The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Honorable Britt Plunk opinion NO. ~~-584
Supreme Court Building
P. 0. BOX 12546
Hardin County Attorney
Austin, TX. 78711. 2548 P. 0. Box 516 Re: Duty of County Attorney
512/475-2501 Kountze, Texas 77625 to report collection and dis-
Telex 9101874-1367 bursement of funds collected
Telecooier 5121475-0268 pursuant to article 53.08 of
the Code of Criminal Procedure
1607 Main St., Suite 1400
Dallas, TX. 75201-4709 Dear Mr. Plunk:
2141742.8944
You have requested our opinion regarding the duty of a county
4824 Alberta Ave.. Suite 160
attorney to report the collection and disbursement of funds collected
El Paso, TX. 79905.2793 pursuant to article 53.08 of the Code of Criminal Procedure. That
9151533.3484 statute provides, in pertinent part:
(a) A county attorney... may collect a fee if
1220 Dallas Ave.. Suite 202
Houston, TX. 77002.8986
his office collects and processes a check or
713/650-0666 similar sight order if the check or similar sight
order:
806 Broadway. Suite 312
(1) has been issued or passed in a manner
Lubbock, TX. 79401.3479
806~747.5238
which makes the issuance or passing an offense....
. . ..
4309 N. Tenth, Suite S
McAllen, TX. 78501-1885
(e) Fees collected under this article shall be
5121682-4547
deposited in the county treasury in a special fund
to be administered by the county attorney....
200 Main Plaza, Suite 400 Expenditures from this fund shall be at the sole
San Antonio. TX. 782052797 discretion of the attorney, and may be used only
5121225-4191
to defray the salaries and expenses of the
prosecutor's office, but in no event may the
An EqualOpportunityi county attorney... supplement his or her own
Affirmative Action Employer salary from this fund. Nothing in this Act shall
be construed to decrease the total salaries,
expenses, and allowances which a prosecuting
attorney's office is receiving at the time this
Act takes effect.
You ask whether any of the following reporting statutes are
applicable to funds collected pursuant to article 53.08:
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Honorable Britt Plunk - Page 2 (m-584)
,Whenever a district or county attorney has
collected money for the State or for any county,
he shall within thirty days after receiving the
same, pay it into the treasury of the State or of
the county in which it belongs, after deducting
therefrom and retaining the commissions allowed
him thereon by law. (Emphasis added).
V.T.C.S. art. 335. Language in article 335 which authorized the
county attorney to retain commissions was repealed by the enactment of
provisions establishing the officers' salary fund. Tex. Const. art.
XVI, 961; V.T.C.S. art. 3912k, 85.
On or before the last day of August of each
year, each district or county attorney shall file
in the office of the Comptroller or of the county
treasurer, as the case may be, a sworn account of
all money received by him by virtue of his office
during the preceding year, payable into the State
or county treasury.
V.T.C.S. art. 337.
The district attorney of each district shall,
at each term of the district court for each county
in his district, make a report to the county
clerk, of all moneys received by him since the
last term of the district court for such county
for the use of such county. Each county attorney
shall make a similar report to the said clerk at
the end of each month. (Emphasis added).
V.T.C.S. art. 1620.
Each district, county and precinct officer
shall keep a correct statement of all fees earned
by him and all sums coming into his hands as
deposits for costs, together with all trust funds
placed in the registry of the court, fees of
office and commissions in a book or in books to be
provided him for that purpose, in which the
officer, at the time when such deposits are made
or such fees and commissions are earned and when
any or all of such funds shall come into his
hands, shall enter the same; and it shall be the
duty of the county auditor in counties having a
county auditor to annually examine the books and
accounts of such officers and to report his
findings to the next succeeding grand jury or
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. .
Honorable Britt Plunk - Page 3 (MW-584)
district court. In counties having no county
auditor, it shall be the duty of the
Commissioners' Court to make the examination of
said books and accounts or have the same made and
to make report to the grand jury as hereinabove
provided. (Emphasis added).
V.T.C.S. art. 3896.
All officers charged by law with collecting
money in the name or for the use of the State
shall report in writing under oath to the
respective district courts of their several
counties, on the first day of each term, the
amounts of money that have come to their hands
since the last term of their respective courts
aforesaid.
Code Crim. Proc. art. 1001.
Article 337 is clearly applicable to the funds about which you
inquire: they constitute "money received by [the county attorney] by
virtue of his office [and] payable into the State or county treasury."
They also constitute "fees earned by" the county attorney for purposes
of article 3896. Articles 335 and 1620, as well as article 1001 of
the Code of Criminal Procedure, are applicable if article 53.08 funds
are collected "for the State or for any county," (article 335), "for
the use of such county," (article 1620), or "in the name or for the
use of the State," (article 1001).
In Attorney General Opinion MW-188 (1980). we said that article
1656a. V.T.C.S., which authorizes a county auditor to prescribe
accounting procedures, is applicable to funds collected under article
53.08. The opinion emphasized the fact that article 53.08 accords to
the prosecuting attorney "a limited statutory discretion to determine
the purpose for which expenditures from the fund are to be made." It
does remove these funds from the statutory reach of the county
auditor.
Likewise, we believe that, although article 53.08 permits a
county attorney to determine, within certain limitations, the purposes
for which the funds may be expended, it does not convert them into
non-public funds. Indeed, the statute specifies that the funds may be
used "only to defray the salaries and expenses of the prosecutor's
office," inarguably a public purpose. Cf. Attorney General Opinion
MW-439 (1982). Funds collected by a publicagency and used for public
purposes are clearly public funds. See Texas Pharmaceutical Ass'n v.
Dooley, 90 S.W.2d 328 (Tex. Civ. App. - Austin 1936, no writ). We
conclude that such funds are collected for the use of the state and
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Honorable Britt Plunk - Page 4 (m-584)
county, and as a result, that articles 335, 1620, and 1001 are
applicable thereto. Thus, a county attorney is required to report the
collection and disbursement of all funds collected pursuant to article
53.08 of the Code of Criminal Procedure, in accordance with the
directives of articles 335, 337, 1620 and 3896, V.T.C.S., and article
1001 of the Code of Criminal Procedure.
SUMMARY
A county attorney is required to report the
collection and disbursement of all funds collected
pursuant to article 53.08 of the Code of Criminal
Procedure, in accordance with the directives of
articles 335, 337, 1620 and 3896, V.T.C.S., and
article 1001 of the Code of Criminal Procedure.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
David Harris
Jim Moellinger
Bruce Youngblood
p. 2171
Untitled Texas Attorney General Opinion
Combined Opinion