Untitled Texas Attorney General Opinion ( 2000 )

OPPlCE
OFTHEATTORNE”
GENERAL.
STATE
OFTEXhS
JOHN CORNYN
June 2 1,200O
The Honorable Susan D. Reed Opinion No. JC-023 1
Bexar County Criminal District Attorney
Bexar County Justice Center Re: Whether the county tax assessor-collector or
300 Dolorosa, Fifth Floor the county treasurer may electronically transfer
San Antonio, Texas 78205-3030 tax funds from the tax assessor-collector’s account
to the appropriate county fund (RQ-0162-JC)
Dear Ms. Reed:
You request an opinion from this office addressing the following question:
If tax revenues received by the county tax assessor-collector
are deposited in the tax assessor-collector’s account with the county
depository preceding transfer of the funds to the proper county fund
at the county depository, which county officer is the proper party to
initiate the electronic transfer of funds?
Letter from Susan B. Reed, Bexar County Criminal District Attorney, to Honorable John Comyn,
Texas Attorney General, at 1 (Dec. 8,1999) (on file with Opinion Committee) [hereinatler“Request
Letter”]. You ask only about the county tax revenues, and you believe that they may be
electronically transferred to the proper county fund by the county tax assessor-collector or the county
treasurer pursuant to the tax assessor-collector’s authority under section 113.007 of the Local
Government Code or section 2256.051 of the Government Code. Id. at 2. We conclude that while
no statute expressly authorizes electronic transfer of the county tax revenues from the county tax
assessor-collector’s account to the county treasury, such authority may be implied. We also
conclude that only the county tax assessor-collector is authorized to initiate electronic transfer of the
funds.
To provide a context for your question, we first review the statutory provisions regarding the
county tax assessor-collector’s duty to deposit and transfer county tax revenues. The county tax
assessor-collector is primarily responsible for the assessment and collection ofcounty property taxes,
but may have the duty of performing these functions for other taxing units, such as a city, a school
district, or a special district. TEX. TAX CODE ANN. 5 6.23 (Vernon 1992); TEX. Lot. GOV’T CODE
ANN. 5 116.113 (Vernon 1999); see generally DAVID B. BROOKS, 35 TEXAS PRACTICE: COUNTY
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AND SPECIALDISTRICT LAW 8 13.5 (1989 & Supp. 1999) (discussing duties of county tax assessor-
collector). Section 116.113(b) of the Local Government Code requires the tax assessor-collector to
deposit taxes collected for other taxing units, as well as the county, in the county depository: “A
county tax assessor-collector shall immediately deposit in the county depository taxes collected on
behalf of the state, the county, or a district or municipal subdivision The taxes remain on
deposit pending the preparation and settlement of the assessor-collector’s report on the tax
collections.” TEX. Lot. GOV’T CODE ANN. 5 116.113(b) (Vernon 1999); see Tex. Att’y Gen. Op.
No. JM-1263 (1990) at 3-5 (not all funds collected by tax assessor-collector and placed in county
depository belong to county). Section 113.021(a) of the Local Government Code, which generally
provides that funds belonging to a county shall be deposited with the county treasurer by the officer
who collects them, specifies that the “county tax assessor-collector must deposit the money in
accordance with the procedures prescribed by or under the Tax Code and other laws.” TEX. LOC.
GOV’TCODEANN. 5 113.021(a) (Vernon 1999). Section 31.10 ofthe Tax Code, dealing with taxes
collected by the county tax assessor-collector on behalf of all taxing units, requires the tax assessor-
collector to prepare and submit monthly reports and deposit in the taxing “unit’s depository all taxes
collected for the unit” at least monthly. TEX. TAX CODE ANN. § 3 1.1 O(a), (c) (Vernon 1992). Under
the foregoing provisions, this office has opined, county taxes collected by the tax assessor-collector
are to be deposited in the county depository pending their transfer to the county treasurer. Tex. Att’y
Gen. Op. No. H-1181 (1978); see also Tex. Att’y Gen. LO-96-074, at 3.
We understand you to ask (1) whether the tax monies belonging to the county in the tax
assessor-collector’s account at the county depository may be transferred electronically to the county
treasury, i.e., to the appropriate county funds under the treasurer’s control; and (2) who may initiate
the electronic transfer.
No provision expressly authorizes electronic transfer of the county tax funds from the tax
assessor-collector’s account to the county treasury. Such transfer authority, however, may be
implied. In Attorney General Opinion JM-773, this office considered whether an independent school
district was authorized to use an electronic funds transfer system absent specific statutory authority
to do so and concluded that it was “within the discretion of the [school board of] trustees to adopt
such a system if it is reasonably necessary to the operation of the school district.” Tex. Att’y Gen.
Op. No. JM-773 (1987) at 2. The opinion reasons that “by failing to specify how employees are to
be paid, the legislature left it to the discretion of school boards to determine how to make such
payments.” Id. at 3; cf: Tex. Att’y Gen. Op. No. MW-213 (1980) (Comptroller ofPublic Accounts
may not issue pay “warrants” by magnetic tape transfer in light of specific statutory requirement
regarding payment “warrants”). Similarly, in Attorney General Opinion JM-66, this office
considered whether the state treasurer was authorized to use a wire transfer system to remit and
collect funds within the state treasury absent specific statutory authority to do so and concluded in
the affirmative. See Tex. Att’y Gen. Op. No. JM-66 (1983). No provision addressed the movement
offunds withinthe state treasury, id. at 1, and because the funds would be transferred within the state
treasury, no constitutional or statutory provisions regarding withdrawal of funds from the treasury
were implicated by the wire transfer, id. at 2. Accordingly, use of a wire transfer system within the
treasury was controlled only by the statutory provision regarding remittances to the treasurer
The Honorable Susan D. Reed - Page 3 (X-0231)
specifying certain ways in which the remittances could be made. Id. The remittance provision,
however, was permissive rather than exclusive: it allowed remittance by the enumerated methods,
but did “not limit the treasurer to the stated methods of collection” or prohibit other methods. Id.
As reflected in these opinions, the authority to transfer funds electronically may be implied absent
specific requirements governing the mode of transfer.
No provision specifically governs the mode of transfer of county tax funds from the tax
assessor-collector’s account in the county depository to the county treasury. Rather, such transfers
are governed by section 113.023 of the Local Government Code, dealing with deposits made to the
county treasury generally. See Tex. Att’y Gen. Op. No. H-183 (1973) at 4 (when tax mnds are
transferred to county treasurer, deposit must be made on deposit warrant). Subsection (a) provides
that:
Except as provided by Subsection (c), each deposit made in
the county treasury must be made on a deposit warrant issued in
triplicate by the county clerk. The deposit warrant authorizes the
county treasurer to receive the amount stated in the warrant. The
warrant must state the purpose for which the amount is received and
the fund to which it is to be applied.
TEX. Lot. GOV’T CODE ANN. 5 113.023(a) (Vernon 1999). Subsection (b) directs the treasurer to
keep the original warrant, the duplicate to be signed and returned to the county clerk or, if the county
has a county auditor, the county auditor, and the triplicate to be signed and returned to the depositor.
Id. 5 113.023(b). It also provides that the “treasurer may receive money only through this procedure
except as provided by Subsection (c).” Id. Subsection(c) relieves the county clerk in a county with
more than 1.2 million inhabitants of any duties regarding deposit warrants and authorizes the
commissioners court in any other county that has a county auditor to relieve the county clerk of those
duties. Id. 5 113.023(c). If the county clerk is so relieved, the treasurer is directed to receive all
deposits and prepare a receipt in triplicate for the money received and the county auditor is directed
to prescribe a system consistent with subsection(c) to be used by the county treasurer for receiving
and depositing money. Id.
We presume subsections (a) and (b) of section 113.023 apply here. Although Bexar County
currently has an estimated population in excess of 1.2 million inhabitants, it did not have the
requisite population in 1990. See 1 BUREAU OF THE CENSUS, U.S. DEP’T OF COMMERCE, 1990
CENSUS OF POPULATION: General Population Characteristics: Texas 1 (1992) (Bexar County
population shown to be 1,185,394). Therefore, it is not subject to the procedures of subsection (c)
of section I 13.023. See TEX. GOV’T CODE ANN. 5 3 11.005(3) (Vernon 1998) (“‘Population’ means
the population shown by the most recent federal decennial census.“). And given your request, we
presume that the Bexar County Auditor has not otherwise under subsection (c) prescribed a system
to be used by the Bexar County Treasurer for receiving and depositing money.
The Honorable Susan D. Reed - Page 4 (X-0231)
While subsections (a) and@) of section 113.023 require any transfer of funds to the county
treasurer to be made on a deposit warrant, Tex. Att’y Gen. Op. No. H-183 (1973) at 4, they do not
specify how the transfer itselfis to be made. By failing to specify, these subsections give depositors
the discretion to transfer funds for deposit in the county treasury by reasonable methods and the
county treasurer the discretion to accept transfers made by reasonable methods. See Tex. Att’y Gen.
Op. Nos. JM-773 (1987) at 2, JM-66 (1983) at 2. Electronic transfer of funds is clearly a reasonable
method oftransferring funds. See Tex. Att’y Gen. Op. No. JM-773 (1987) at 3 (legislative history
suggests legislature considers electronic funds transfer system to be reasonable system ofpayment).
Accordingly, we conclude that county tax funds may be electronically transferred from the tax
assessor-collector’s account to the county treasury.
As to who may initiate the electronic transfer, we conclude that the tax assessor-collector is
authorized to initiate the electronic transfer from the tax assessor-collector’s account in the county
depository to the county treasury based on the statutory scheme. We also conclude that only the tax
assessor-collector is authorized to initiate the electronic transfer. The tax assessor-collector is
required to deposit the taxes collected by that officer in the county depository and controls those
funds pending their transfer to the appropriate taxing unit, including the county. TEX. Lot. GOV’T
CODEANN. 5 116.113(b) (Vernon 1999); TEX.TAXCODEANN. 5 31.10(a) (Vernon 1992). The tax
assessor-collector is the officer required to transfer the county tax funds to the county treasurer. TEX.
LOC. GOV’T CODE ANN. 5 113.021(a) (Vernon 1999); TEX. TAX CODE ANN. 5 31.10(a) (Vernon
1992). Under section 113.023 of the Local Government Code, the tax assessor-collector is
necessarily the depositor of the funds. It follows that the tax assessor-collector is authorized to
initiate the electronic transfer to make the deposit.
The county treasurer is not authorized to initiate the electronic transfer because that officer
neither controls the tax funds in the tax assessor-collector’s account nor has authority to transfer the
funds from the tax assessor-collector’s account. We do not believe that the deposit warrant under
section 113.023 ofthe Local Government Code provides transfer authority with respect to the county
tax funds. The section 113.023 deposit warrant simply authorizes the county treasurer to receive the
transferred county tax funds and apply them to the appropriate county fund: “The deposit warrant
authorizes the county treasurer to receive the amount stated in the warrant. The warrant must state
the purpose for which the amount is received and the fund to which it is to be applied.” TEX. Lot.
GOV’T CODE ANN. 5 113.023(a) (Vernon 1999).
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Finally, we note that you appear to rely on section 113.007 of the Local Government Code’
or section 2256.05 1 of the Government Code,* as the basis for the tax assessor-collector’s authority
to transfer funds by electronic means. This office has previously determined that section 113.007
of the Local Government Code, while still on the books, has been repealed. See Act of May 18,
1995, 74th Leg., R.S., ch. 402, $5 5, 6, 1995 Tex. Gen. Laws 2958, 2970 (repealing legislation
enacting the substance of section 113.007 and providing that chapter 402 controls over conflicting
provision of legislation codifying that substance at section 113.007); Tex. Att’y Gen. LO-96-023,
at 2-3 (concluding that section 113.007 is repealed). Section 2256.051 of the Government Code
governs the transfer of funds from a public entity for investment in authorized securities. In contrast,
the present situation involves a transfer from the tax assessor-collector’s account to the county
treasury (and within the county depository). Furthermore, although we do not believe that section
113.007 of the Local Government Code and section 2256.05 1 ofthe Government Code are relevant
to the question you pose, we do not interpret their enactment expressly authorizing electronic transfer
of funds to mean that electronic transfer may not be used to transfer monies to the county treasury
unless it is specifically authorized. These explicit statutory authorizations may have been necessary
to allow payment by electronic transfer given the general requirement that no money may be
expended or withdrawn from the county treasury except by check or warrant. See TEX. LOC. GOV’T
CODE ANN. 5 113.041 (Vernon Supp. 2000); id. ch. 156 (Vernon 1999) (county may establish
electronic funds transfer system to make authorized transfersfrom county treasury); Tex. Att’y Gen.
Op. No. JM-773 (1987) at 4 (predecessor to chapter 156 of the Local Government Code authorizing
county to use electronic transfer system may have been necessary because of requirement that
counties expend monies by “check or warrant”).
‘Section 113.007 provides that “[a] countytaxassessor-collectormayuse electronicmeans totransferorinvest
ad valorem taxes collected on behalf of the county or under a contract with another taxing unit.” TEX. LOC. GOV’T
CODEANN. 5 113.007 (Vernon 1999). Butsee Act ofMay 18,1995,74tb Leg., R.S., ch. 402, $5 5,6,1995 Tex. Gen.
Laws 2958, 2970 (repealing legislation enacting the substance of section 113.007 and providing that chapter 402
controls over conflicting provision of legislation codifying that substance at section 113.007); Tex. Att’y Gen. LO-96.
023, at 2-3 (concluding that section 113.007 is repealed).
‘Section 2256.05 1 provides as follows: “Any local government may use electronic means to transfer or invest
all funds collected 01 controlled by the local government.” TEX. GOV’T CODEANN. 5 2256.051 (Vernon 2000).
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SUMMARY
County tax funds may be electronically transferred from the
county tax assessor-collector’s account in the county depository to the
county treasury. Only the county tax assessor-collector is authorized
to initiate electronic transfer of the funds.
N CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Sheela Rai
Assistant Attorney General - Opinion Committee