Untitled Texas Attorney General Opinion

, 291 ‘OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN GR~“~~ SELLERS i *,,~*N~v QLMCRAL . i. .;:. gonorable Mwrell L Buckaer, Chairman &me, Fish and Oyster Couuniasloa *A+-q union Terminal Stat Ion Dallas, Texas Deer s!r i ‘. on from you as to the method of how handle ~ioneg collect c on at Austin.” utsct that ve are con- the Com~I.ssiou The duties of the Sam and fish wardens with re- Bpcct to funds collected for liccnsas ore not set out in a single provision of the statute but such provlstons as HO do have appear as a part of the act providing for the particular license involved. Articles 923 qa, Scctiou 3; 934 a, Section 8; 93’1 b, Section 7; V.A.P.C., and Article hOj2a, Section 2, *. Doao~ble Murrell L. Buckner; pa&e 2 . Vernon’s Annotated Civil Statutes, These provisions are in substantial agreement end require the warden to remit all moneys collected to the Commission et AUstln ‘Zor deposit in the State Treasury. Articles 923 qe, Section 3, end 934 e scctlon 8, V.A.P.C., require that the renittance be made ‘be- fore the 10th day of the month following the sale of such license.’ Article 934 b, SeCtiOn 7, V.A.P.C., specifies the time of remittance as ‘not later than the tenth day of the month following their collection.R Article 4032a, Section 2, V.A.C.S., sets the remittance date at “on or before the 10th day of the month next succeeding that during which said li- cense was issued.” We think that Article 4025 V.A.C.9 (Acts 1913, p. 297; Acts 1923, 2nd C.S., p. 61), insofai’as the same would require weekly remittences of license fees collected under the fish and oyster lews along the coast, has been repealed by the subsequently enacted special provisions cited above. 39 Tex. Jur . 139; 39 Tex. Jur. 150. Thus we think the warden complies with the governing statutes on re- mittance dates If he sends the license Sees to the Commission by the tenth of the month followiw their collection. Such provisions, th.ough complied with, still leave the warden at e loss as to the proper method of handling the funds during the period of time pending remittance, which, as to some of the fees, might be thirty or forty days. During such period he is the custodian of public funds and as ue understand It, though charged riith their safe kccplng and transmission, he does not have available e safe or vault for 8uch purpose. Furthermore, the Commission is not author- ized by law to designate depository banks for its funds, but is charged with the duty of placing than in the State Treas- ury. In view of this situation may the warden utilize pre- sent day methods cormnon to all commercial transections? Hay he accept checks for licenses, deposit them for collection end deposit funds in cofiimercia.1 banks for safekeeping and trausnisslon to Austin? Or, on the other hand, in this day Of deposit Insurance and rapid transfer of credits, Is he relegated to the backl.loods method of cradling the State’s money in his boot or a money belt until remittance day rolls around? In this connection let us consider the liability of the wardsus as public officerc vlth respect to these funds. In 34 Texas Jurisprudence, at pa&e 4’74, It IS stated that: .. Roaofoblc hrrbll L Buckner,. pogo 3 I ;’ ‘An otflcer who is the custodinn of public money doca +ot occupy the position of a mere bailee for hire, vho la responsible only for such cere of the money~as a prudent rne~ vould take of his ovn~ nor is he. a ‘*debtor’ to the county vithib;.the or- diaary meaning of the term, since if he vere, the money vould be his property and he could not be guilty of misopplylnS it as the offense Is def incd in the Penal Code. He Is bound to account for and peg over the money to the person entitled, less his ,_ commissions, or his sureties mat pay it for hiu; and neLther he nor his sureties are relieved from liability by the fact that the money vas stolen ulth- out his fault or VAQ lost by being deposited in a bank vhlch failed without negligence on his part, except in some cnaes where the bank ha.s been dosig- aated ea a public depository.” This rule vaa quoted vlth npproval in the late case of &crican Indemnity Co., et al., vs. State, (Civ. App., San. Antonio), 104. S. Il. (2d) 68,. the quotation being derlved from Town of Cmeron vs. ~lcks, 65 N. Va. 484, 64 S. E. 832, 835, 17 Ann. Gas. 926. The language is as follows : “By the great weight of authority, the cust- odian of public money is not n boilee, bound only to the exerclae o? a high degree of care, prudence and’dIligcnce for its snfety, end excusable for the loss thereof by fire, robbery, theft, or bcnk fail- ure, vhen such loss is not In any sense due .to neg- ligence or miwonduct on hia pert, but a debtor and insurer to the ext%ent of the amount received, ex-- cuaable for no 1oYJaos cxcopt those resulting from acts of God or the public enemy.” See also 93’ A.L.R. 819. It therefore appears that a varden charged by l& vith the cuatcdy, safekeeping and tranaM.aslon of license fee funds, is absolutely liable for such funds until the moneys are actually in the hands of the Commiaaion at Austin in the absence of the intcrvcntion of an act vf Cod or the public enemy. J.nd, while the use of the ordinary bonklnS channels is not effirmctively authorized by h\J, vc thilL11 that in this 294 Ronorable Hurrell L. Buckner, page 4 day their use should be expected, if not required. Indeed, some cases hayo held that It would be aegl1genc.e not to use such facilities. See United States Fidelity and. Gueraaty co. vs. Carter, (1933) Va., 170 S. E. 764; 90 A.&R. 191. Since. no such’methods are provided by law, the warden should .rcalIze hovever, that he adopts these methods at his own peril, and does not thereby relieve himself of the liability placed upon him as an Inssurer 4s to these fur&. It follows that If ,a varden assumes this risk as he most likely will, he will accept a check In payment for a license at his dun risk -- a bank deposit will be made at his risk, and use of a bank check or draft for remittance vi11 be made et ,hla onn rlak. We add a caution at this point:.that in m&sing a de- posit of State funds, a warden should not make the deposit In his personal account, nor should he make a general deposit of these f unda, Rathor, to avoid the possibility of violation of the penal statutes dealing with the misappropriatioh of funds he should make a special deposit, opening a trust ac- count In which the State funds are deposited sole1 Sor safe- keeping and tranamIasIon to Austin. See Articles es and 87, V.A.P.C.; 7 Am. Jur. 550; 7 Am. Jur, 548. Furthermore, though a check is ordinarily only a couditionzl payment, if such a check is received by a warden for a llccnae and made payable to the Game, Fish and Oyster ConmissIon, we think the Varden has no authority to endoree the instrument for the Com- mission In the absence of a specific delegation by the Com,;liu- sion of that authority. 40 Em. Jur.. 763; Waggoner Bank & Trust Co. vs. Gamer Co., et al., 213 9. W. 927; 2 Pm, Jvr. 141. We slncerely hope that our views on this question will aid the Commission In the performance of its duties. Very truly your* ATTORRZYGENERALOF TiXAS RA:db Assistant ----,,.~, .,-m-.-F--- -