Untitled Texas Attorney General Opinion

THEATTORNEY GENERAL. OFTEXAS Honorable Henry Wade Opinion No. C-326 District Attorney Dallas, Texas Re: Use of the change fund created by the provisions of Article 1630b, V.C.S., by county officials, and Dear Mr. Wade: related questions. Your request for an opinion on the above subject matter asks the following questions: "1. Is the law violated, and if so what is the penalty, when a valid county warrant, payable on demand, is cashed by a public em- ployee or official out of a duly authorized change fund? "2 . Is the law violated, and if so what is the penalty, when a valid county warrant, payable on demand, or otherwise, is cashed by a public employee or official out of receipts of a county office for taxes, fees, sales, services, rentals, deposits or other purposes? "3. Is the law violated, and if so what is the penalty, when a valid county warrant, payable on demand or otherwise, is cashed by a public employee or official out of his per- sonal ,funds? "‘4 . Is the -law violated, and if so what is the penalty, when a personal check or draft of an employee, the official or another person, is cashed by a public employee or official out of a duly authorized change fund? "5. Is a law violated, and if so what is the penalty, when a personal check or draft of an employee, the official or another person, is cashed by a public employee or official out of receipts of a county office for taxes, fees? sales, services, rentals or other purposes?' -1556- Hon. Henry Wade, page 2 (C-326) Article 1630b, Vernon's Civil Statutes, provides: "Section 1, The Commissioners Court of any county having a population of over six hundred thousand (600,000) by the last preced- ing Federal Census may.set aside from the gener- al fund an amount not to exceed One Thousand Dollars ($1,000) for the use of any county or district official collecting public funds as a change fund which said fund is to be used only for making change in connection with collec- tions due and payable to the county, the State of Texas or any political subdivision for which collections are lawfully made by said county or district official. "Sec. 2. The bond of each and every public official who receives such a change fund shall cover his responsibility for the correct account- ing and disposition of said change fund. "Sec. 3. It shall be unlawful to use such change fund for making loans or advances, or for cashing checks or warrants of any kind. "Sec. 4. The Commissioners Court shall with- in its discretion have the right to recall an? part or all of said change funds at any time. The provisions of Article 163Ob, above quoted, are appll- cable to Dallas County since Dallas County has a population of 927,609 inhabitants according to the last preceding Federal Cen- sus . Under the provisions of Article 1630b, the Commissioners Court of Dallas County is authorized to set aside from the gener- al fund an amount not to exceed $l,OOO.OO for the use by any county or district official collecting public funds, as a change fund. Section 1 of the Act specifically states that the change fund is to be used only for making change in connection with col- lections due and payable to the county, State or any political subdivision. Section 3 of the Act specifically prohibits the mak- ing of loans or advances, and it specifically prohibits cashing checks or warrants of any kind. Section 2 of the Act requires that every public official who receives such a change fund shall cover his responsibility for the correct accounting and dlsposi- tlon of said fund by a bond. In answer to your first question, you are therefore advis- ed that the cashing of a county warrant by a public official out -1557- Hon. Henry Wade, page 3 (c-326) of the change fund constitutes a violation of the provisions of Article 1630b. No specific penalty is provided in the Act for its violation; however, the surety and the public official on the bond prescribed by Section 2 of Article 163Ob would be liable if a loss occurs through a violation of the provisions of Article 163Ob. Article 2551, Vernon’s Civil Statutes, provides for the se- lection of county depositories. Article 2552 provides that it shall be the duty of the county degository to pay upon presentment at the county seat of the county all checks or warrants drawn by the county treasurer upon the funds of said county deposited in the said depo&itory as long as such funds shall be in the possession of such depository subject to such checks or warrants. Article 2554, Ver- non’s Civil Statutes, provides in part: "It shall be the duty of the county treas- urer upon the presentation to him of any war- rant, check, voucher, or order drawn by the proper authority, if there be funds sufficient for the payment thereof on deposit in the ac- count against which such warrant is drawn, to endorse upon the face of such instrument his order to pay the same to the payee named~there- in and to charge the same on his books to the fund upon which it is drawn. , . .” County warrants are required to be cashed in the manner pre- scribed by the provisions of Articles 2552 and 2554, and we know of,no statutory provision authorizing other county officials to cash county warrants. On the contrary, Section 61 of Article XVI of the Constitution of Texas requires that the officials covered by your request be compensated on a salary basis and further re- quires that all fees earned by county officials shall be paid in- to the county treasury for account of the proper fund. Wichita County v. Robinson, 155 Tex. 1, 276 S.W.2d 509 (1955). In construing the provisions of Article 2554, Vernon’s Civ- il Statutes, it was held in Attorney General’s Opinion V-1343 (1951): “The county treasurer is not authorized to draw a check upon the county depository and take up a warrant drawn by the proper authority. It is the duty of the county treasurer to endorse the warrant as prescribed by Article 2554 and deliver it to the payee, and the payee should present the warrant to the depository for pay- ment. Att’y Gen.Op. O-4462 (1942). Further, -1558- Hon. Henry Wade, page 4 (C-326) there is no express or implied authority ,for the county treasurer to withdraw moneys from the jury fund in the county depository." A similar conclusion was reached in Attorney General's Opinion ~-675 (1959) concerning disposition of fees received by the county tax assessor-collector for performing assigned duties and for assessing and collecting taxes for an Independent school district. It is our opinion that the principles of law governing disposition of fees of office are equally applicable to other of- ficial receipts of a county office and that all receipts must be deposited in the proper fund. Therefore, you are advised that the cashing of a county warrant out of receipts of a county office is not authorized. Whether a violation of the penal laws of the State of Texas occurs in cashing of a county warrant by a county official is dependent upon facts which are not presented in your request, e.g., did such act result in a loss to the county; was there a misappro- priation of public monies to private use; did the county official become in any way Interested in the county warrant, in violation of Article 371, Vernon's Penal Code. The answers to these ques- tions are dependent upon other facts not stated in your request. The conclusions reached with reference to a county warrant would be equally applicable to cashing of a personal check or draft, with the exception thatthe provisions of Article 371 would not normally be applicable to personal checks. You are therefore advised that cashing of county warrants and personal checks out of receipts of a county office is not authorized. Any loss resulting from such acts could be recovered on the county official's bond. Whether such acts constitute a violation of the Penal Code is de- pendent upon facts not stated in your request. SUMMARY County warrants cannot be cashed by a public employee or official out of a duly au- thorized change fund; neither can countv war- rants or personal drafts be ca.s,hed, out of the receipts of a county office. Yours very truly, WAGGONER CARR Attorney General John Reeves JR:ms y Assistant -1559- Hon. Henry Wade, page 5 (C-326) APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Gordon Cass Malcolm L. Quick Brady Coleman V. F. Taylor APPROVED FOR THE ATTORNEY GENERAL By: Roger Tyler -1560-