,
TEE ATTORNEY GENERAL
OF TEXAS
January 30, 1990
Mr. Pasco Parker Opinion No. ~~-1137
Collin County Auditor
210 South McDonald Street Re: Whether a county auditor
I&Kinney, Texas 75069 may prescribe a weekly revenue
reporting format which requires
certification by an elected
official (RQ-1760)
Dear Mr. Parker:
You ask whether a county auditor may prescribe a
weekly revenue reporting format which requires the notarized
signature of elected county officials. Your question is *
0 prompted by an order of the commissioners court of Collin
County adopted at the request of the county auditor. The
order requires weekly remittances of collections made by the
county tax assessor-collector. The order also authorizes
the aud.itorto prepare a weekly reporting format pursuant to
sections 112;OOl and 114.003 of the Local Government Code.
Your letter suggests that the order of the commis-
sioners court was adopted pursuant to section 31.10 of the
Tax Code:
(a) Each month the collector of taxes for
a .taxing unit1 shall prepare and submit to
the governing body of the unit a written
report made under oath accounting for all
taxes collected for the unit during the
preceding month. Reports of collections made
in the months of October through January are
due on the 25th day of the month following
the month that is the subject of the report.
Reports of collections made in all other
1. A county is included in the definition of the term
"taxing unit." Tax Code 5 1.04(12).
P
p. 5988
Mr. Pasco Parker - Page 2 (JM-1137)
months are due on the 15th day of the month
following the month that is the subject of
the report. A collector for more than one
taxing unit may prepare one report accounting
for taxes collected for all units, and he may
submit a certified copy of the report as his
monthly report to the governing body of each
unit.
(b) The collector for a taxing unit shall
prepare and submit to the governing body of
the unit an annual report made under oath
accounting for a.11 taxes of the unit
collected or delinquent on property taxed by
the unit during the preceding 12-month
period. . . .
(c) - * .[A]t least monthly the collector
for a taxing unit shall deposit in the unit's
depository all taxes collected for the unit.
The governing body of a unit may require
deposits to be made more frequently.
The language of subsection (c) would appear to grant
the commissioners court the authority to adopt the order
requiring the county tax assessor-collector to make weekly
remittances of tax collections. However, a separate statute
appears to specifically address the duty of the county tax
asse'ssor-collectorto make deposits of tax collections in a
manner that conflicts with section 31.10. In order to
demonstrate that section 31.10 is the governing provision, a
review of the second provision is necessary.
Section 113.021(a) of the Local Government Code
provides:
The fees, commissions, funds, and other
money belonging to a county shall be
deposited with the county treasurer by the
officer who collects the money. The officer
must deposit the money in accordance with any
applicable procedures prescribed by or under
Section 112.001 or 112.002. However. the
cou t ta
fl assess0 evosit
the monev in accordance with the vrocedures
prescribed bv or under the Tax Code and other
-.
laws (Emphasis added.)
Section 116.113(b) of the Local Government Code states:
p. 5989
Mr. Pasco Parker - Page 3 (JM-1137)
A county tax assessor-collector shall
immediatelv devosit in the county depository
taxes collected on behalf of the state, the
county, or a district or municipal sub-
division of the county. The taxes remain on
deposit pending the preparation and
settlement of the assessor-collector's report
on the tax collections. (Emphasis added.)
A familiar and well-established rule of statutory
construction provides that when a general statutory
provision and a specific statutory provision are in
conflict, the former provision yields and the latter
prevails. See 67 Tex. Jur. 3d Statutes 5 126 (1989) and
cases cited therein? see also Gov't Code § 311.026 (a
special or local provision prevails over a general provision
in the event of irreconcilable conflict). It would
therefore appear that section 116.113 of the Local
Government Code, giving more specific instructions to the
county tax assessor-collector regarding the deposit of tax
collections, would prevail over section 31.10 of the Tax
Code as it relates to such deposits.
P Section 116.113, however, was enacted as part of the
nonsubstantive revision of statutes relating to local
governments. Local Gov't Code 5 1.001(a). It is derived
from formerV.T.C.S. article 2549,2 which was repealed with
the enactment of the Local Government Code. Acts 1987, 70th
Leg., ch. 149, § 49, at 1306. Section 31.10 was enacted in
1979 as part of Title 1 of the Tax Code, also known as the
Property Tax Code. See Acts 1979, 66th Leg., ch. 841, § 1,
at 2217. Subsections (a)(l), (c), and (d) of section 6 of
the bill enacting the Property Tax Code listed the various
civil statutes which were expressly repealed by the bill:
article 2549 was not among those statutes. Section 6(b) of
the bill, though, provided the following:
All other general, local, or special laws
in conflict with this Act are repealed to the
extent of the conflict, and the failure
expressly to repeal or amend any law in
conflict with this Act is not evidence of a
2. Article 2549, V.T.C.S., set out procedures for
designating the county depository and for placing funds in
P the depository.
p. 5990
Mr. Pasco Parker - Page 4 (JM-1137)
legislative intent that the law not be
repealed.
Id. § 6(b), at 2330.
The language just quoted makes it clear that the
provisions of section 31.10 of the Tax Code supersede
conflicting provisions of article 2549. The enactment of
section 116.113(b) as part of the Local Government Code did
not serve to revive the repealed portion of article 2549.
See Gov't Code § 323.007(b) (when revising a statute the
legislative council, charged with the duty to execute the
permanent statutory revision program, may not alter the
sense, meaning, or effect of the statute). It is therefore
clear that the commissioners court was authorized to adopt
the order reouiring the county tax assessor-collector
make weekly deposits of tax collections. The issue th,':‘
remains is whether the county auditor may require the tax
assessor-collector to file a notarized revenue reporting
form on a weekly basis.
You do not describe the content of the weekly revenue
reporting format and do not disclose whether it is intended
primarily for the use of the county auditor or the commis-
sioners court. Since the order of the commissioners court
is predicated on the authority of sections 112.001 and
114..003of the Local Government Code, which pertain chiefly
to the county auditor, we will assume that the report is
intended solely for use by the auditor.
Section 112.001 of the Local Government Code provides
the following:
In a county with a population of less than
190,000, the county auditor may adopt and
enforce regulations, not inconsistent with
law or with a rule adopted under Section
112.003,3 that the auditor considers neces-
sary for the speedy and proper collecting,
checking, and accounting of the revenues
3. Section 112.003 of the Local Government Code
requires the comptroller of public accounts to prescribe 1)
forms to be used by county officials in the collection of
county revenue and disbursement of funds and 2) the manner
of keeping and stating the accounts of officials.
p. 5991
Mr. Pasco Parker - Page 5 (JM-1137)
and other funds and fees that belong to the
county.
Section 114.003(a) provides:
A county official or other person who is
required under this subtitle [subtitle B of
title 4 of Local Government Code chapters
111-119 and 1301 to provide a revort,
statement, or other information to the county
auditor and who intentionally refuses to
comply with a reasonable request of the
county auditor relating to the revort,
statement, information, commits an
offense. (Emgiasis added.)
In order to fully appreciate the import of these provisions
we must consult other sections of the Local Government Code
relating to county finances and reporting.
Section 114.001(a) of the Local Government Code
provides the following:
Each revert required under this subtitle
[title 4, subtitle B] must be made in writing
and must be sworn to bv the officer making
the report before an officer authorized to
administer oaths. (Emphasis added.)
The county auditor is required under section 114.002 to
determine the time and manner for making reports to the
auditor as required by subtitle B of title 4 of the Local
Government Code. Section 114.001(a), however, applies to
all reports required by subtitle B and not merely to those
that must be submitted to the county auditor. See, e.a.,
Local Gov't Code 55 114.023 (county auditor's monthly report
to commissioners court in a county with population of more
than 225,000), 114.024 (auditor's report to commissioners
court at each regular meeting of court), 114.025 (auditor's
monthly and annual reports to commissioners court and
district judges), 114.042 (report to county clerk by officer
who collects county funds), 114.044 (report to commissioners
court by officer who collects fines, jury fees, or
judgments), 114.045 (district attorney's report to county
clerk relating to county money received since last term of
district court), 114.046 (annual report of county officers
compensated on fee basis), 114.061 (county treasurer's
monthly claims report to county clerk). Likewise, section
114.001(a) would not apply to reports submitted to the
commissioners court or county auditor under provisions of
p. 5992
Mr. Pasco Parker - Page 6 (JM-1137)
the Local Government Code outside of subtitle B of title 4.
See, e.a. ,did 9 152.035(d) (mileage reimbursement to county
auditor or assistants made on basis of sworn monthly expense
report).
Sections 114.001 and 114.002 are to be contrasted with
section 112.005 of the Local Government Code, which requires
the county auditor to maintain accounts for each county
officer authorized or required by law to receive or collect
money that belongs to, or is intended for use by, the
county. Subsection (c) of that provision states:
The auditor shall require each person who
receives money that belongs to the county
to render statem- to the auditor.
iEmphasis added.)
Id. § 112.005(~).4
The distinction between VVreports'land "statements" is
significant because reports which are required by subtitle B
of title 4 of the Local Government Code must be sworn to by
the officer presenting them. 18Statements" that may be
required by the auditor under section 112.005, on the other
hand, apparently need not be delivered under oath.5 There
are several reasons for this conclusion.
Other provisions of subchapter B require the
prepazation or filing of "statement~.~' Section 114.041
requires a district, county, or precinct officer to keep as
part of his official records a *8statementN* of the fees,
commissions, costs, or amounts "earned by the officer" or
received by him as deposits for costs or trust fund
deposits. Section 116.117 requires the county depository to
provide the commissioners court with a "detailed monthly
statement" at each regular term of the court. In addition,
section 114.021, entitled *'County Clerk's Revort to
Commissioners Court at Regular Term," requires the clerk to
maintain and present 'Iatabular statementI*and specifies its
contents. (Emphasis added.)
5. This fact does not relieve the officer who submits
a statement to the county auditor or under whose authority a
statement is submitted of the obligation to ensure the
accuracy and truthfulness of the statement. See Penal Code
!j37.10 (tampering with, falsification of, or unlawful
destruction of a governmental record).
p. 5993
Mr. Pasco Parker - Page 7 (JM-1137)
First, we note that the legislature has demonstrated
that when it intends to require county officers to provide
information under oath, it does so expressly. See, e.a.,
Local Gov't Code 5 152.035(d) (county auditor's sworn
monthly mileage expense report): Attorney General Opinion
v-1309 (1951). Also, the fact that section 114.003 imposes
a criminal penalty for the intentional failure of a county
officer to comply with a reasonable request from the auditor
concerning a "revert, statement, or other information" that
is required under subtitle B indicates that, simply as a
matter of statutory construction, the terms "report" and
*8statement11
are not intended to be synonymous. Questions of
due process would arise under section 114.003 if "state-
ments" were required to be sworn to by the officer rendering
the statement because section 114.001 gives notice only that
"reportsI1must be delivered under oath. A county officer
prosecuted under section 114.003 for failing to submit a
section 112.005 statement under oath could argue that
section 114.003 is unconstitutionally vague because neither
it nor section 114.001 qive fair warning that such conduct
is unlawful. See aenerallv Lanzetta v. New Jersev, 306 U.S.
451 (1939); Tex. Const. art. I, 5 10 (every citizen is
entitled to know the nature of an accusation against him).
0
The relevance of this distinction is demonstrated by
section 114.043 of the Local Government Code, which contains
the following pertinent language:
In a county with a population of 190,000
or more, the county auditor may require a
district clerk, district attorney, county
officer, or precinct officer to furnish
monthly reports, annual reports, or other
reports regarding any money, tax, or fee
received, disbursed, or remaining on hand.
In connection with those reports, the auditor
may count the cash in the custody of the
officer or verify the amount on deposit in
the bank in which the officer has deposited
the cash for safekeeping. (Emphasis added.)
Section 114.043 confirms that the legislature did not
intend section 112.005 statements to be the equivalent of
section 114.001 reports: otherwise, there would have been no
need to enact section 114.043. Under this provision a
county auditor could clearly require a county tax
assessor-collector to file reports -- which under section
114.001 would have to be sworn to by the assessor-collector
-- regarding the receipt of taxes by his office.
p. 5994
Mr. Pasco Parker - Page 8 (JM-1137)
Section 114.043 is equally important because it reveals
the legislature's understanding of the nature of the county
auditor's general powers. That the legislature thought it
necessary to expressly provide county auditors in counties
with populations of 190,000 or greater the powers described
in section 114.043 is significant because, like their
counterparts in counties with fewer than 190,000 inhabi-
tants, they have the power to adopt and enforce regulations
necessary for the speedy and proper collecting, checking,
and accounting of county funds. Local Gov't Code g 112.002.
This office has in the past .interpreted this and other
grants of authority to the county auditor broadly to permit
the auditor to obtain information from county officers that
is necessary to the accomplishment of the auditor's
statutory duties. See. e.a Attorney General Opinion
JM-1099 (1989) and authorities' cited therein. But we have
also rejected attempts by county auditors, through the use
of a reporting requirement, to interfere in matters that are
left to the discretion of other county officers. See, e.a.,
Attorney General Opinion JM-879 (1988) (county auditor could
not require members of commissioners court who receive fixed
monthly travel allowances to file travel documentation).
We have located no similar express grant of authority
to county auditors in counties with populations of less than
190,000. If the legislature deemed the general powers of
the county auditor as inadequate to confer the power
described in section 114.043, then we do not believe the
authority you inquire about may be implied from sections
112.001 and 114.003 of the Local Government Code.
Accordingly, we conclude that the county auditor in a
county with a population of less than 190,000 may lrot
require the county tax assessor-collector to submit
notarized or sworn weekly revenue reports to the auditor
pursuant to sections 112.001 and 114.003 of the Local
Government Code. However, we do believe that the auditor
may require county officers who receive money belonging to
the county to submit unsworn statements under sect'on
112.005 of the Local Government Code in a form and manner
prescribed by the auditor. See Attorney General Opinions
JM-1099 (1989); V-1309 (1951).
SUMMARY
A county auditor in a county with a
population of less than 190,000 may not
require the county tax assessor-collector to
submit notarized or sworn weekly revenue
reports to the auditor pursuant to Local
P. 5995
Mr. Pasco Parker - Page 9 (~~-1137)
Government Code sections 112.001 and 114.003.
The county auditor may require county
officers who receive money belonging to the
county to submit unsworn statements to the
auditor under section 112.005 of the Local
Government Code in a form and manner
prescribed by the auditor.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Steve Aragon
Assistant Attorney General
p. 5996