                           QBfficeof ttp !Zlttornep@enera
                                        &ate of lQexas
DAN MORALES                               January 10, 1994
 Al-rORNEY
        GENERAL

     Mr. S. E. Seely                              Opinion No. DM-282
     El Paso County Auditor
     Room 406, County Courthouse Buildmg          Re: Whether a county must maintain a
     500 East San Antonio Street                  special and separate account for cash bail
     El Paso, Texas 79901-2421                    bond Gmdsthat the county receives pursuant
                                                  to article 17.02 of the Code of Criminal
                                                  Procedure and related questions (RQ-565)

     Dear Mr. Seely:

             You ask the followingquestions:
                     1. Under the Texas Code of CriminalProceduren Art. 17.02,
                the County reckvescashbailbondfimds. MuattheCountymaintain
                a special and separate checking account for these cash bail bond
                funds?

                     2. Ifyouraaswertotheabovequestionisnegative~thencan
                the cash bail bond fimds be deposited directly into the County
                Treasury, escrowed in the general limd and invested from the general
                fund’s escrow account? If so, can the resuhing interest income be
                credited to the County’s general fimd? If not, then what would be
                the proper disposition of the intaest income?

                     3. Ifyouranswertoquestionnumber        1 is-,        canthe
                cash bail bond funds be invested from the special and separate
                checking account? If so, can the interest income generated by the
                investments be deposited into the County Treasury and credited to
                the County’s general tind interest income account? If the interest
                income CBMotbe deposited into the County Treasury and credited to
                the general timd, then what would be the proper disposition of the
                interest income?

                    4.  The County deposits inmate monies in a trust fund in
                accordance with the Texas Government Code 5 50[1].014.’ Can the
                County invest these inmate trust fimd monies under its control and
                use the resulting interest income in its general fund? Footnote
                added.]

              ‘You cite section500.014oftk Govammu chdc. TlIelegislsnlre lemlmkd     suxioa 500.014
      ss seaion 501.014of theGovcrnmcnt  c& in 1991.Set Acts1991.72dLeg.,ch. 16,s   10.01(a).
                                                                                           at 312.



                                              p. 1477
Mr. S. E. Seely - Page 2                   (DM-282)




       Your tirst three questions pertain to the receipt of cash bail bond funds by the
County of El Paso (the “county”). Section 17.02 of the Code of Criminal Procedure,
which you cite, provides as follows:
                A “bail2 bond” is a written undertaking entered into by the
           defendant and his sureties for the appearance of the principal therein
           before some court or magistrate to answer a crimmal accusation;
           provided, however, that the dekndant upon execution of such bail
           bond may deposit with the custodian of timds of the court in which
           the prosecution is pending current money of the United States in the
           amount of the bond in lieu of having sureties signing the same. Any
           cash funds deposited under this Article shah be receipted for by the
           officer receiving the same and shall be retimded to the defendant if
           and when the defendant complies with the conditions of his bond,
           and upon order of the court. Footnote added.]

See a&o 22 TEX. JUt. 3d CrimiiMI          Law 8 2170, at 397 (1982). In Attorney General
Opiion JM-1162 (1990) at 2 this office considered questions mgarding the status of trust
limds that a district clerk holds in trust until tInal disposition by a court. Our resolution of
the issues ffire us in that opinion controls our resolution of the questions you ask
mgading the receipt of cash in lieu of bail bonds.

       This office concluded in Attorney General Opiion JM-1162 that cash paid in lieu
ofabailbondistobeheldintrustpursuanttochapterll7oftheL.ocalGovemment
Code. Attorney General Opiion JM-1162 at 2. For purposes of chapter 117 of the Local
Govemment Cod% a “trust fimd”
           is an equitable obligation under which the trustee is required to deal
           with the trust property for the benefit of the be&i&ies who have a
           vested interest in the trust funds. Any fin& fitting this dektition are
           trust 6mds and, if in the possession of the county or district clerk,
           may be deposited in the county depository for trust tlmds.
                . . . .

           We believe that any money deposited in court to satisfy the result of
           a legal proceeding or to await the result of a legal proceeding fhlls
           within the scope of m      Government Code sections 117.052 and
           117.053].
Id.at1 (quoting Attorney General OpinionH-183 (1973) at 4,6).




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Mr. S. E. Seedy - Page 3                  (~~-282)




        The opinion next considered whether a district clerk must deposit trust timds in
separate accmmts or in interest-bearittgaccounts. Id.at3. It noted,      initially,
                                                                                 thatchapter
117 of the Local Govemment Code does not expressly require a district clerk to place
bust limds either in separate accounts or in interest-bearing accounts. Id.However, the
clerk must comply with the instructions of the court that directed the clerk to hold the
ftmds. Id.Theopinion also noted that both the county auditor and county commissioners
court have some discretionary authority to impose additional duties upon the. district clerk
in regard to the trust timds. Id.For example, section 112.002 of the Local Government
Code authorizes a county auditor to mandate certain auditing procedures, perhaps
including a requirement that the district clerk deposit trust funds in separate accounts. Id.
Section 117.051 of the Local Government Code authorizes a commissioners court to
require that trust Smds be placed in “time deposits,”which, according to Attorney General
Opinion Bvl-1162, indicates that the commissioners court may require trust funds to be
placed in interest-bearingaccounts. Id.at 3-4.

        This office also exam&d in Attorney General Opiion JIM-1162 the question of
whether a comty is entitled to receive any interest that accrues on fbnds the district clerk
    . .
mamtams. Section 117.054(a) of the Local Government Code provides a county with a
lightt0nceive   a~patt of the interest earned on trust ibnds placed in time deposits, but the
              receive no more than is “reasonably related to the accounting and
5        *y
Wive           expemes” the county has incurred in handling the funds. Id. Section
117.054(b) authorirzesthe county auditor or county treasurer to deposit the amount of
compensation into the county’sgeneral Smd. Id.

        Based upon Attorney General Opiion Jb-1162, we conclude that the district
clerk may deposit into a separate accountcashpaidinlieuofabailbondifthewurtor
mother authority, such as the county auditor, orders the clerk to do so. The district clerk
may deposit into an interest-bearmg account cash paid in lieu of a bail bond ifthe court or
another authority, such as the wunty wmmissioners wutt, orders the clerk to do so. If
the district clerk deposits cash paid in lieu of a bail bond into an interest-bearing account,
however, the county may not keep all of the accrued interest. Instead, except for a
portion of the accrued interest that the county may keep pursuant to section 117.054 of
the Local Government Code, the clerk must return to the depositor any interest that
accrues on the cash.

       You also a& about the disposition of interest received on inmate monies in a trust
fimd established in accordance with section 501.014 of the Government Code. Section
501.014 provides in relevant part as follows:
              (a) The director of the institutional division shall take
          possession of all money that an inmate has on the inmate’s person
          when the inmate arrives at the institutional division and ah money the
          inmate receives at the department a&r arriving at the division and
          shall credit the money to a trust fimd created for the inmate. . . The
          director of the institutional division may spend money from a trust
          fund on the written order of the inmate in whose name the fund is
Mr. S. E. Seely - Page 4                 (DM-282)




          established subject to restrictions on the m           established by
          law or rule.

Section 501.014 applies only to the director of the institutional division of the Texas
Department of Criminai Justice (the “TDCJ”).See Goti Code Q491.001(a)(3), (5)
(defming, for purposes of title 4, subtitle G of the Government Code, “department”and
“institutionaidivision”). We have been advised by an employee of the TDCJ that money
the director of the institutionaJ division obtains pursuant to section 501.014 is deposited
into the TDCJ’sinmate trust fund, and that money in the TDCJ’s inmate trust fbnd does
not accrue interest.

       Section 501.014 is, therefore, wholly inapplicable to inmates in a county jail or
county wrrectiond facility. We note that sections 351.041(a) and 351.182 of the Local
Government Code make the sheriff responsible for each of these wunty facilities. The
Texas Commissionon Jail Standards (the “wmmiasion”)is authorized to promulgate rules
goveming county jails (including wunty wrrectional fhcilities)under section 351.002 of
the Local Government Code. See u.ku 35 D. BROOKS,CXXJNTY        ANDSPECIALDISTRICT
LAW 8 20.50, at 732 (Texas Practice 1989). Regarding inmates in a county jail, the
commission has promulgated section 265.11 of title 37 of the Texas Administmtive Code
which provides as follows:
               If an inmate is not going to be released, the receiving officer
          shall camfidly record and store such of the inmate’s property as is
          taken from him and issue the inmate a receipt, signed by the receiving
          officer and the inmate, to be.kept in the.inmate’sfile pending release.

See 37 TAX. $8 265.6, 267.5, 269.1(3). No rule discus+ the wxdiscation of property
with regard to bates in a wunty wrrectional facility. We understand that inmates in
such a facility may retain possession of their personal property, including money.

        No statute or rule discusses whether a sherilf may place an inmate’smoney into an
interest-bearing account or invest the money, or whether the sheriff simply may place the
money into a safe place for the duration of the inmate’sstays Bnt see. Attorney General
opinion N-398 (1985) at 3 (stating that inmate’s money remains in sherig’s custody
“where it may be deposited in an account that serves as a depository for all inmates[l]
peraonrdtimds”). Because of the absence of statutory or regulatory diiion, we believe
that each wmty shetiE. in the exercise of his or her discretion, may decide where to place
inmates’money for safekeeping. A sheriff may decide, therefore, to keep the money in a
cash deposit drawer or safe, a safe deposit box, or an account, either interest-bearing or
non-interest-          or, if practicable, to invest the money. We caution, however, that
the she-rig’sdiscretion may be limited by the county auditor, who “may adopt and enforce




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Mr.S.E.Seely     - Page 5                (DIG282)




mgulations, . , that the auditor considers newssay for the speedy and proper wllecting,
checking, and acwunting of the revenues and other funds and fees that belong to the
cowty or to a person. . . for whose use or benefit the [precinct] officer holds or has
received funds.” Local Gov’t Code 5 112.002(b);see Attorney General Opinion M-702
(1987) at 2 (ite     trust account subject to audit by wunty auditor); see ulso
                                                                              LocalGov’t
Code 3 112.001; Attorney General Opinion JM-1162 (1990) at 3 (county auditor could
require clerk to place trust funds in separate accounts).

        Moreover, no statute or rule discusses whether, in the event that the she&Tplaces
an inmate’s money in an interest-bearing account or invests the money, the inmate is
entitled to receive the interest his or her money has accrued, whether the sheriffs
department may receive the interest, or whether the county may receive the interest. In
part, the disposition of the interest depends on whether the sheriff holds the money in trust
for the imnate. If so, the interest is property of and due to the inmate, who is the
benetlciary of the trust timd. See 35 D. BROOKS,supra 5 14.11, at 526. “A wunt$s
wihml wnfiscation of the earned interest [on a trust fund] is an unwnstitutional taking
of property.” Id.;  seeah Harrik       Countyv.sellers, 483 S.WJd 242, 243 (Tex. 1972)
(and cases cited therein). The county may retain an amount reasonably related to the
value of its services in safeguarding and investing the principal, however. See Hurris
CoMty, 483 S.W.2d at 244. You indicate in your letter that the present policy of your
CouDtyis to place the inmates’money into a trust fund. Consequently, except for an
lunountthatthewuntymayretainthatisreasonablyrelatedtothevalueofthew~s
savices in safeguarding and investingthe inmate’smoney, the interest on the money is the
pperty of the inmate and the county must pay it to the inmate.

                                   SUMMARY

               The clerk of a district court may deposit into an account
          separate from the county’sgeneral acwunt cash paid in lieu of a bail
          bond if the court or another authority orders the clerk to do so.
          Because cash paid in lieu of a bail bond is to be held in trust for the
          bailee unless the cash is forfeited. any interest that acc~es on the
          cash during the time it is in the county’s possession belongs to the
          bailee; the county may keep only a portion of the interest in
          accordance with section 117.054 of the Local Government Code.

               The she.rB of a county may decide where to keep inmates’
          money for safekeeping. The sheriffs discretion is liited, however,
          by the county auditor, who may regulate the keeping of inmate iimds
          as necessary for the purposes of wllecting, checking, and accounting
          of revenues and other fimds and fees belonging to an inmate. The
          disposition of any interest that accrues on an inmate’smoney during
          the inmate’s incarceration in wunty jail depends on whether the
          money-is held in trust for the inmate. If so, the inmate is entitled to
          tlk accrued interest, except for an amount reasonably related to the


                                              .,“l
Mr. S. E. Seely - Page 6                 (~~-282)




          vahm of services in safeguard@ and hesting the principal that the
          countymayretain.




                                                      DAN      MORALES
                                                      Attorney General of Texas

WILL PRYOR
Fii Assdmt Attorney Gene&

JORGE VEGA
Deputy Attorney General for Litigation

RENEAHIcKs
State Solicitor




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