THEATORNEY GENERAL
OF TEXAS
February 13, 1939
Hon. Clifford Bralg
Dlstrfct.~Attotineg~:
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Pampa, Texas "' .~.~
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Dear SLr: Opinion No. O-325
Re: Is personal use of &nds received &s
court costs by Dlstr'lctClerk a vlola-
t.lonof the Penal Code?
Your request for an oplnlon on the above stated ques-
tion has been received by this office.
Your letter reads, in part, as follows:
"The.Distrlct.Cierk of,&his co&y, as shown
by the &i&itor,'stiepor$,,just:belngfiled, ~&as
used for her,~ownp'&rsoi@ui~ecabh courtcost
deposits placed with heti~
in her official capacity
as Dtptrlct Clerk; the total sum convertedbeing
approxlmat&ly$500.00, about half of which has
been replaced in her official funds. I vould
,-appreciatebeing advised Whether this Is a vlo-
latlon of our penal code and If so what article
should prosecutionproceed under?.
"For your lnfortitlon,the District C.lerkof
Gray County.1~paid on the salary.basisand all
fees of office are payable by the District Clerk
to the salary fund of the County."
Section 4 and 5, Article 3912e, reads as follows:
“Sec. 4. In all counties of this State con-
taining a population of less than one hundred
and ninety thousand (190,000)Inhabitantsaccord-
lng to the last preceding Federal Census uhereln
the county or.preolnctofficers are compensated
on a salary binsisunder~the provisions of this
Act, there shall be created a fund to be known
as the "Offictirsl Salary Fund of colinty,
Texas.' Such fund shall be kept separate and.
apart from all other county funds, and shall be
held and disbursed for the purpose of paying
the salaries of officers and the salaries of dep-
. -_._
Hon. Clifford Braly, February 13, 1939, Page 2 O-325
utles, assistantsand clerks of orfloerswho are
drawing a salary from said fund under the provl-
slons of this Act, and to pay the authorized ex-
penses and their offices. Such fund shall be
deposited In the county depository and shall be
protected to the same extent as other county
funds.
"Sec. 5. It shall be the duty of all officers
to charge and collect In the manner authorized
by law all~fees and commissionswhich are permlt-
ted by law to be assessed and collected for all
official service performed by them. As and when
such fees are collected they shall be deposited
In the Officers'Salary Fund, or funds provided
In this Act. In event the Commissioners'court
finds that the failure to collect any fee or
commlsalonwas due to neglect on the part of the
officer charged with the responsibilityof col-
lecting same, the amount of such fee or commls-
slon shall be deducted from,the salary of such
officer. Before any such deduction Is made,
the Commissioners'Court shall furnish such of-
ficer with an Itemized statement of the uncol-
lected fees with which his account Is to be
charged, and shall notify such officer of the
time and place for a hearing on same, to aeter-
mine whether such officer was guilty of negll-
gence, which time for hearing shall beat least
ten days subsequentto the date of notice. Uni
less an officer is charged by law with the re-
sponsibilityof collecting fees, the Commlsslon-
era' Court shall not In any event make any de-
ductions from the authorized salary of such of-
ficer."
Article 95 of the Penal Code reads as follows:
"If any officer of any county, city or town,
or any person employed by such officer, shall
fraudulentlytake, misapply, or convert to hiB
own use any money, property or'otherthlng of
vaIue beloriglngtosuch county,,clty,or town,
that may have come into his custody or posses-
sion by virtue of his office or employment,or
shall secret (secrete)the same with lntentto
take, misapply or convert it to his own use/or
shall pay or deliver the same-to any person
know~lngthat he la not entitled to receive It,
he shall be confined In the penitentiarynot less
Hon. Clifford Braly, February 13, 1939, page 3 O-325
than two nor more than ten years."
The case of.Reynolds vs. State, 92 SW (2nd) 450, holds,
among other things, that :
'For an officer to be guilty of misapplying or
converting public funds, runda must have come Into
his custody or possession by vlrtue,of his office
whdch means that he must be In actual possession
thereof at the time of conversion or mlsappllcatlon."
In view of the foregoing authorities, you are respect-
fully advised that It 15 the oplnlon of this-Department that
when any officer of any.county, city or town, or any'person
employed by such officer who shall fraudulently take, misapply
or convert to his own use any money, property or other thing
of value, belonging to such county, city or town, which Is In
his actual possessionand that has come Into his custody by
virtue of his office or employment, or shall secrete the same
with Intent to take, mf.sapplyor convert to his own use or --
shall pay or deliver the same to any person knowing that he Is
not entitled to receive It, ~1s subject to prosecution under
Article 95 of the Penal Code...
Trusting that the foregoing answers your Inquiry, we
remain
Very truly yours
ATTORNEYGENERAL OF TEXAS
.
By s/Ardell Wllllsims
Ardell Wllll~ms
Assistant
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APPROW: '~
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS