Untitled Texas Attorney General Opinion ( 2000 )

August 16,200O
The Honorable Delma Rios Opinion No. JC-0269
Kleberg County Attorney
P.O. Box 1411 Re: Disposition of funds collected by sheriff
Kingsville, Texas 78364 pursuant to article 42.12, section 11 (a)( 19), Code
of Criminal Procedure (RQ-0192-JC)
Dear Ms. Rios:
You have asked this office two questions concerning the disposition of mnds collected by
the Sheriffs Department of Kleberg County pursuant to section 1 l(a)(19) of article 42.12 of the
Code of Criminal Procedure. Essentially, your questions concern whether the sheriff may deposit
such funds in a separate account and expend them at his own discretion, or whether such funds must
be deposited in the county depository and are subject to the ordinary budgeting process. In our view,
section 1 l(a)(19) of article 42.12 does not set up a separate fund analogous to the “hot check” fund
set up by article 102,007 of the Code of Criminal Procedure, and the sheriff, accordingly, may not
treat these moneys in the fashion in which the “hot check” fund is treated. Rather, they are to be
placed in the county depository and budgeted in the ordinary manner.
Pursuant to Code of Criminal Procedure article 42.12, section 1 l(a)( 19), a judge may require
in imposing conditions of community supervision that the defendant:
(19) Reimburse a law enforcement agency for the analysis, storage,
or disposal of raw materials, controlled substances, chemical
precursors, drug paraphernalia, or other materials seized in
connection with the offense.
TEX. CODE GRIM. PROC. ANN. art. 42.12,s 1 l(a)(19) (Vernon Supp. 2000).
As you explain the situation leading to your request, fees assessed against defendants
pursuant to section 1 l(a)(19) are deposited by the Kleberg County Sheriff “in a separate account
under his name and spent at his sole discretion.” Request Letter at 2.’ You tiuther advise that the
sheriff has expended approximately $11,000 from this fund for various repairs to a building to be
‘Letter from Honorable Delm Rim, Kleberg County Attorney, to Honorable John Comyn, Texas Attorney
General (Feb. 15, 1999) (on file with Opinion Committee).
The Honorable Delma Rios - Page 2 (JC-0269)
used for offices and training, as well as “$895.00 for mugs with the sheriffs name and DARE
program logo.” Id.
Generally, Local Government Code section 113.003 requires that “[tlhe county treasurer shall
receive all money belonging to the county from whatever source it may be derived,“see TEX. Lot.
GOV’T CODE ANN. 5 113.003 (Vernon 1999), and section 113.001 provides that the treasurer “shall
keep in a designated depository and shall account for all money belonging to the county.” Id.
4 113.001. Such moneys are to be budgeted in accordance with the relevant requirements of chapter
111 of the Local Government Code, in this case-because Kleberg County has a population of fewer
than 225,000 - subchapter A. See id. 5 111.001; see also 1 BUREAUOF THECENSUS,US. DEP’T OF
COMMERCE, 1990 CENSUS OF THE POPULATION: General Population Characteristics: Texas 3
(population of Kleberg County: 30,274).
The fee at issue here “belongs to the county.” The fee is assessed for the official
services ofthe sheriffs office. Fees for such services belong to the county. See Tex. Att’y Gen. Op.
No. JC-0031 (1999) at 3; see also TEX. Lot. GOV’T CODE ANN. 9: 154.003 (Vernon 1999).
Certain funds, such as the “hot check” fund and the fund generated by the interest on
the dealer’s motor vehicle inventory escrow account, are in the words of Attorney General Opinion
DM-357 “wholly outside of the county budgeting process.” Tex. Att’y Gen. Op. No. DM-357
(1995) at 6,9. However, in such cases the legislature has in very specific language given control of
these funds to particular officials. See TEX. CODE GRIM. PROC. ANN. art. 102.007(f) (Vernon Supp.
2000) (expenditures from “hot check” fund at “sole discretion of the [county] attorney”); see also
TEX. TAXCODEANN. 5 23.122(c) (Vernon Supp. 2000) (interest onmotor vehicle inventory escrow
account “sole property” of assessor-collector). Absent such language, as we pointed out in both
Attorney General Opinions DM-357 and DM-398, “expenditure of county funds is under the control
of the commissioners court.” Tex. Att’y Gen. Op. No. DM-398 (1996) at 2; see also Tex. Att’y
Gen. Op. No. DM-357 (1995) at 5. No such specific language is to be found in section 1 l(a)(19)
of article 42.12. See TEX. CODE GRIM. PROC. ANN. art. 42.12, 5 1 l(a)(19) (Vernon Supp. 2000).
The question presented here is closely paralleled by the situation presented in Attorney
General Letter Opinion 96-075. There, this office considered whether an attorney’s fee collected
pursuant to section 71.041(d) of the Family Code by the prosecutor representing an applicant for a
domestic violence protective order was analogous to the “hot check” fund. The relevant statutory
language in that case provided that these fees “shall be paid to the credit of the county fimd from
which the salaries of employees of the prosecuting attorney are paid or supplemented,” see TEX.
FAM. CODE ANN. 5 71.041(d) (Vernon 1996), but contained no “sole property” or “sole discretion”
language. This office concluded that “[wlhile the language ofthe Family Code section is sufficient
to earmark the funds for the use of the prosecutor’s office, it is not sufficient to take the funds out
of the general county budgeting process.” Tex. Att’y Gen. LO-96-075, at 2. The funds collected
pursuant to section 1 l(a)(19), like those discussed in Letter Opinion 96-075, are not analogous to
the “hot check” fund and must be deposited, administered, and disbursed in accordance with the
ordinary county fiscal process.
The Honorable Delma Rios - Page 3 (X-0269)
Your second question is what restrictions may apply to expenditure of these funds. Nothing
in the statutory language imposes any restrictions on the use of such funds, although they are of
course subject to the constitutional restriction that they are to be used solely for public purposes.
See TEX. CONST. art. III, 5 52. We note that the statute requires the reimbursement of the “law
enforcement ``````,“``~TEx.CODECRIM.PROC.ANN.``~. 42.12,s 1 l(a)(19) (VernonSupp. 2000)
rather than either the county or state, or the victim ofthe offense. Compare id. art. 42.12,s 1 l(a)( 18)
(requiring reimbursement of general revenue fund), with id. art. 42.12, § 1 l(a)(20) (requiring
offender to pay “all or part of the reasonable and necessary costs incurred by the victim” for
psychological or HIV-AIDS counseling). This language, while less explicit than that in Family Code
section 7 1.041(d), is sufficient to earmark these funds for the use ofthe sheriffs office, but does not
indicate beyond that any particular purpose for which it must be expended.
Nor does the fact that such funds are characterized as reimbursements provide any further
restriction on their later use. To reimburse is “[t]o repay or make up to one (a sum expended).” XIII
OXFORD ENGLISH DICTIONARY 534 (2d ed. 1989). While the term “reimbursement” explains the
basis on which these moneys are received, it offers no guidance as to how they are to be expended.
Though the statute may in short require that these funds be earmarked to the sheriffs office, it is
otherwise silent as to the purposes for which they may be spent. The sole applicable restriction is
the proviso of article III, section 52 that the mnds be expended for a public purpose.
The Honorable Delma Rios - Page 4 (X-0269)
SUMMARY
Funds collected by a sheriffs department pursuant to section
11 (a)( 19) of article 42.12 of the Code of Criminal Procedure are not
analogous to the “hot check” fund created by article 102.007(f) ofthe
Code of Criminal Procedure and must be deposited, administered, and
disbursed in accordance with the ordinary county fiscal process.
There are no statutory restrictions as to how they may be expended,
but they are subject to the general restrictions of Texas Constitution
article III, section 52 that they must be expended for public purposes.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
James E. Tourtelott
Assistant Attorney General - Opinion Committee