Untitled Texas Attorney General Opinion

Ausmiw 1,. TEXAS June 29, 1964 Hon. Tom Blackwell Opinion No. C-277 District Attorney Travis County Ret Whether a County Auditor In a Austin, Texas county having a population of 190,000 or more Is authorized and required to audit funds col- lected by a county official, not for the county, but held as an agent or trustee for private Dear Mr..Blackwell: Individuals. Your letter -ofMay 29, 1964~,reads in part as follows: %JESTION~ Is the County Auditor authorized and required to audit funds collected by a county official not for the county but held as an agent or trustee for private individuals. “FACTS : It:has been the custom for many years In the county for Justices of the Peace, County Attorneys and District Attorneys to accept reimbursement on 'hot checks' and to pay it di- rectly to 'themerchants involved without having this fund go through any official county channels and without being audited by the County Auditor." You further .ask for an Interpretation of Article I656a, Vernon's Civil Statutesf~which reads in part as follows: "The Countv Auditor In counties having a OPU- lation of one hundred ninety thousand (190,000P or more according to thelast preceding or any future Federal Census g&jJ, prescribe the system of ac- counting for the county and the forms to be used by the District Clerk the District Attorney and all county and precinct officers and by all persons In the collection and disbursement of county revenues, funds, fee,s,md all other moneys collected,in an officialapacitv whether belonging,to the county, its subdl&slons or precincts; or to, or for the use or benefit of, any person, firm, or corporation; he shall prescribe the mode and manner In which the District Clerk, the District Attorney and all county -1331- Hon. Tom Blackwell, page 2 (C-277) and precinct officers shall keep their accounts, and he shall have the power to require all offi- cers to furnish monthly, annual, or other reports under oath of all moneys, taxes, or fees of every nature received, disbursed, or remaining on hand; and In connection with such reports he shall have the right to count the cash on hand with such officer, or to verify the amount on deposit in the bank In which such officer may have placed the same for safekeeping. He shall have the Dower to adopt and enforce such regulations not lnconslst- tne with the Constitution and laws as he may deem essential to the speedy and proper colle tlon and checklna of and gccountlne:for, the rev&ues and g-fees e n to the countv or to MT De son. firm- or corm ation for whom-v of f d orf her w ose-use ved or m hold such funds. . .. .I' (Emphasis added). The first sentence of the above quoted statute refers to county funds and to "al.1other moneys collected in an official capacity. . .'I The case of Nueces Countv v. Currinston, 139 Tex. 297, 162 S.W.2d 687 (1$t2)2 to which we may refer for help In de- fining "official capacity, held that "a fee.paid a public officer for the performance of a duty enjoined by statute is a fee col- lected In an official capacity." There Is no statutory requirement or authority in Texas for the collection by a county official of money to cover "hot checks," with subsequent payment directly to the payee of the check. Such a collection, therefore, would not be done In an "official capacity," the words "official capacity" re- ferring to the status of an official when performing an act under statutory duty, but such collection would be received under color of authority by virtue of his office. In light of the foregoing, it Is the opinion of this of- fice that the mandatory provisions contained In the first sentence of the above Article 1656a do not apply to funds collected by a county official as an agent or trustee for private individuals, and that the County Auditor Is not required to audit such funds. The last sentence of that part of Article 1656a above quoted specifically covers revenues and other funds and fees be- longing to '*anyperson, firm, or corporation for whom any of said officers may have made collections, or for whose use or benefit they may have received or may hold such funds." The act states that the County Auditor shall have the 18power18 to adopt and enforce regu- lations pertinent to the collection and checking of and accounting -1332- Hon. Tom Blackwell, page 3 (C-277) for, such funds. Should a county official, in an official capa- city with statutory authority or under color of authority by virtue . of his-office, receive _.. or collect f?ds not belonging . to the county, tne county auditor by vlrtue OS such power glVen to that office in the provision stated, does have the authority to audit funds so collected, not for the county, but held by the official as an agent or trustee for private Individuals, firms or corporations. The provision in Article 1656a concerning the deposit and custody of such funds is covered by a previous opinion of this department, No. WW-86 (1957). SUMMARY A County Auditor, In a county having a popula- tion of 190,000 or more, is authorized, but not re- quired, to audit funds collected by a county official, not for the county, but collected or received under color of authority by virtue of his office, and held as an agent or trustee for private individuals, firms or corporations. Yours very truly, WAGGONER CARR Attorney General BY Edward P. Bolding EPB:wb Assistant APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Hawthorne Phillips Pat Bailey Paul Phy W. 0. Shultz APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone -1333-