‘
THEA~ORNEYGICNERAI~
OF TEXAS
AUSTIN. T-s 78711
The Honorable Jim Sharon Bearden Opinion No. H- 360
Orange County Attorney
Orange Courthouse Re: Liability of district
qrange, Texas 77630 clerk for disappearance
of trust funds.
Dear Mr. Bearden:
Your letter requesting our opinion reads:
I have been asked by the District Clerk and the
County Auditor for an opinion from your office
on the following question:
Is the District Clerk liable for trust funds
(child support monies) that have mysteriously
disappeared?
On about January 3, 1974, $500100 in cash of child
support money came up mysteriously missing. .,There
is -no evidence indicating that any of the deputy district
clerks assigned to the child support office were in-
volved in the disappearance.
You summarize:
1. Is the district clerk personally liable for funds
that have mysteriously disappeared that were in her
possession in trust?
2. If it can be established that this money was stolen
by an outsider without fault on the part of the district
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,
The Honorable Jim Sharon Bearden page 2 (H-360)
clerk, would the district .clerk be liable personally
for such funds?
We understand from your letter that we are to assume the funds
were paid into the Registry of the District Court and came into the construc-
tive or actual possession of the Clerk at some time. The brief accompany-
ing your request sets out the applicable statutes and ably reviews the
authorities as follows:
Article 2558a, Sec. 9, V. T. C.S., states:
The County and District Clerks shall not be
responsible for any loss of the Trust Funds
through failure or negligence of any depository,
but nothing in this Act shall release any County
or District Clerk for any loss resulting from
any official misconduct or negligence on his part
nor from any responsibility for’ such Trust Funds
until a depository shall be selected and the funds
deposited therein nor for any misappropriation of
such funds by him. Upon the deposit in the legally
selected depository of the Trust Funds by any
County of District Clerk, such Clerk shall there-
after be relieved of the safekeeping of said funds.
Article 2290, V. T. C. S. says:
The officer having custody of any money, debt, script,
instrument or writing, or other article paid or
deposited in court during the progress of any~cause
to abide the result of any legal proceeding, shall
seal up in a secure package the identical money or
other article so received and deposit it in some
safe or bank vault, keeping it always accessible and
subject to the control of the court; and he shall also
keep in his office as a part of the records thereof a
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The Honorable Jim Sharon Bearden page 3 (H-360)
correct itemized statement of such deposit, on
what account received, and the disposition made
of the same. When his term of office expires,
such officer shall turn over to his successor all
of such trust funds and other property and the
record book thereof, taking his receipt therefore.
This article shall not exempt any officer or his
surety from any liability on his official bond for
any neglect or other default in regard to said
property.
In 47 TEX. JUR. 2d, Public Officers, Sec. 136, p. 175, it says:
An officer who is the custodian of public money does
not occupy the position of a mere bailee for hire, who
is responsible only for such care of the money as a
prudent man would take of his own; nor is he a “debtor”
to the County within the ordinary meaning of the term,
since if he were, the money would be his property and
he could not be guilty of misapplying it as the offense
is defined in the Penal Code. He is bound to account
for and pay over the money to the person entitled, less
his commissions, or his sureties must pay it for him;
and neither he nor his sureties are relieved from
liability by the fact that the money was stolen without
his fault . . . .
You have also cited to us Harllee v. State, 18 S. W. 2d 1091 (Tex. Civ.
APP. --Waco 1929), in which the court said that the Clerk of the district
court and his sureties were liable for money deposited in the registry of
the court for minors, notwithstanding the unauthorized attempt to pay the
minor’s father, and Lq-ham V. Dies, 98 S. W. 897 (Tex. Civ. App. 1907)
a suit in which the district clerk had deposited money in a safe that was
supposed to be burglar-proof. Burglars later proved thatthis was not the
case and the court held the district clerk liable.
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I
.
The Honorable Jim Sharon Bearden page 4 (H-360)
We believe the statutes and cases you cited support affirmative
answers to your questions. Also see Lawyers Surety Corp. V. Reina,
483 S. W. 2d 911 (Tex. Civ. App. -- Amarillo 1972, writ ref. n. r. e.),
and Co1 v. Force, 50 S. W. 616 (Tex. Civ. App., 1899, writ ref.);
Attorney General Opinion M-1198 (1972).
In our opinion the duty of the clerk to account for the money is
absolute..
SUMMARY
The duty of the District Clerk to account for child
support money paid into the Registry of the Court is
absolute, and the Clerk is liable for its mysterious
disappearance prior to its deposit in the official
depository therefor.
Very truly yours,
Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
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