Untitled Texas Attorney General Opinion ( 1963 )

Hon. W. P. Herms, Jr. Opinion No. C-49
County Auditor
Wailer County Re: Various questions concerning
Hempstead, Texas county depositories.
Dear Mr. Herms:
The questions posed by your opinion request are as
follows:
"1. In accordance with Article 2552 and 2553
R.C.S. is it not mandatory upon the Farmers
State Bank to designate a place, persons or
corporation at said county seat where a 1:I checks
drawn upon County Funds by the County Treasurer
will be paid and also designate 'the place at
the county seat where, and the person by whom,
all deposits may be received from the Treasurer
for such deuositorv' (Italics mine Article 2552
and 2553)? If this statute is to be interpreted
as it reads, then such designations must be
without any restrictive qualifications, since it
is not contemplated that funds be mailed to de-
pository anywhere outside the county seat.
"2. When County Treasurer, Tax Collector, County
Hospital or other official deposits County Funds
with the place designated at county seat by the
Farmers State Depository Bank should not such de-
pository, through its designated agent be re-
quired to assume the responsibility of'said funds
at time of deposit at such designated place, and
should not such designated place issue deposit
voucher to depositing county official as evidence
of deposit, in the same manner that a bank issues
a deposit voucher to a depositor?
“3. If your answer to number two above is 'No',
then just when, how, and where may the county of-
ficial discharge his responsibility for such funds?
Prom an administrative standpoint we will encoun-
ter numerous difficulties and problems if county
officials are required to mail their county funds
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Hon. W. P. Hems, Jr., page 2 (C-49)
elsewhere instead of depositing them at the county
seat; . . .
8,. . .
“4. . . . should not the Commissioners t Court
obtain from the Brookshire back formal designa-
tion of Warren Loan Company setting forth in de-
tail the procedures which shall be followed and
how and in what manner Warren Loan Company shall
discharge said responsibility? Also, should not
there be filed with the Commissioners’ Court a
statement by the Farmers State Bank that said
designation is being made in conformity to Arti-
cles 2552 and 2553 R.C.S.?--this so that there
should be no misunderstanding. Do you also not
deem proper that this statement and designation
should be over the Corporate Seal of the back,
signed before a notary with the affidavit that
such person signing was so authorized to act for
said bank?”
Article 2552, Vernon’s Civil Statutes, reads as follows:
“It shall be the duty of the depository or
depositories to pay, upon presentment at the
county seat of the county, or in the case of
‘time deposits’ to pay upon presentment after the
expiration of the period of notice agreed upon,
all checks or warrants drawn by the county treas-
urer upon the funds of said county deposited with
said depository or depositories, as long as such
funds shall be in the possession of such deposi-
tory subject to such checks or warrants. For
every failure to pay such check or warrant at such
county seat either upon presentment in case of
‘demand deposits ’ or upon presentment after the
expiration of the period of notice required in the
case of ‘time deposits ’ said depository or deposi-
tories shall forfeit and pay to the holder of such
check ten per cent (10%) of the amount thereof;
and the Commissioners Court shall revoke the order
creating such depository or depositories.”
Article 2553, Vernon’s Civil Statutes, reads as follows:
“If any depository selected by the Commis-
sioners Court be not located at the seat of such
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Hon. W. P., Hems, Jr., page 3 (C-49)
county, said Commissioners Court may in its dis-
cretion require said depository to file with the
county treasurer of such county a statement des-
ignating the place at said county seat where and
the person by whom, all deposits may be received
from the treasurer for such depository, and where
and by whom all checks will be paid, said person
to be approved by the Commissioners Court; and
such depository shall cause every check to be
paid upon presentation or upon presentation at
the expiration of the period of notice in the
case of 'time deposits' at the place so desig-
nated so long as the said depository has suffi-
cient funds to the credit of said county applica-
ble to its payment."
In construing a statute we must look to the statute as
a whole to determine the legislative intent. The caption may be
considered in arriving at the legislative intent of the statute.
Texarkana & Ft. ., 121 Tex. 594,
5'1 S.W.2d 284 ( ~, - s. Co. v. Fine-
&,1:183 S.W. -833 (Tex.Civ.App; 1916); 79 Tex.Jur. 227. Statutes.
. . The caption of House Xl1 85,-Acts 1949, 51.G Leg., pi'
187, ch. 103, now compiled as Article 2553, 'rernon's Civil Stat-
utes, reads in part as follows:
11
. . . providing that the Commissioners
Court may in its discretion reauire a receiving
and paying agent at the county seat, and provid-
ing that said agent shall be approved by the
Commissioners Court; . . .'I (Emphasis added).
It is clear from the caption that the Legislature intended to make
it discretionary with the Commissioners Court whether to require
the depository to designate a receiving and paying agent at the
county seat and to require the depository to file a statement ap-
pointing such agent with the Commissioners Court. The agent must
be approved by the Commissioners Court.
Article 2553 conflicts to some extent with Article 2552,
but it is a well settled rule of statutory construction that when
two statutes are "in pari materia," the older statute will be
held to be repealed by implication to the extent of its conflict
with the newer enactment. Townsend v. Terrell, 118 Tex. 463, 16
S.W.2d 1063 (Tex.Comm.App. 1929); Tunstall v. Wornley 5% Tex.
476 (1881); First Nat. Bank v. Lee Countv Cotton Oil 60. 274
S.W. 127 (Tex.Comm.App. 19251, affirming 250 S.W. 313; 34 Tex.Jur.
145, Statutes, Sec. 77. Since Article 2553 is the newer statute,
it must take precedence over Article 2552.
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Hon. W. P. Hems, Jr., page 4 (C-49)
In answer to your first question, it is not mandatory
upon the Farmers State Bank to designate a paying and receiving
agent at the county seat. Under Article 2553, the Commissioners
Court may require the depository to designate such an agent, but
the exercise of this power is discretionary with the Commission-
ers Court.
If an agent at the county seat is designated by the de-
pository, then under the terms of Article 2553, that agent bJoUld
be responsible for deposits of county funds made with him. The
answer to your second question is in the affirmative.
Your third question does not require an answer since
the answer to the second question is in the affirmative.
As to your fourth question, Article 2553 gives the
power to the Commissioners Court to require a depository to ap-
point an agent in the county seat and also gives the Commission-
ers Court the power to require a statement from the depository
designating the agent. The statute does not spell out the type
or form of statement envisioned. It follows therefore that the
form of the statement will be left to the sound discretion of
the Commissioners Court.
SUMMARY
It is not mandatory that a county depository
designate a paying and receiving agent at the
county seat unless the Commissioners Court in the
exercise of its discretion requires such designa-
tion. The designated agent of a depository would
assume responsibility for county funds deposited
with the agent until they are received at the de-
pository. The form of the statement of a deposi-
tory designating an agent in the county seat is
left within the discretion of the Commissioners
court.
Yours very truly,
WAGGONER CARR
Attorney General
JGN:wb
B+lktfNo``
. Assistant
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‘.
Hon. W. P. Herms, Jr., page 5 (C- 49)
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
Paul Robertson
Albert Pruitt
James Strock
APPROVEDFOR THE ATTORNEYGENERAL
BY: Stanton Stone
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