The Attorney General of Texas
June 5, 1980
Honorable Joe Resweber Opinion No. ~~-188
Harris County Attorney
1001 Preston, Suite 634 Re: Fees collected ill connection
Houston, Texas 77002 with handling of hot checks.
Dear Mr. Resweber:
You ask our opinion on the following questions:
May the Harris County Auditor prescribe or
require the deposit of the fees collected by the
Harris County District Attorney pursuant to
Vernon’s AM. C.C.P. art. 53.08, in Fund 521,
District Attorney Administration Fund, or in
the Officers Fee Fund, pursuant to Art. 3912e,
Sec. 5, V.A.C.S.?
(2) May the County Auditor prescribe accounting
and control procedures for the fees collected
pursuant to Vernon’s Ann. C.C.P. art. 53.08?
(3) May the County. Auditor prescribe accounting
and control procedures for the Justices of the
Peace as they pertain to the fees collected in
the processing of hot checks for and on behalf
of the District Attorney?
(4) May the County Auditor prescribe that a fee be
assessed and collected under Vernon’s Ann.
C.C.P. art. 53.08, Sec. (a)(2)(b), in each and
every instance in order to have proper account-
ing and controls for all fees?
Article 53.08, Code of Criminal Procedure, provides in pertinent part:
(a) A . . . district attorney . . . may collect a
fee if his office collects and processes a check
or similar sight order if the check or similar
sight order:
P- 600
Honorable Joe Resweber - Page Two (14W-188)
(1) has been issued or passed in a manner which makes the
issuance or passing an offense. . . .
. . . .
(e) Fees collected under this article shall be deposited in the
county treasury in a special fund to be administered by the . . .
district attorney.. . . Expenditures from this fund shall be at the
sole discretion of the attorney, and may be used only to &fray the
salaries and expenses of the prosecutor’s office, but in no event
may the . . . district attorney . . . supplement his or her own salary
from this fund. Nothing in this Act’shall be construed to decrease
the total salaries, expenses, and allowances which a prosecuting
attorney’s office is receiving at the time this Act takes effect.
Acts 1979, 66th Leg., ch. 734, 5 1, at 1802.
You advise us that “on September 6, 1979, the Harris County Commissioners Court
adopted an Order establishing Fund 521, District Attorney Administration Fund, for the
purposes of depositing the fees collected in the processing of hot checks, and that these
funds be deposited periodically into~ the General Fund to help defray the operational
expenses of the District Attorney’s office.”
Article 3912e, section 5, V.T.C.S., provides in pertinent part:
It shall be the duty of all officers to charge and collect in the
manner authorized by law all fees and commissions which are
permitted 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. . . .
Article 3912e, section 5, conflicts with article 53.08, section (e), where it requires
that fees collected “be deoceited in the Officers’ Salarv Fund. or funds orovided in this
Act.” The more specific id more recently enacted staiute, article 53.08’, prevails as an
exception to section 5. State ex rel. Watkins v. Morgan, 555 S.W.2d 217 (Tex. Civ. App.
- Waco 1977, writ reTd n.r.e.1; Texas State Board of Phac‘macv v. Kit-, 550 S.W.2d 104
(Tex. Civ. App. -Tyler 1977, no writ); Attorney General Opinior I H-834 (1976). As a
result, the fees in question should be deposited in the District Attorney’s Administration
Fund for use in his sole discretion.
Article 1656a, V.T.C.S., provides in part that
The County Auditor . . . shall prescribe the system of accounting
for the county and the forms to be used by the District Clerk,
District Attorney and all county and precinct officers and by all
persons in the collection and disbursement of county revenues,
p. 601
Honorable Joe Resweber - Page Three (Mw-186 1
funds, fees, and all other moneys collected in an official capacity
whether belonging to the county, its subdivisions or precincts,or to,
or for the use or benefit of, any person, firm, or corporation; he
shall prescribe the mode and manner in which the District Clerk,
District Attorney and all county and precinct officers shall keep
their accounts, and he shall have the power to require all officers
to furnish monthly, annual, or other reports under oath of all
moneys, taxes, or fees of every nature received, disbursed, or
remaining on hand; and in connection with such reports he shall
have the right to count the cash on hand with such officer, or to
verify the amount on deposit in the bank in which such officer may
have placed the same for safekeeping. He shall have the power to
adopt and enforce such regulations not inconsistent with the
Constitution and laws as he may deem essential to the speedy and
proper collectton and checking of, and accounting for, the revenues
and other funds and fees belonging to the county or to any person,
firm,
collections, or for whose use or benefit they may have received or
may hold such funds.. (Emphasis Added)
Article 1656a, which applies to counties with population in excess of 190,000, clearly
gives the auditor discretion to prescribe procedures for the deposit of fees and
disbursement of funds provided for in article 53.08, section (e), Code of Criminal
Procedure. See Attorney General Opinion H-183 (1973). We find no conflict between the
district attorney’s limited statutory discretion to determine the purpose for which
expenditures from the fund are to be made and the auditor’s statutory power to prescribe
accounting and control procedures for making deposits and disbursements.
Likewise, the auditor may prescribe accounting and control procedures as they
pertain to Justices of the Peace for any fees which may be lawfully collected by them in
the processing of hot checks for and on behalf of the District Attorney.
Article 6252-24, V.T.C.S., relates to “Collecting debts for others,” and provides in
part:
Anv Justice of the Peace, sheriff, constable or other oeace
receive for collection or undertake
the collection of any claim for debt for others except under and by
virtue of the processes of law prescribing the duties of such
officers. or who shall receive compensation therefor exceot as
Pn sscribed by law, shall be guilty -of a misdemeanor and ‘upon
conviction thereof shall be rounish
~~~~~-~~edby a fine of not less than Two
‘Hundred Dollars nor more than Five Hundred Dollars, and in
addition to such fine may be removed ~from office.
While the clear language of this statute prohibits a justice of the’ peace from the
collection of private debts, or from collecting restitution on dishonored checks, -See
P. 602
Honorable Joe Resweber - Page Four (MW-188)
Lombardino v. Fireman’s and Policeman’s Civil Service Commission of the City of San
Antonio, 310 S.W.2d 651 (Tex. Civ. App. 1958, error rePd n.r.e.1, and Attorney General
Opinion C-190 (l963), a justice of the peace may receive certain fees and costs on behalf
of the county or its officers which must be paid over to the parties entitled to receive
them, and he may “become the custodian of funds paid into the registry of his court during
the progress of a suit, to await its final determination.” Cf. Bray-Robinson-Curry Woolen
Mills v. W. F. Walker & Son, et al, 165 S.W. 107 (Tex. Ctv. App. - Texarkana 1914, no
writ).
The ministerial function of collecting fines and fees in behalf of the county or its
officers in matters pending within his court and.within his jurisdiction, which must be paid
over to the county treasurer at stated intervals, is not one of the prohibited acts
contemplated by article 6252-24, and the auditor is empowered by article 1656a to
prescribe accounting and control procedu,res therefor.
While article 1656a, V.T.C.S., empowers the county auditor to prescribe the “system
of accounting” and the “mode and manner” in which “all officers” in the county make
collections and disbursement of funds, he does not have the power to impcee a fee or
require that a fee be assessed and collected in each and every instance under article
‘53.08, section (a)(2)(b), Code of Criminal Procedure, which provides:
The ‘county attorney, district attorney, or criminal district
attorney m collect the fee from any person who is a party to the
offense &scribed. . . .
SUMMARY
The Harris County auditor may prescribe accounting and control
procedures for all fees collected pursuant to article 53.08, Code of
Criminal Procedure, including their deposit in Fund 521, District
Attorney Administration Fund. The county auditor may prescribe
accounting and control procedures for justices of the peace as they
pertain to the fees collected in the processing of hot checks for and
on behalf of the district attorney.
&m
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
P. 603
Honorable Joe Resweber - Page Five (NW-188)
Prepared by Bob Gammage &
C. Robert Heath
Assistant Attorneys General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Walter Davis
Susan Garrison
Rick Gilpin
Art Keinarth
Eva Loutzenhiser
Dan Mills
Linda Walden
p. 604