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It-32
OFFICE OF THE AmORNEY GENERAL OF TEXAS
AUSTIN
Honorable C1 l8.
County Attorney
Brewl'tsr oounty
Alpine, Texa8
Your letter of A rwuestingan opinion
or thin departmant upon th question has been
IeWlVOd*
II Brewster County.
1041, said Bank
hen esourity
is dstaribed,
Treasury and *heir num-
bon&r,
d oontraot and bond rroitse that
‘tha oonditiom of the above oontraoted am .
euoh, that, wh.wme, the above bounden pledge,
First National Bank of Alpine, Texa8, was on
10th day of Bebruary, 1911, duly and legal1 ohosen
by Oomieeionerr Court of Brim&m County, 4 mm,
1
Honorable 0, X, Patterson, Page 2
..
a8 County Dspository, ior said County, for a
period of two years, ending 60 days from the
date of the time fired by law for the next
seleotion of a depository.’ Then the rest
of said oontract reoitea oondltlons of same,
as provided by statute.”
The duties of oountp.depositories are presoribed in
detail by the statutes, namely, Artlalea 2544-2SSSa, Vernon’s
Annotated Civil Statutea, A8 a gsnsral rule a de ository is
not relieved from liability until the funds depoe Pted with it
come into, the oontrol and oustody of the proper offlolala.
And the liability my not be disoharged-through a secret
arrangement, hot equivalent to payments, made between an in-.
ooming and retiring depository. (State V. Tyler County Sank,
202 9. W. 2llt Taague Independent Sahool Diatriot V, First
State Bank, 241 9. W. 608)
Article 2544, Vernon’s Annotated Civil Statutes, pro-
vides, in partr
*The Commiealoners Court of each oounty is
hereby authorized and required at the February
Regular Term thereof’ next following eaoh general
eleotioa to enter into a oontraot with any bank-
ing oorporation, assmiation or individual banker
in such oounty for the deaositihg of the gublio
funds of suah county in suoh bank or banks, . . .e
Artiole 2545, Vernon’s Annotated Civil Statutes, reads
as follows~
*Any banking aorporation, association or
individual banker in suah oounty desiring to
be designated as oounty depository shall wake
and deliver to the C~ouhty Judge an ajaplioation
apolying for such fund8 and sold applioation
s&lx state the amount of paid up oapital atook
and permanent surplus of said bank and there
shall~ be furnished with said appliaatiOn a
statement showing the fiuanoial oondftion of
said bank at the date of said applioation whioh
shall be delivered to the county Judge On or
before the first day of the terin of the Cow&+
sioners Court at whioh the SeleOtlOn Of the
169
Honorable C, I&, Patterson, Page 3
depositories is to be made. Said applioation
, shall aleo be aacofipanled by a oertified aheok
for not less than one-half OS one per cent of
/ the oounty’s revenue’ for the preoeding year aa
‘j, a guarantee of the good faith on the mart of
said bank, and that if said bank is accepted,
as county depository, that it will enter into
the bond hereinafter provided. Upon the.failure
of the banking oorporation, association, or
individual banker in suoh oounty that may be
selected aa depoeitorp, to &ve the bond re-
quired by law, the amount of such certified
‘I check shall go to the county as liquidated.
damages and the county judge shall readvertise
I for appliaations, if neoesaary, to obtain a
: county depository ror said county.”
1~ bticle 2648, Vernon’s Annotated Civil Statutes; pm
I
vides in partr
*It shall be the duty of the Commissioners
Court at ten O?.clook a.m. on the first day of
each term at whloh banka are to be seleated as
oounty depositories, to oonaidor all applioa-
tions filed with the County Judge, cause suoh
applications to be entered upon the minutes
of the Court and to eelect those applicants
that are aoceptable and who order the most
favorable terms and oonditions for the handling
of such funds and having the power to rejeat
those whose management or condition, in the
opinion of the Court, does not warrant placing
of county funds in their poeaession. . . ,*
It will be noted that Article 2545, aupra, 5peCiflCally
provides that Vpon the failure of ,the banking corporation,
assooiation, or individual banker in suoh county that may be
selected aa depository, to give the bond required by law, the
amount of auoh oertified oheok’shall go to the county as liqui-
dated damage8 and the county judge ahall readvertise for
applications, if neoeesary, to obtain a county depository
for said oounty.” It will be further noted, that the statute
, (Artioles 2567-2569, Vernon’s Annotated Civil Statutes) provides
for the seleation of a depository upon the insolvenoy of a bank
which is a county, oity or distrlot dapoeitory.
It Is stated in Corpus Jurls Seoundum, Vol. 20, p. 7521
Honorable C, Is. Patterson, Page 4
“Under some statutes an annual designation
of depositpies la required, and in such caeo
designation of the depositary oontlnues for a
qeriod of a year only. The term of a depositary
s not limited to one year by a statute requir-
ing the board of deposits to meet at a.epeoified
time annually, or at any time summoned to
de&gnat& the banka of the state deemed eligible
for Ieposite. A statutory provirrlon requiring
the seleotion of a depositary every two yeare
has been held mandatory. Whore neither statute
nor agreement fixes. the term of the depositary,
the relatfon oont&uaa:durlng the mutual will
of the parties to the oontraot, and a deeig-
nation will be presumed to continue until a
ohawe ie s,howA. IA such aaee the government
nay :t,erminate the relationship whenever the
pubfb safety requirea it, but only by not,ica
of the eleotion to wlthdraw the de o&t. The
depoeitary may terminate the relat f onehip only
by notice of its eleotion to that effeot and
the tender of the deposit, A reda&$gnation of
a depoeitary $8 not neosaeary where the appoint-
ment it3 expressly stated to oontinue until
there is a new advertisement for bide, Although
there is authority to the contrary, it ie
generally held’that, where the power to appoint
ia given In general terms, the appointing au-
thority cannot bind itself by appointing for
any definite time, but hau at all times dis-
oretionary. power of revocation; and unless there
i$ axpreaa authoTi.ty to make a designation for
a definite time, the ap’pointing power oannot
make a binding appointment for a term extend-
ing beyond Lts own term of office, but the NO-
oessor has the right, on assuming the offfoe,
to make it8 bwtldoelgna tf 01). 4 . .*
We think that under the above mentioned etatutes
there la ‘express authority to make a designation of a oounty
depoeitory for a definite time namely, twc years. And aa
above etated, a statutory pro&ion requiring the aeleotion
of a depository every two year@ hae been held mandatory*
(In re Cameron Trust Company, 51 3. W. (2d) 1025)
Honorable 0, E. Pattsraon, Page 5
8or the purposes of this opinion, we must aasum
that the oontraot between the bank and tha oounty i,s a valid
and binding oontraot and that it wan to oontinus ior a period
of two ysars. TBethink that the above mentioned statutes and
the OoAtraOt ltsali fir the term of the depository, and that
. euoh relation C?OAtiAtl68for euoh time and oamot be~tenafnated
at will by either party to the oontraot. Therefore, wa reB-
peotfully answer the above stated question in the negative,
Trusting that the foregoing fully answers ycm in-
quiry, we are
Yours vary truly