstrfct.~Attotineg~:
                   .'...,
                      ~.:
                        :~'- :,~:,,:
                                 .~~.; .'~
Pampa, Texas     "' .~.~
                      ".
Dear SLr:          Opinion No. O-325
                   Re: Is personal  use of &nds received &s
                       court costs by Dlstr'lctClerk a vlola-
                       t.lonof the Penal Code?
       Your request for an oplnlon on the above stated ques-
tion has been received by this office.
       Your letter reads,    in part, as follows:
       "The.Distrlct.Cierk of,&his co&y, as shown
    by the &i&itor,'stiepor$,,just:belngfiled, ~&as
    used for her,~ownp'&rsoi@ui~ecabh courtcost
    deposits placed with heti~
                             in her official capacity
    as Dtptrlct Clerk; the total sum convertedbeing
    approxlmat&ly$500.00, about half of which has
    been replaced in her official funds. I vould
   ,-appreciatebeing advised Whether this Is a vlo-
    latlon of our penal code and If so what article
    should prosecutionproceed under?.
       "For your lnfortitlon,the District C.lerkof
    Gray County.1~paid on the salary.basisand all
    fees of office are payable by the District Clerk
    to the salary fund of the County."
       Section 4 and 5, Article 3912e, reads as follows:
         “Sec. 4. In all counties of this State con-
    taining a population of less than one hundred
    and ninety thousand (190,000)Inhabitantsaccord-
    lng to the last preceding Federal Census uhereln
    the county or.preolnctofficers are compensated
    on a salary binsisunder~the provisions of this
    Act,   there shall be created a fund to be known
    as the "Offictirsl  Salary Fund of        colinty,
    Texas.' Such fund shall be kept separate and.
    apart from all other county funds, and shall be
    held and disbursed for the purpose of paying
    the salaries of officers and the salaries of dep-
                                                           . -_._




Hon. Clifford Braly,   February 13, 1939, Page 2        O-325


    utles, assistantsand clerks of orfloerswho are
    drawing a salary from said fund under the provl-
    slons of this Act, and to pay the authorized ex-
    penses and their offices. Such fund shall be
    deposited In the county depository and shall be
    protected to the same extent as other county
    funds.
       "Sec. 5. It shall be the duty of all officers
    to charge and collect In the manner authorized
    by law all~fees and commissionswhich are permlt-
    ted by law to be assessed and collected for all
    official service performed by them. As and when
    such fees are collected they shall be deposited
    In the Officers'Salary Fund, or funds provided
    In this Act. In event the Commissioners'court
    finds that the failure to collect any fee or
    commlsalonwas due to neglect on the part of the
    officer charged with the responsibilityof col-
    lecting same, the amount of such fee or commls-
    slon shall be deducted from,the salary of such
    officer. Before any such deduction Is made,
    the Commissioners'Court shall furnish such of-
    ficer with an Itemized statement of the uncol-
    lected fees with which his account Is to be
    charged, and shall notify such officer of the
    time and place for a hearing on same, to aeter-
    mine whether such officer was guilty of negll-
    gence, which time for hearing shall beat least
    ten days subsequentto the date of notice. Uni
    less an officer is charged by law with the re-
    sponsibilityof collecting fees, the Commlsslon-
    era' Court shall not In any event make any de-
    ductions from the authorized salary of such of-
    ficer."
       Article 95 of the Penal Code reads as follows:
       "If any officer of any county, city or town,
    or any person employed by such officer, shall
    fraudulentlytake, misapply, or convert to hiB
    own use any money, property or'otherthlng of
    vaIue beloriglngtosuch county,,clty,or town,
    that may have come into his custody or posses-
    sion by virtue of his office or employment,or
    shall secret (secrete)the same with lntentto
    take, misapply or convert it to his own use/or
    shall pay or deliver the same-to any person
    know~lngthat he la not entitled to receive It,
    he shall be confined In the penitentiarynot less
Hon. Clifford Braly, February 13,   1939, page 3          O-325



    than two nor more than ten years."
       The case of.Reynolds vs. State, 92 SW (2nd) 450,    holds,
among other things, that :
       'For an officer to be guilty of misapplying or
    converting public funds, runda must have come Into
    his custody or possession by vlrtue,of his office
    whdch means that he must be In actual possession
    thereof at the time of conversion or mlsappllcatlon."
       In view of the foregoing authorities, you are respect-
fully advised that It 15 the oplnlon of this-Department that
when any officer of any.county, city or town, or any'person
employed by such officer who shall fraudulently take, misapply
or convert to his own use any money, property or other thing
of value, belonging to such county, city or town, which Is In
his actual possessionand that has come Into his custody by
virtue of his office or employment, or shall secrete the same
with Intent to take, mf.sapplyor convert to his own use or --
shall pay or deliver the same to any person knowing that he Is
not entitled to receive It, ~1s subject to prosecution under
Article 95 of the Penal Code...
         Trusting that the foregoing answers your Inquiry, we
remain
                                Very truly yours
                             ATTORNEYGENERAL   OF TEXAS
                                                   .

                                By s/Ardell Wllllsims
                                     Ardell Wllll~ms
                                           Assistant

AW:AW:wc

APPROW:      '~
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
