Untitled Texas Attorney General Opinion ( 1964 )

THEATTORNEY GENERAL.
OFTEXAS
Honorable Henry Wade Opinion No. C-326
District Attorney
Dallas, Texas Re: Use of the change fund
created by the provisions
of Article 1630b, V.C.S.,
by county officials, and
Dear Mr. Wade: related questions.
Your request for an opinion on the above subject matter
asks the following questions:
"1. Is the law violated, and if so what
is the penalty, when a valid county warrant,
payable on demand, is cashed by a public em-
ployee or official out of a duly authorized
change fund?
"2 . Is the law violated, and if so what
is the penalty, when a valid county warrant,
payable on demand, or otherwise, is cashed by
a public employee or official out of receipts
of a county office for taxes, fees, sales,
services, rentals, deposits or other purposes?
"3. Is the law violated, and if so what
is the penalty, when a valid county warrant,
payable on demand or otherwise, is cashed by
a public employee or official out of his per-
sonal ,funds?
"‘4
. Is the -law violated, and if so what
is the penalty, when a personal check or draft
of an employee, the official or another person,
is cashed by a public employee or official out
of a duly authorized change fund?
"5. Is a law violated, and if so what is
the penalty, when a personal check or draft of
an employee, the official or another person, is
cashed by a public employee or official out of
receipts of a county office for taxes, fees?
sales, services, rentals or other purposes?'
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Hon. Henry Wade, page 2 (C-326)
Article 1630b, Vernon's Civil Statutes, provides:
"Section 1, The Commissioners Court of
any county having a population of over six
hundred thousand (600,000) by the last preced-
ing Federal Census may.set aside from the gener-
al fund an amount not to exceed One Thousand
Dollars ($1,000) for the use of any county or
district official collecting public funds as a
change fund which said fund is to be used only
for making change in connection with collec-
tions due and payable to the county, the State
of Texas or any political subdivision for which
collections are lawfully made by said county or
district official.
"Sec. 2. The bond of each and every public
official who receives such a change fund shall
cover his responsibility for the correct account-
ing and disposition of said change fund.
"Sec. 3. It shall be unlawful to use such
change fund for making loans or advances, or for
cashing checks or warrants of any kind.
"Sec. 4. The Commissioners Court shall with-
in its discretion have the right to recall an?
part or all of said change funds at any time.
The provisions of Article 163Ob, above quoted, are appll-
cable to Dallas County since Dallas County has a population of
927,609 inhabitants according to the last preceding Federal Cen-
sus . Under the provisions of Article 1630b, the Commissioners
Court of Dallas County is authorized to set aside from the gener-
al fund an amount not to exceed $l,OOO.OO for the use by any
county or district official collecting public funds, as a change
fund. Section 1 of the Act specifically states that the change
fund is to be used only for making change in connection with col-
lections due and payable to the county, State or any political
subdivision. Section 3 of the Act specifically prohibits the mak-
ing of loans or advances, and it specifically prohibits cashing
checks or warrants of any kind. Section 2 of the Act requires
that every public official who receives such a change fund shall
cover his responsibility for the correct accounting and dlsposi-
tlon of said fund by a bond.
In answer to your first question, you are therefore advis-
ed that the cashing of a county warrant by a public official out
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Hon. Henry Wade, page 3 (c-326)
of the change fund constitutes a violation of the provisions of
Article 1630b. No specific penalty is provided in the Act for
its violation; however, the surety and the public official on the
bond prescribed by Section 2 of Article 163Ob would be liable if a
loss occurs through a violation of the provisions of Article 163Ob.
Article 2551, Vernon’s Civil Statutes, provides for the se-
lection of county depositories. Article 2552 provides that it shall
be the duty of the county degository to pay upon presentment at
the county seat of the county all checks or warrants drawn by the
county treasurer upon the funds of said county deposited in the said
depo&itory as long as such funds shall be in the possession of such
depository subject to such checks or warrants. Article 2554, Ver-
non’s Civil Statutes, provides in part:
"It shall be the duty of the county treas-
urer upon the presentation to him of any war-
rant, check, voucher, or order drawn by the
proper authority, if there be funds sufficient
for the payment thereof on deposit in the ac-
count against which such warrant is drawn, to
endorse upon the face of such instrument his
order to pay the same to the payee named~there-
in and to charge the same on his books to the
fund upon which it is drawn. , . .”
County warrants are required to be cashed in the manner pre-
scribed by the provisions of Articles 2552 and 2554, and we know
of,no statutory provision authorizing other county officials to
cash county warrants. On the contrary, Section 61 of Article XVI
of the Constitution of Texas requires that the officials covered
by your request be compensated on a salary basis and further re-
quires that all fees earned by county officials shall be paid in-
to the county treasury for account of the proper fund. Wichita
County v. Robinson, 155 Tex. 1, 276 S.W.2d 509 (1955).
In construing the provisions of Article 2554, Vernon’s Civ-
il Statutes, it was held in Attorney General’s Opinion V-1343
(1951):
“The county treasurer is not authorized to
draw a check upon the county depository and take
up a warrant drawn by the proper authority. It
is the duty of the county treasurer to endorse
the warrant as prescribed by Article 2554 and
deliver it to the payee, and the payee should
present the warrant to the depository for pay-
ment. Att’y Gen.Op. O-4462 (1942). Further,
-1558-
Hon. Henry Wade, page 4 (C-326)
there is no express or implied authority ,for
the county treasurer to withdraw moneys from the
jury fund in the county depository."
A similar conclusion was reached in Attorney General's
Opinion ~-675 (1959) concerning disposition of fees received by
the county tax assessor-collector for performing assigned duties
and for assessing and collecting taxes for an Independent school
district.
It is our opinion that the principles of law governing
disposition of fees of office are equally applicable to other of-
ficial receipts of a county office and that all receipts must be
deposited in the proper fund. Therefore, you are advised that the
cashing of a county warrant out of receipts of a county office is
not authorized.
Whether a violation of the penal laws of the State of Texas
occurs in cashing of a county warrant by a county official is
dependent upon facts which are not presented in your request, e.g.,
did such act result in a loss to the county; was there a misappro-
priation of public monies to private use; did the county official
become in any way Interested in the county warrant, in violation
of Article 371, Vernon's Penal Code. The answers to these ques-
tions are dependent upon other facts not stated in your request.
The conclusions reached with reference to a county warrant
would be equally applicable to cashing of a personal check or
draft, with the exception thatthe provisions of Article 371 would
not normally be applicable to personal checks. You are therefore
advised that cashing of county warrants and personal checks out of
receipts of a county office is not authorized. Any loss resulting
from such acts could be recovered on the county official's bond.
Whether such acts constitute a violation of the Penal Code is de-
pendent upon facts not stated in your request.
SUMMARY
County warrants cannot be cashed by a
public employee or official out of a duly au-
thorized change fund; neither can countv war-
rants or personal drafts be ca.s,hed,
out of the
receipts of a county office.
Yours very truly,
WAGGONER CARR
Attorney General
John Reeves
JR:ms y Assistant
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Hon. Henry Wade, page 5 (C-326)
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Gordon Cass
Malcolm L. Quick
Brady Coleman
V. F. Taylor
APPROVED FOR THE ATTORNEY GENERAL
By: Roger Tyler
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