R-268
PRICE DANIEL
ATTORNEY GENERAL
Hon. Ben L. King Opinion No. V-120
County Attorney
Burnet County Re: Whether any individual,
Burn&, Texas association or corporation
other than a banking cor-
poration, association or
private banker may act as
csunty depository.
Dear Sir:
You request an opinion from this department upon the
above subject matter as follows:
1. “Under Title 47, Chapter Two, Article 2546,
Revised Civil Statutes of Texas, relating to selec-
tion by the Commissioners’ Court of the county de-
pository, would the Commissioners’ Court be per-
mitted thereunder, or by law, to select as the county
depository, a partnership consisting of a group of
individuals who are engaged in numerous pursuits
for gain, but which is not organized as a business
with banking privileges, has no paid up capital stock
or permanent surplus and does not purport to be and
in fact is not acting as a banking corporation, asso-
ciation or individual banker?
2. “If it is lawful for the Commissioners’ Court
to select such a partnership as the county deposi-
tory, would a personal bond which is executed by the
individual members of said partnership only, be in
compliance with, and as contemplated in Article
2547. Section (a) of said Act?”
Chapter Two of Title 47 beginning with Article 2544
deals with the subject of county . -
depositories. Article 2544 au-
.~.
thorizes the Commissioners’ Court to enter into a contract with
any “banking corporation, association or individual banker” for
the depositing of the public funds of the county in such bank or
banks. Article 2545 provides for applications by *any banking
corporation, association or individual banker” desiring to be des-
ignated as county depository.
Hon. Ben L. King, Page 2 Opinion No. V-120
Article 2546 makes it the duty of the Commissioners’
Court on the first day of each term at which “banks”are to be se-
lected as county depositories, to consider applicat$ns and make a
selection or selections of a depository or depositories.
Article 2547 declares within fifteen days, it shall be the
duty of the “banking corporation, association, or individual banker”
so selected, to qualify as county depository.
It is obvious the statutes contemplate that the county de-
pository must be a banking institution. If this were not clear enough
from the statutes themselves, it would necessarily be true because
the business of a depository of county funds is essentially the ac-
cepting of deposits and paying checks, which constitutes the one un-
failing exclusive banking function.
In pursuance of Section 16. Article XVI of the Constitu-
tion, the Legislature has set up a comprehensive system for super-
vision, regulation and control of banking institutions, which is of
special need in the matter of our depositories for public funds.
You are therefore advised that the Commissioners’ Court
is not authorized to select, as a county depository, any person, part-
nership, association or group of persons whatsoever other than a
duly organized banking institution, association or private banker
with banking privileges in this State.
We may add, however, that if such depository had been
improvidently selected and had executed a depository bond to the
county, such bond would be valid as a common law obligation pro-
tecting the county accordin to its terms. Such a bond would notbe
in compliance with Section a) of Article 2547 of the statutes.
SUMMARY
The Commissioners’ Court of Burnet County is
not authorized to select as the county depository any
individual, partnership, or group of individuals what-
soever other than a banking corporation, association,
or private bank. Articles 2544, et seq., V.C.S. A
bond executed by an authorized depository would be
good as a common law bond to protect the county.
Yours very truly,
APPROVED ATTORNEYGENERALOFTEXAS
&IZ&!%!RAL By s$‘#k
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Untitled Texas Attorney General Opinion
Combined Opinion