                      March 29, 1989




Mr. l-l.Bate Bond             Opinion No.   JM-1034
County Auditor
Coma1 County                  Re: Authority to transfer hot
150 N. Seguin, Suite 201      check fund from county attorney
New Braunfels, Texas 78130    to district attorney (RQ-1630)

Dear Mr. Bond:

     Your questions1 relate to fees collected by the county
attorney under article 1.02.007 of the Code of Criminal
Procedure. Article 102.007 provides for the collection by a
county attorney, district attorney, or criminal     district
attorney of a fee in connection with the collection or
cessing by his office of a check if the check had E,'z,
issued or passed   in a manner constituting     one of the
offenses set forth in that article.

     You ask whether the funds collected     under article
102.007 by the county attorney  "fall under the control of
the Commissioners Court when moving them from one official
to another."

     You advise that there has been a disagreement   between
your office and the county attorney as to whether the county
attorney may transfer    funds out of this account to the
office of the district attorney without the permission    of
the commissioners court.




     1. A county auditor is required to submit any opinion
request  initially to his county or district       attorney
pursuant to section 41.007 of the Government Code. However,
this office will-accept an opinion request directly from a
county auditor in an instance where the auditor's    office
disagrees with the county attorney and believes that the
county attorney's position    is in conflict with     prior
opinions of the Attorney General's Office. You advise that
such a situation prompted your request.




                             p. 5347
Mr. Ii. Bate Bond - Page 2   (JM-1034)




     Subdivision  (e) of article 102.007 provides             with
respect to the disposition of such fees as follows:

           Fees collected under this article shall be
        deposited in the county treasury in a special
        fund to be administered by the county attor-
        ney, district,attorney, or criminal district
        attorney.  Exoenditures from this fund shall
        be at the sole discretion of the attorney and
        may be used onlv to defray the salaries    and
        exuenses of the orosecutor's office, but in
        no event may the county attorney,     district
        attorney,  or    criminal district    attorney
        supplement his   own  salary from  this  fund.
        (Emphasis added.)

Code Crim. Proc. art. 102.007(e).

     In Attorney General Opinion JM-967 (1988), the matter
of whether certain prior opinions of this office relative to
the management of the "hot check" funds were in conflict was
addressed as follows:     '

           Attorney  General Opinion JM-313     [1985]
        simply pointed out that although expenditures
        from the 'hot check' fund were not subject to
        commissioners court approval, the fund was
        generally subject to statutes regulating   the
        handling of county moneys,    citing Attorney
        General Opinions MW-188   (1980) ('hot check'
        fund subject to county auditor's power to
        prescribe accounting  and control procedures
        for making deposits and disbursements),    and
        MW-584 (1982) ('hot check' fund subject to
        various reporting requirements applicable   to
        county funds).

           We find no conflict between JM-313           and
        MW-439 [1982]. We adhere to the rationale of
        MW-439   that to subject      'hot check'      fund
        expenditures       to the competitive     bidding
        requirements would olace ultimate control of
        these eXDenditUreS    in the commissioners court
       -which 'could. for examole. refuse to accent
        anv or all bids in a oarticular instance and
        thus interfere with the exclusive riaht of
        the desianated individuals to administer        the
        fund and to determine when, for what ouroos-
        es, and under what circumstances eXDeIIdi.tUreS
        will be made from it.'         Attorney   General
        Opinion MW-439 (1982), at 6. Such a result




                                p. 5348
Mr. H. Bate Bond - Page 3   (JM-1034)




        would be contrary to the express provision of
        article  102.007 . . . that   '[elxpenditures
        from this fund shall be at the sole discre-
        tion of the attorney.'  (Emphasis added.)

     Limitations on expenditures from the special fund under
article 53.08 of the Code of Criminal Procedure (now article
102.007) and the matter of the disposition of any surplus
were discussed   in Attorney General Opinion JM-313,      as
follows:

           Expenditures from the special     fund are,
        however, limited to defraying 'the salaries
        and expenses of the prosecutor's office.'     In
        other words, all expenditures from the fund
        must relate to the official business of the
        prosecutor's office. There is no reouirement
        that the attornev SDend the entire        fund:
        rather. the attornev mav SDend no more than
        the amount which   is reasonablv necessary    to
        defrav the salaries and exDenses of the
        office. Anv surDlus must remain in the fund,
        subiect to the leaislature's further direc-
        tion for disDosition.   A Dositive balance mav
        be carried from one fiscal vear to the next
        but such funds remain subiect to the limita-
        tion to office exDenses. Article 53.08 does
        not require the attorney to pay any excess in
        the special fund over to the general fund of
        the county. The attorney must, however, com-
        ply with various    reporting   statutes.   See
        Attorney General Opinion MW-584 (1982) (and
        statutes cited therein).    (Emphasis added.)

     The attorney has exclusive     control of the 'funds;
however, he may expend no more than is reasonably  necessary
to defray the salaries and expenses of the office.     While
the commissioners court has no control of these funds it
should be noted that any interest earned from these funds is
treated differently.   In Attorney General Opinion JM-632
(1987) it was concluded that any interest earned by the
deposit of money received pursuant to the so-called     "hot
check" fund, must be deposited in the general revenue  funds
of the respective    counties pursuant to article      1709,
V.T.C.S. (now section 113.021(c) of the Local Government
Code).




                              p. 5349
Mr. H. Bate Bond - Page 4   (JM-1034)




     While the term "prosecutor" may mean count     attorney,
district attorney, or criminal district attorney 3 there  can
be no question but that they are separate and distinct
offices.   Section   102.007 and opinions   of this office
construing this statute provide that   expenditure  of these
funds is limited to defraying  the salaries and expenses   of
the office generating the fund rather than for prosecutors'
offices generally.  Section 102.007 makes no provision    for
transfer of the funds between the offices of county and
district attorney  or any other office.    Any surplus must
remain in that officer's special fund subject to the legis-
lature's  further direction    for disposition.      Attorney
General Opinion JM-313.

                       SUMMARY

             Expenditures from a county attorney's
        "hot check" fund created pursuant to article
        102.007 of the Code of Criminal Procedure may
        be made at the sole discretion of the county
        attorney to defray salaries and expenses   of
        that office   (except that such official may
        not supplement his own salary). Neither   the
        county attorney nor- the commissioners  court
        is authorized   to transfer funds from such
        account to the district attorney or any other
        official.




                                     JIM     MATTOX
                                     Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LCNJMCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General




     2. Section 41.101 of the Government Code provides that
"In this subchaoter, 'prosecuting attorney' means a county
attorney, district attorney, or criminal district attorney."




                                 p. 5350
Mr. H. Bate Bond - Page 5     (JM-1034)




RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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