HE OBEY GENERAL
OF TEXAS
Honorable W.P. Herms, Jr.
County Auditor
Wailer County
Hempstead, Texas
Dear Sir: Opinion No. o-6459
Re: Construction of Article 1636---
Duty of Commissioners to count
cash in County Depository and
related questions.
We have your request for an opinion on the above matter,
said request being as follows:
"Each month the County Treasurer makes a
report to the Commissioners' Court, filing same
with me as County Auditor. With the Treasurer's
report of Receipts, Disbursements, and balances,
is included the~bank statement, issued.bg Citi-
zens~state Bank, County Depository. I, as Audi-
tor, reconcile said bank statement with the
Treasurer's Report, and then In turn reconcile
the Treasurer's report with my records. I then
attach to the Treasurer's report a detailed ex-
planation and analysis of these reconciliations,
showing my balances, reconciled with Treasurer's
balance, and in turn reconciled with the Bank
Statement of County Depository. County Treasur-
er submits her report to the Commissioners Court,
through me, under affidavit,,that same Is correct,
and I, in turn certify to the Court that same is
correct.
"However, at the regular meeting in February,
County Judge refused to approve said reports be-
cause Commissioner's Court had not complied with
Article 1636 R.C.S. which follows:
" 'Arte 1636 s TO INSPECT TREASURER'S ACCOUNTS.
--When the Commissioners' court has compared and
examined the quarterly report of the treasurer,
and found the same correct, it shall cause an
order to be entered upon the minutes of the court,
stating the approval thereof, and reciting sepa-
Honorable W, P. Herms, Jr,, page 2 o-6459
ratelg the amount received and paid out
_- of each
fund by the treasurer since the prececUngtrea-
surer's quarterlg.report, and the balance of
such fund, If any, remalnlng ln the treasurer's
hands and the courtshall cause the proper credit
to be made in the accounts of the treasurer, In
accordance with said order. Said court shall
actually inspect and count all the-actual cash
and assets in the hands of the treasurer belong-
ing to the county at the time of the examination
of his said report. Prior to the adjournment of
each regular term of thencourt, the county judge
and each commlssloner shall make a'ffidavltthat
the requirements of this article have been in
all things fully complied with bg'them at safd
term of said court and that the cash and other
assets mentioned in said county treasurer's
quarterly report made, by said treasurer to said
court, and held by him for the county, have been
fully inspected and counted by them giving the
amount of said money and other assets in his
hands. Such affidavits shall be filed with the
county clerk and recorded In the minutes of said
court the term at which the same were filed; and
the same shall be published in some newspaper
published in the county, if there be a newspaper
published in the county, for one time.'
"Since neither County Judge nor County Auditor
is an attorney, we need an interpretation regard-
ing this statute.
"From the practical standpoint, the amount of
cash on hand in The Citiiens State Bank, County De-
pository, is far less than the $100,000 as shown
on Depository statement, since this amount far ex-
ceeds the cash reserve requirements for a bank of
this size.
"Therefore, my questions are the following:
"1 . Is Commissioners Court required to actu-
ally count cash in County depository; before ap-
proving Treasurer's or Auditor's reports?
"2 * Is depository statement-- i.e, bank state-
ment-- issued by such depository bank sufficient.
evidence to justify Commlsslonerh Court In approv-
ing said reports on the basis of such statement,
or can said statement be used in lieu of actually
count@ cash?
Honorable W.P. Herms, Jr., page 3 o-6459
“3 . My third question arises from the refusal
of Commissioner's Court to either approve or re-
ject County Treasurer's or County Auditor's re-
port.
"This refusal is equivalent to an lmpllcatlon
that 'OUP house is not In order'. Just what steps
do I, as Auditor, have the authority to take In
demanding some actlon on this matter by Commisslon-
ers Court?
"If possible, I shall greatly appreciate your
opinion on these matters before our ne~xtCommis-
sioners Court meeting on March 12, 1945.
Article 1636 of Vernon's Annotated Civil Statutes; to
which you refer, was passed in 1897. Under the County Deposi-
tory Law, Title 47, Chapter 2, Articles 2544--2558, Vernon's
Annotated Civil Statutes, which was passed in 1905 and which
has been amended at various ,timessince it was orlglnallg
passed, It is made the duty of the County Treasurer, immedlate-
lg upon the selection of a County Depository, to transfer to
said Depository all of the funds belonging to the county, and
the bond of such County Depository shall stand as security for
all such funds. Since the passage of said'County Depository
Law, the provisions of A~tiela 1636 requiring the Commissioners'
Court to actually inspes% and count all of the actual cash and
assets in the hands of the Co,untyTreasurer belongingto the
,county'fsno longer in effect9 therefore,syour first question
is answered in the negative,
ArSicie 2554 of Vernon's Annotated Cfvil Statutes re-
quires the County Depository to make to the Commissfoners'
Court monthly statements at each regular term of safd court
showfng the daily balances to the credit of each of the funds
on deposft, ‘Accordingiy; ft fs our opfnfon, in answer to
your second question, that the Commfssionerss Court fs author-
ized to consfder the bank's sba%emen%s Issued by the Deposi-
tory Bank as evidence upon which to base Its action in approv-
ing the County Treasurer's and County Auditor's reports as to
the cash on hand, but, whether OP not such statements would
be sufficient evidence in themselves to justify the approval
of such reports in all respects, we are no% able to say as
such statements might not reflect all the information necessary
for the court to pass on all ma%ers covered by said reports.
We understand from your request that the Commissioners'
Cour% refused to approve the County TPeasur&s and County
Honorable W. P. Herms, Jr., page 4 O-6459
Auditor's reports because they had not actually inspected and
counted all of the actual cash and assets In the hands of the
County Treasurer belonging to the county. Therefore, we do
not answer your third questlon, since the Commissioners' Court
will likely now be wil~llngto pass upon said reports.
~Trusting that this satisfactorily answers your inquiry,
we remain
Very truly yours
ATTORNRY GRWRRAL OF TFXAS
By s/Jas. W. Bassett
Jas. Wi Bassett
Asslstant
JWS:mp:wc
APPROVED MAR 20, 1945
s/Grover Sellers
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/MiR Chairman