Hon. Joe Resweber Opinion No. M- 1198
~County Attorney
Harris County Courthouse Re: Questions relating to the
Houston, Texas 77002 performance of the duties
of a district clerk relating
to trust funds, pursuant to
Articles 1656a and 2558a,
Vernon's Civil Statutes, and
in light of Sellers v. Harris
County, ,S.W.2d
Dear Mr. Resweber: (Tex.Sup. 1972).
Your recent letter requesting the opinion of this office
concerning the referenced matter asks several questions relating to
the duties of a district clerk regarding trust funds placed in his
custody, in light of the recent decision in Sellers v; Harris County,
S.W.Zd (Tex.Sup. 1972) (No. B-2892, May 31, 1972). Your
questions are as follows:
"Question No. l.- Did the opinion of the
Supreme Court of Texas, so rendered in said
Sellers Case, declare Article 2558a, V.C.S.,
in its entirety to offend Article 1, Section
‘19 of the Texas Constitution and the Fourteenth
Amendment of the United States Constitution?
"Question No. 2. - If your opinion to
Question No. 1 is No, what sections of said
Article 2558a, V.C.S., remain in full force
and effect?
"Question No. 3. - What effect, if any,
does said holding in said Sellers Case have
upon the presently existing depository contract
between the Commissioners Court of Harris County
and the Houston National Bank pertaining to
Harris County District Clerk Trust Fund Ac-
count entered into pursuant to Article 2558a,
V.C.S.?
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Hon. Joe Resweber, page 2 (M-1198)
"Question No. 4. - Was Article 1656a, V.C.S.,
which contains therein the provision, to-wit
1. . . and draw interest for the benefit of the
County, . . .I, also declared by said Supreme
Court in said Sellers Case to offend, in its
entirety, Article I, Section 19 of the Texas
Constitution, and the Fourteenth Amendment of
the United States Constitution?
"Question No. 5. - If your opinion to Ques-
tion No. 4 is No, what sections of said Article
1656a, V.C.S., remain in full force and effect?
"Question No. 6. - What portions of Article
1656b, V.C.S., are affected by the Sellers opinion?
"Question No. 7. - If your opinions to
Questions Nos. 1 and 4 are Yes, . . . (is the
District Clerk) statutorily required, in order
to avoid the penalties prescribed under Articles
383 and 383a of the Penal Code of Texas, to in-
stitute the procedure prescribed in Article
2290, V.C!S., to safeguard Registry of the
Court Funds?
"Question No. 8. - The Supreme Court in its
said opinion in the Sellers Case, affirmed the
Trial Court's Judgment which among other things
decreed, to-wit, 'at the conclusion of the liti-
gation the trial court is to determine a reason-
able fee to compensate Harris County for its
accounting and administrative expenses incurred
in handling the fund.' This lawsuit is now
wholly concluded, but for future reference
. . . (the district clerk want/s/) to know:
II
. . * (Is he) legally authorized to
retain and accept such a reasonable fee,
as determined by the Trial Court?
"Is the collection of such a reasonable
fee, as determined by the Court, to be re-
ceived, reported and accounted for as other
statutory fees of . . . (his) office?"
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Hon. Joe Resweber, page 3 (M-1198)
The following materials were submitted by you with your
letter: (a) final decision of the Texas Supreme Court in Sellers
v. Harris County, dated Nay 31, 1972, on motion for rehearing;(b)
original decisipn of the Supreme Court in said case, dated April
5, 1972 (withdrawn); (c) Harris County's Brief in Support of Motion
for Rehearing; (d) Judgment and Decree of the District Court; and
(e) Depository Contract by and between Harris County and the Houston
National Bank,.inter alia.
Section 4a of Article 2558, Vernon's Civil Statutes, pro-
vides, in pertinent part, that:
,I
. . . 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."
(Emphasis added.)
Section 4b of that Article provides that:
"The Commissioners Court of each county,
acting by and through the County Auditor . . .
is authorized to place in the General Fund of
the county any accumulated interest derived
from trust funds in the possession of County
and District Clerks of such county . . ., g
offset the expenses of handling such trust
funds for the benefit of litigants." (Em:
phasis added.)
Article 1656a, Vernon's Civil Statutes, also provides,
in pertinent part, that:
"The County Auditor in counties having a
population of one hundred ninetv thnnaand
_- -----..---.I) _“^ -..- W”....GJ ..d... CI.G
a ---..
forms to be used by the District Clerk . . . in
the collection and disbursement of county reve-
nues, funds, fees, and all other moneys collected
in an official capacity whether belonging to the
county . . . or to, or for the use or benefit of,
any person, firm, or corporation: . . . All of
the fees, commissions, funds, and moneys herein
referred to shall be turned over to the County
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,
Hon. Joe Resweber, page 4 (M-1198)
Treasurer by such officer as collected, and such
money shall be deposited in the county depository
in a special fund to the credit of such officer
and draw interestfor the benefit of the county; _
. . .11 (Emphasis added.)
In Sellers v. Harris County, cited supra, the Supreme
Court of Texas held that, when trust funds are paid into court
during litigation and invested at interest by the district clerk
or county auditor, the district judge may direct the, ultimate pay-
ment of the interest to the owner of the principal, rather than
directing that all interest be paid to the county. The Supreme
Court also saidthat ". . . At the conclusion of the litigation
the trial court was to determine a reasonable fee to compensate
Harris County for its accounting and administrative expenses in-
curred in handling the fund." (Slip Opinion, p. 2.)
Your first question asks if the Supreme Court declared
Article 2558a, unconstitutional in its entirety. In referring only
to Sections 4a and 4b of that Article,.the Court said:
"By depriving the owner of a sum not reason-
ably related to the value of the county's services
in safeguarding and investing the principal, the
statute offends Article 1, Section 19 of the Gas
Constitution aswell as the Fourteenth Amendment
of the United States Constitution. . . ." (Em-
phasis added.)
We are of the opinion that the rule of statutory construc-
tion applicable to your request is that stated in Vernon v. State,
407 S.W.2d 236 (Tex.Civ.App. 1966, error ref. n.r.e.):
II
. It is incumbent upon the courts to
. .
sever any unconstitutional provision and to
sustain the remainder. See Harris County Water
Control & Imp. Dists., etc. v. Albright, 153
Tex. 94, 263 S.W.Zd 944 (1954); and see City of
Taylor v. Taylor Bedding Mfg. Co., 215 S.W.2d
215-217, Tex.Civ.App. 1948) wr.ref. This is
especially true where the statute concerns
several matters. Davis v. Whie, 260 S.W. 138-
141, Tex.Civ.App. (19241, wr.ref. We believe
that if such section which appellants complain
of, should be held invalid, it is not so inter-
mingled with other parts of the Act as to make
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Hon. Joe Resweber, page 5 (M-1198)
it impossible to separate from the balance of
the Act." 406 S.W.Zd at 243.~ I
Being mindful of the foregoing language from Vernon, of the
fact that the Supreme Court in Sellers was only considering the con-
stitutionality of Sections 4a and 4b of Article 2558a, and of the
fact that the Article has fifteen different sections relating to
many other matters which appear to us to be wholly severable, we
have concluded that the Court did not hold Article 2558a unconstitutional
in its ,entirety, notwithstanding what might be interpretea as
language to the contrary ("the statute") in its opinion. Sections
4a and 4b are not so intertwined and,intermingled with the other
sections of the Article as to make the entire statute constitutionally
infirm. Rather, it is our opinion that the Court meant only to hold
Sections 4a and 4b; insofar as they were applied in the fact situation
in Sellers, unconstitutional, to the extent that the statutory pro-
visions deprived the owner of the fund in question his property
without due process of law.
Nor are we of the opinion, as you suggest, that Article
2558a, minus Sections 4a and 4b, would be violative of Sections
51 and 52 of Article III, or of Section 6 of Article XVI, of the
Constitution of Texas.
Therefore, your first question is answered in the negative.
Our answer to your second question is that all sections of
Article 2558a remain valid and in full force and effect, with the
exception of Sections 4a and 4b, as those Sections are applied in
fact situations similar to that in Sellers.,-,Those Sections are still
constitutionally operable to the extent that a reasonable portion of
the interest accumulated on such trust funds may be given to counties
to compensate them for their accounting and administrative expenses
incurred in handling the trust funds: the amount oft such reimburse-
ment to counties shall be set by the trial court having jurisdiction
of the cause of action in which the trust fund was established.
Our answer to your third question is that the holding in
the Sellers case in no way invalidates or has any effect o,n the
depository contract dated March 30, 1971, and executed by and be-
tween the Houston National Bank and Harris County, inasmuch as
the provisions of Article 2558a relating to this depository con-
tract remain in full force and effect.
Your fourth question asks whether Article 1656a was also
declared by Sellers to be unconstitutional in its entirety. Nowhere
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Hon. Joe Resweber, Page 6 (M-1198)
in the Sellers opinion is that Article declared unconstitutional.
However, we are of the opinion that the portion of Article 1656a
reading "and draw interest for the benefit of the county", under-
scored supra, is of doubtful constitutionality in light of the
court's statements concerning Sections 4a and 4b of Article 2558a.
In light of the Sellers holding , such portion of Article 1656a must
be read to provide that the special fund,shall draw interest for
the benefit of the county to the extent that a reasonable fee to
compensate the county for its accounting and administrative ex-
penses incurred in handling trust funds is allowed by the courts
having jurisdiction of the cause of action wherein the trust funds
arose. Thus, your fourth question is answered in the'negative.
The answer to your fifth question is that all of Article
1656a remains valid and in full force and effect, but subject to
the change as to apportionment of the accrued interest mentioned
in our answer to your question four immediately preceding.
The answer to your sixth question is that no portions of
Article 165613, Vernon's Civil Statutes, are affected by Sellers.
Inasmuch as your question number seven is predicated on
an affirmative'answer to your questions one and four, and inasmuch
as we have answered both of those questions in the negative, it is
not necessary for us to consider your seventh question.
The answer to the first part of your eighth question is
that the Harris County District Clerk is, pursuant to the authority
of Sellers, legally authorized to retain and accept the reasonable
fee set by the trial court for Harris County's expenses incurred
in handling the trust fund.
The answer to the second part of your eighth question is
that such fee retained and accepted by the Harris County District
Clerk is to be received, reported and accounted for as all other
statutory fees of his office.
SUMMARY
(1) Pursuant to Articles 1656a and 2558a,
Vernon's Civil Statutes, when trust funds are
paid into court during litigation and invested
at interest by the district clerk or county
auditor, the district judge shall direct the
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Hon. Joe Resweber, page 7 (M-1198)
ultimate payment of the interest to the owner
of the principal less a reasonable fee to be
determined by him to compensate the county
for its accounting and administrative expenses
incurred in handling the fund.
(2) Article 2558a was not declared un-
constitutional in its entirety by the Supreme
Court of Texas in Sellers v. Harris County,
S.W.Zd (Cause No. B-2892, May 31,
1972); rather, only Sections 4a and 4b of the
Article were rendered unconstitutional, as
applied in the factual situation set forth in
S+ers, to the extent that the statutory pro-
visions deprived the owner of the fund in ques-
tion his property without due process of law.
(3) The Sellers case has no effect on the
presently existing depository contract by and
between Harris County and the Houston National
Bank.
(4) Article 1656a was not declared uncon-
stitutional by the Sellers case, but the portion
thereof reading "and draw interest for the benefit
of the county" must be read in light of the
Sellers holding.
(5) No portions of Article 1656b, Vernon's
Civil Statutes, are affected by the Sellers,
decision.
(6) A district clerk is legally authorized
by Sellers to retain and accept the fee set forth
in paragraph (1) hereinabove, and such fee is to
be received, reported and accounted for as other
statutory fees of his office.
Ver& ruly yours,
C. MARTIN
ey General of Texas
Prepared by Austin C. Bray, Jr.
Assistant Attorney General
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’
Hon. Joe Resweber, page 8, (M-1198)
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Malcolm Quick
Scott Garrison
Mike Stork
Gerald Ivey
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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