h
P April 4, 1988
Honorable Stanley D. Curbo Opinion No. JW-882
Young County Attorney
P. 0. Box 298 Re: Whether the signature
Graham, Texas 76046 of the county auditor and/
or county treasurer is
required for withdrawal of
money from a trust fund
account administered by a
county or district clerk
(RQ-1041)
Dear Mr. Curbo:
County and district court clerks serve as trustees
-
for money or property paid to or deposited with a court
pending disposition of a suit. See Civil Practice and
Remedies Code, 57.002 See also Lawvers Suretv Co. v.
Reina, 483 S.W.2d 911 (Tex. Civ. App. - Amarillo 1972,
writ ref'd n.r.e.); Harris Countv v. Sellers, 468 S.W.2d
950 (Tex. Civ. App. - Houston [lst Dist.] 1971, reversed
on other arounds, 483 S.W. 242 (Tex. 1972 Attorney
General Opinion H-360 (1974). Article 2558a, 1; V.T.C.S.,
governs the county commissioners* selection of depositor-
ies for trust funds that are under the administration and
control of county and district clerks. You ask whether
the signature of either the county auditor or the county
treasurer or both is required for the withdrawal of money
from such a trust fund account administered by a county or
district clerk. Your question is prompted by the fact
that the county treasurer, as chief custodian of county
finances, is required to affix his signature to county
warrants before they can be presented and honored by the
county's depository. V.T.C.S. art. 2554: see aenerallv
LArts. 2558a, 2554, 1653, 1631, 1709, 1909a,
V.T.C.S., have been repealed and re-codified, effective
September 1, 1987, with the Local Government Code. See
Acts 1987, 70th Leg., ch. 149, 551, 49.
p. 4308
Honorable Stanley D. Curb0 - Page 2 W-882)
V.T.C.S. arts. 1709, 1709a. We conclude that the
signature of neither the county treasurer nor the county
auditor is required for the withdrawal of money from a
trust fund account administered by a county or district
clerk. Money deposited with a court and administered by a
county or district clerk in a trust fund pursuant to
article 2558a, V.T.C.S., may be withdrawn only by a check
drawn by the clerk having custody by law of those funds,
upon the order of the judge of the court in which the
funds have been deposited.
Title 47 of the Revised Civil Statutes of Texas
contains the statutes governing the selection by various
sorts of political subdivisions in the state of
depositories for various public funds. Article 2558a,
V.T.C.S., sets forth the provisions that are applicable to
a county commissioners court selecting depositories for
trust funds under the administration and control of county
and district clerks. Section 4a of article 2558a governs
the placing of trust funds on time deposit and sets forth
the following:
The Commissioners Court of each county,
acting by and through the County Auditor, or
if there is no County Auditor then the
County Treasurer, of such county, is
authorized to place on time deposit with the
depository bank for trust funds in the
possession of County and District Clerks of
such County, that portion of the trust funds
account estimated by the County Auditor or
County Treasurer, as the case may be, as not
required immediately to pay out all amounts
in accordance with proper orders of the
Judge of the Court in which funds have been
deposited. If at any time the funds so
placed on time deposit are required before
maturity, they shall be made available by
the depository bank but the depository bank
shall not be liable for interest earned on
such amount withdrawn from time deposit.
The Commissioners Court is authorized and
directed to receive all interest so earned
on time deposit of such trust funds and to
place all such interest into the General
Fund of the County as an offset to the
expenses of handling such trust funds for
the benefit of litigants.
?
p. 4309
Honorable Stanley D. Curb0 - Page 3 (X-882)
Section 6 of article 2558a provides for payment upon
the presentment of checks and sets forth the following
relevant provisions:
It shall be the duty of the depository to
provide for the payment at the county seat
of the county upon presentment al;1 checks
drawn bv the Countv or District Clerk upon
the funds deposited in the name of such
Clerk as long as such funds shall be in the
possession of the depository subject to such
checks. (Emphasis added.)
Section 11 of article 2558a sets forth the following
relevant language: "The funds deposited by the Clerk
shall be carried as a Trust Fund account in the name of
the Clerk making the deposit, and same shall be subject to
withdrawal bv the Clerk under the conditions set out in
the succeedina oaraaravh of this Act." (Emphasis added.)
Section 12 of article 2558a provides:
Exceot uoon n orde of the Judae of the
Court in which fundsrhave been deposited, no
check shall be drawn on said depository for
any part of said funds bv the Clerk except
for payment to the person or persons to whom
the amount of said check is due. All checks
drawn bv the Clerks shall show the style
number of the proceeding in which money was
deposited with the Clerk. (Emphasis added.)
See also section 13 of V.T.C.S. art. 2558a.
Article XVI, section 44, of the Texas Constitution
provides, inter alia, that the legislature shall prescribe
the duties of the office of county treasurer. Article
1709, V.T.C.S., sets forth the duties of the county
treasurer and provides the following relevant language:
The County Treasurer, as chief custodian of
county finance, shall receive all moneys
belona ina to the countv from whatever source
thev mav be derived; keep and account for
the same in a designated depository on
depositories; and oav and aoulv or disburse
the same, in such manner as the Commis-
sioners Court may require or direct, not
inconsistent with constitutional law.
(Emphasis added.)
p. 4310
Honorable Stanley D. Curbo - Page 4 (JK-882)
Article 1709a, V.T.C.S., providing specifically for the
receipt, safe-keeping and disbursement of county funds,
sets forth at section 4 the following relevant provisions:
From and after the effective date of this
Act the Countv Treasurer in each countv
3
cou
ntv.fbToses thev mav be
claimed. and shall oav and aoolv the same as
reouired bv laW. NO moneys shall be
expended or withdrawn from the county
treasury except by checks or warrants drawn
on the county treasury, whether such moneys
are in a county depository as required by
law or not. (Emphasis added.)
Article 2554, V.T.C.S., details the way in which county
warrants are to be paid and provides the following
relevant language:
It shall be the duty of the county
treasurer upon the presentation to him of
any warrant, check, voucher, or order drawn
by the proper authority, if there be funds
sufficient for the payment thereof
deposit in the account against which suzi
warrant is drawn, to endorse upon the face
of such instrument his order to pay the same
to the payee named therein and to charge the
same on his books to the fund upon which it
is drawn.
Article 1651, V.T.C.S., sets forth the duties of the
county auditor and provides that
[t]he Auditor shall have a general oversight
of all the books and records of all the
officers of the county, district or state,
who may be authorized or required by law to
receive or collect any money, funds, fees,
or other property for the use of or,
belonging to, the county. . . .
See also V.T.C.S., arts. 1653, 1709a.
We have found no relevant statutory provision
conferring either the authority or the responsibility to
either the county treasurer, the county auditor, or both,
for signing instruments authorizing the withdrawal of
money from a trust fund account administered by a county
p. 4311
Honorable Stanley D. Curbo - Page 5 (JM-882)
or district clerk. That no statute contains any such
provision is understandable, since the money deposited
with a county or district clerk is not county money. The
only way in which money deposited in a trust fund pursuant
to article 2558a may be withdrawn is by a check drawn by
the clerk having custody by law of those funds, upon an
order of the judge of the court in which the funds have
been deposited.
SUMMARY
Neither the signature of the county
auditor, nor that of the county treasurer is
necessary for the withdrawal of money from a
trust fund account administered by a county
or district clerk pursuant to article 2558a,
V.T.C.S. Money deposited in a trust fund
pursuant to article 2558a, V.T.C.S., may be
withdrawn only by a check drawn by the clerk
having custody by law of those funds, upon
an order of the judge of the court in which
the funds have been deposited.
L-L/h
Very truly yo r ,
w
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
MU MCCRKARY
Executive Assistant Attorney General
JUDGE ZOLLIE STKAKLKY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
p. 4312