‘



                     THEA~ORNEYGICNERAI~
                               OF TEXAS
                                   AUSTIN.       T-s          78711




    The Honorable   Jim Sharon         Bearden                  Opinion   No.   H-   360
    Orange  County Attorney
    Orange  Courthouse                                          Re: Liability   of district
    qrange,  Texas   77630                                      clerk for disappearance
                                                                of trust funds.

    Dear    Mr.   Bearden:

              Your   letter   requesting   our opinion        reads:

                        I have been asked by the District   Clerk and the
                        County Auditor   for an opinion from your   office
                        on the following  question:

                              Is the District    Clerk liable for trust funds
                              (child support     monies)  that have mysteriously
                              disappeared?

                        On about January 3, 1974, $500100 in cash of child
                        support money came up mysteriously         missing.  .,There
                        is -no evidence  indicating   that any of the deputy district
                        clerks assigned   to the child support office were in-
                        volved in the disappearance.

    You    summarize:

                        1. Is the district  clerk      personally      liable for funds
                        that have mysteriously         disappeared       that were in her
                        possession  in trust?

                        2. If it can be established   that this money was stolen
                        by an outsider  without fault on the part of the district




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The Honorable     Jim Sharon       Bearden     page     2     (H-360)




                  clerk, would the district         .clerk   be liable   personally
                  for such funds?

          We understand    from your letter that we are to assume the funds
were paid into the Registry       of the District    Court and came into the construc-
tive or actual possession      of the Clerk at some time.       The brief accompany-
ing your request     sets out the applicable      statutes and ably reviews  the
authorities  as follows:

        Article   2558a,    Sec.   9, V. T. C.S.,      states:

                  The County and District          Clerks    shall not be
                  responsible     for any loss of the Trust Funds
                  through failure     or negligence       of any depository,
                  but nothing in this Act shall release            any County
                  or District    Clerk for any loss resulting           from
                  any official   misconduct       or negligence      on his part
                  nor from any responsibility          for’ such Trust Funds
                  until a depository      shall be selected       and the funds
                  deposited    therein nor for any misappropriation             of
                  such funds by him.         Upon the deposit in the legally
                  selected    depository     of the Trust Funds by any
                  County of District       Clerk,   such Clerk shall there-
                  after be relieved      of the safekeeping        of said funds.

        Article   2290,    V. T. C. S. says:

                  The officer   having custody of any money,       debt, script,
                  instrument    or writing,   or other article  paid or
                  deposited   in court during the progress     of any~cause
                  to abide the result of any legal proceeding,       shall
                  seal up in a secure package the identical       money or
                  other article   so received   and deposit it in some
                  safe or bank vault, keeping it always accessible         and
                  subject to the control    of the court; and he shall also
                  keep in his office as a part of the records      thereof a




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    The Honorable      Jim Sharon     Bearden        page    3   (H-360)




                      correct    itemized    statement    of such deposit,      on
                      what account received,         and the disposition      made
                      of the same.       When his term of office expires,
                      such officer     shall turn over to his successor          all
                      of such trust funds and other property           and the
                      record    book thereof,     taking his receipt     therefore.
                      This article     shall not exempt any officer         or his
                      surety from any liability        on his official    bond for
                      any neglect     or other default in regard       to said
                      property.

             In 47   TEX.   JUR.    2d,   Public     Officers,    Sec.     136, p. 175, it says:

                            An officer who is the custodian      of public money does
                      not occupy the position      of a mere bailee for hire,     who
                      is responsible    only for such care of the money as a
                      prudent man would take of his own; nor is he a “debtor”
                      to the County within the ordinary        meaning of the term,
                      since if he were,     the money would be his property        and
                      he could not be guilty of misapplying        it as the offense
                      is defined in the Penal Code.        He is bound to account
                      for and pay over the money to the person entitled,           less
                      his commissions,       or his sureties    must pay it for him;
                      and neither he nor his sureties        are relieved   from
                      liability  by the fact that the money was stolen without
                      his fault . . . .

    You have also cited to us Harllee        v. State,     18 S. W. 2d 1091 (Tex.     Civ.
    APP. --Waco       1929), in which the court said that the Clerk of the district
    court and his sureties      were liable for money deposited        in the registry     of
    the court for minors,      notwithstanding      the unauthorized   attempt to pay the
    minor’s   father,    and Lq-ham     V. Dies,    98 S. W. 897 (Tex.    Civ. App. 1907)
    a suit in which the district     clerk had deposited       money in a safe that was
    supposed to be burglar-proof.          Burglars    later proved thatthis was not the
    case and the court held the district        clerk liable.




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The Honorable     Jim Sharon    Bearden      page   4     (H-360)




         We believe  the statutes and cases you cited support affirmative
answers   to your questions.    Also see Lawyers    Surety Corp. V. Reina,
483 S. W. 2d 911 (Tex.    Civ. App. -- Amarillo  1972, writ ref. n. r. e.),
and Co1 v. Force,    50 S. W. 616 (Tex.  Civ. App.,    1899, writ ref.);
Attorney  General   Opinion M-1198 (1972).

          In our opinion   the duty of the clerk    to account       for    the money     is
absolute..

                                       SUMMARY

                      The duty of the District   Clerk to          account for child
                 support money paid into the Registry                of the Court is
                 absolute,   and the Clerk is liable for           its mysterious
                 disappearance     prior to its deposit in          the official
                 depository   therefor.

                                                        Very   truly       yours,




                                                        Attorney     General        of Texas




DAVID M. KENDALL,           Chairman
Opinion Committee




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