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
P. 5351