The Attorney General of Texas
JIM MAlTOX December 19. 1985
Attorney General
Supreme Court Suildlng HonorableLloyd Crtss OpinionNo. JM-397
P. 0. BOX 12548
Austin, TX. 78711.2548
chairmen
512l4752501 Committeeon Labor and Re: When a county treasureris
Telex 9101874-1367 EmploymentRela:ions requiredto deposit funds under
Telecopier 51214750286 Texas House of Rep,cesentatives article 1709a. V.T.C.S.. and
P. 0. Box 2910 related questions
714 Jackson, Suite 700 Austin, Texas 78'169
Dallas. TX. 7520245Oa
214742.8944 Dear RepresentativeCriss:
You ask several questions about the 1985 amendment to article
4824 Alberta Ave.. Suite 180
El Paso, TX. 7990~2793 1709a, section 2, 'T..T.C.S.
That provisionnow reads as follows:
915/53xua4
The County Treasurer in each county of this
state shall receive all moneys belonging to the
v-4 Texas, suite 700
county fr'omwhatever source they may be derived.
Ho”, TX. 77W2.3111
71312235886
SC6 Broadway, Suite 312
Lubbock, TX. 79401.3479
8061747.5238
4309 N. Tenth, Suite B
McAllen, TX. 78501-1885
51218824547
200 Main Plaza. Suite 400
San Antonio, TX. 782052797
512/225-4191 Acts 1985. 69th Le,g..ch. 145, at 766 (underlinedlanguage added by
S.B. No. 449).
An Equal Opportunity/
Afflrmatlve Action Employer You request clarificationof the following issues raised by the
languageadded to article 1709a, section 2:
1. 1s the phrase 'seven business days' in-
tended t) be the usual prescribed practice or a
grace period without penalty? It would seem that
every efEort should be made by each fee officer
affected to deposit funds by the next business
day. Tke extension of 'seven business days,'
p. 1817
HonorableLloyd Criss - 2 (JM-397)
therefore,would be a grace period to allow for
extenuatingcircumstances.
2. Is a 'pcpulation under 50,000,' to be
determinedon the basis of the last federal census
or by use of som other numbers? Often, statutes
utilizingpopulationreferencesincludethe phrase
'accordingto th'zpreceding federal census.' As
this phrase is not contained in article 1709a as
amended, quest1or.s
have arisen as to what popula-
tion figures are to be used to comply with this
legislation.
3. Does the phrase 'thirtydays' mean calendar
or business days;? As the statute reads 'seven
business days' and 'thirty days' written in the
same paragraph,d,twould seam that 'sevenbusiness
days' means spe&ificallyworking days and that
'thirty days' cold therefore refer to thirty
sequentialcaleni,a,r
days.
The statute says that a county officer shall deposit funds "not
later than the next regu1e.rbusiness day after the day on which the
funds are received,but in no event shall depositsbe made later than
seven business days after receipt of said funds." You ask what the
effect of that languagewould be, but you do not put your question in
the context of any particularcircumstances.
Statutes prescribing the time for performance of a duty by a
public officer are genemlly held to be directory rather than
mandatory,even though the statuteuses the word "shall." Chisholmv.
Bewley Mills, 287 S.W.2d 943 (Tex. 1956). A duty set out in a
directory statute may be effectivelyand validly performed after the
time prescribed for performance has passed. See Kessler v. Texas
Employers'InsuranceAssoc:~*, 421 S.W.2d 133,137 (Tex. Civ. App.
- Eastland 1967, writ ref'c.n.r.e.).
We assume, however, that you are concerned about the point at
which a county officer mig!HIbe subject to criminalpenaltiesor to a
writ of mandamus for failure to deposit funds with the county
treasurer, rather than whether a county officer can validly deposit
the funds after a certain date. See Turner v. Pruitt, 342 S.W.2d 422
(Tex. 1961) (mandamuslies to corn3 performanceof ministerial duty
by government officer); Penal Cobe 5-39.01(defines the offense 0;
"officialmisconduct"as the willful violation of any law by a public
official); see also V.T.C,S. art. 339 (county attorney or district
attorney shall institute proceedings against any officer entrusted
with collectionor safekeepingof public funds who fails to discharge
his duties in connectionwith such funds).
p. 1818
HonorableLloyd Criss - 3 t:JM-397)
The phrase you ask about appears to contradictitself. First, it
directs county officersto d.epositfunds on the first regularbusiness
day after receipt. Then it directs them to do so within seven
business days after receipt. The original bill introduced in the
Sixty-ninthLegislaturesimply said that an officerwho receivesfunds
shall deposit them on the next regular business day after receipt.
S.B. No. 449, 69th Leg. (1%5) (as originallyintroduced). The clause
that refers to the seven-day time period was added later in the
legislativeprocess. H.J. of Tex., 69th Leg., Reg. Sess. 2269 (May
15, 1985) (Housecommitteesubstitutefor S.B. No. 449).
The legislativehistory of S.B. No. 449 leads us to concludethat
the legislaturewas unwilling to enact a statute that would have
allowed county officers ori1.yone day in which to deposit funds with
the county treasurer. Thus we construe the amendment to mean that
county officialsshould deposit funds on the first day after receipt,
if possible, but that f;%:ilure to deposit funds with the county
treasurer would not be a violation of a clear statutory duty until
seven business days after the county officialin questionhad received
the funds.
Your second question is whether the determinationof a county's
populationfor purposes of article 1709a is to be made on the basis of
the last federal census or on some other basis. Article 1709a does
not state how a commiss:toners court is to determine a county's
population. Nor is there nn applicablegeneral statute. Cf. V.T.C.S.
art. 5429b-2, §1.04(3) (fcr purposes of code provisionsTpulation"
is that sham by last federal census).
It is implicit in the grant of power to commissionerscourts,
however, that a commissiox~ers court may determine the population of
the county it governsby any reasonableand suitableprocedure. city
of Tyler v. Tyler Building i4Loan Association,81 S.W. 2 (Tex. 1904);
-see Attorney General OpiELon w-1491 (1962). In the absence of
unusual circumstauces,the last federal census would be a reasonable
method of determiningthe I,opulation of a county.
Your third question concernsthe provisionin article 1709a that
permits commissionerscourts in counties with a population of less
than 50,000 to extend ihe time period during which funds receivedmay
be deposited "up to 30 dag!sfrom the time said funds are received."
You ask whether this mea'x130 business days or 30 calendar days.
Previouslyin the same provision the legislaturetwice used the term
"businessdays." Consequently,we think that the legislature'schoice
of the phrase "30 days" mulctbe read as 30 calendardays.
SUMMARY
A county offi,cial'sfailure to deposit county
funds with the county treasurerwithin seven days
p. 1819
.
RonorableLloyd Criss - 4 UM-397)
?
of the county official's receipt of such funds
would be a violation of his statutory duty.
V.T.C.S. art. 1709.~.
In determiningthe population of a county for
purposes of article 1709a. a commissionerscourt
may use any reasonableand suitablemethod.
The phrase "30 days" in article 1709a means
calendardays, not business days.
JIM MATTOX
AttorneyGeneral of Texas
JACKHIGHTOWRR
First AssistantAttorneyGeneral
MARY KELLER
ExecutiveAssistantAttorney General
ROBERT GUY
SpecialAssistantAttorneyGeneral
RICK GILPIN
Chairman,Opinion Committee
Preparedby Sarah Woelk
AssistantAttorney General
p. 1820