Untitled Texas Attorney General Opinion ( 2009 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April 7, 2009
The Honorable H. Michael Bartley Opinion No. GA-0704
Delta County Attorney
Post Office Box 462 Re: Whether a sheriff must provide information
Cooper, Texas 75432 about funds in his custody to the county treasurer
(RQ-0753-GA)
Dear Mr. Bartley:
You state that the Delta County treasurer requested the sheriff to furnish her with copies of
the bank statements for his accounts, including forfeiture and commissary accounts. 1 The sheriff
replied that neither forfeitures to the sheriffs office nor commissary funds were county money, and
thus the statements were not available to the treasurer. See Request Letter at 2; see also TEx. CODE
CRIM. PROC. ANN. art. 59.06(a), (c)(3) (Vernon Supp. 2008) (forfeiture funds are state funds); TEx.
Lac. GOV'T CODE ANN. § 351.0415 (Vernon 2005) (commissary proceeds may be used only for
inmates' benefit or commissary operations). You ask whether the sheriff of Delta County is required
to provide the county treasurer with bank statements of his accounts. See Request Letter at 2,
Local Government Code section 115.901(a) requires the Delta County treasurer to examine
certain records held by county officers. 2 It provides as follows:
The county auditor or, in a county that does not have the
office of county auditor, the county treasurer, shall examine the
accounts, dockets, and records of ... the sheriff . .. to determine if
any money belonging to the county and in the possession of the
officer has not been accounted for and paid over according to law.
TEX. Lac. GOV'T CODE ANN. § 115.901(a) (Vernon 2008) (emphasis added).
Section 115.901 does not expressly limit the treasurer's audit authority to accounts relating
to county funds held by the sheriff. Compare id. § 115.901, with id § 112.007 (county auditor shall
lRequest Letter at 1-2 (available at http://www.texasattomeygeneral.gov). The treasurer also asked for
statements for grant funds, but the sheriff stated that he did not handle these funds. See id at 2.
2Delta County does not have a county auditor. See id at 1.
The Honorable H. Michael Bartley - Page 2 (GA-0704)
keep records showing all transactions of the county relating to county accounts, contracts,
indebtedness and county receipts and disbursements). The lack of such limitation indicates that the
Legislature intended the county treasurer to examine all accounts held by the sheriff in his official
capacity. Such access enables the treasurer to determine whether the sheriffs accounts have been
maintained correctly, including, for example, whether county funds have been commingled with
special funds. See generally Mills v. State, 941 S.W.2d 204, 206-07 (Tex. App.-Corpus Christi
1996, pet. ref d) (investigation revealed shortages in commissary fund). Further, this construction
of section 115.901 is consistent with previous determinations by this office that a county auditor is
authorized under similar statutes to audit all funds held by an officer in his official capacity, whether
or not they are county funds. See Tex. Att'y Gen. Op. No. JM-702 (1987) at 1-2, H-1185 (1978)
at 1 (construing predecessor of Local Government Code section 115.001, authorizing auditor to
examine any county officer's books, accounts, vouchers and other records). As a result, we conclude
that section 115.901 requires the county treasurer of Delta County to examine the sheriff s accounts,
including the accounts of commissary and forfeiture funds held by the sheriff, and the sheriff must
provide the treasurer with access to the bank statements for these accounts.
The Honorable H. Michael Bartley - Page 3 (GA-0704)
SUMMARY
Pursuant to Local Government Code section 115.901, the
county treasurer of Delta County is required to examine the accounts
held by the county sheriff, including accounts containing forfeiture
and commissary funds, and the sheriffmust provide the treasurer with
access to bank: statements for such accounts.
ANDREW WEBER
First Assistant Attorney General
JONATHANK. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee