Untitled Texas Attorney General Opinion ( 1988 )

THE ATTORXEY GENERAL
OF TEXiUl
February 15, 1988
Honorable Mike Driscoll Opinion No. (JM-856)
Harris County Attorney
1001 Preston, Suite 634 Re: Whether a sheriff may use
Houston, Texas 77002 his officeholder or campaign
funds to pay or reimburse cash
shortages in his official
account (RQ-1070)
Dear Mr. Driscoll:
You state that a cash shortage of $1,500 occurred in
the bonding section of the Harris County Sheriff's office.
You also state that at the request of the county auditor
to account for the shortage, the sheriff used his personal
funds to replace the missing cash. You ask whether the
sheriff may use his campaign or officeholder contributions
to reimburse himself for this use of his personal funds or
whether his political contributions could have been used
originally to replace the missing cash.
Title 15 of the Texas Election Code regulates
political funds and campaigns. Restrictions on political
contributions and expenditures are found in chapter 253 of
the Election Code. Section 253.035(a) of the Election
Code prohibits the conversion to personal use of political
contributions accepted on or after September 1, 1983.1
"Personal use" is defined by Election Code section
253.035(d) as follows:
(d) In this section, 'personal use' means
use that orimarilv furthers individual or
familv vurvoses not connected with the
performance of duties or activities as a
1. This opinion assumes that the political funds
from which the payment or reimbursement would be made were
accepted on or after September 1, 1983. There did not
exist any personal use restriction on political contribu-
tions before that date.
p. 4139
Honorable Mike Driscoll - Page 2 (JIG856)
candidate for or holder of a vublic office.
The term does not include:
(1) pavments made to defrav ordinarv and
necessarv exoenses incurred in connection
with activities as a candidate or in connec-
tion with the verformance of duties or
activities as a vublic officeholder, in-
cluding payment of rent, interest, utility,
and other reasonable housing or household
expenses incurred in maintaining a residence
in Travis County by members of the legisla-
ture who do not ordinarily reside in Travis
County: or
(2) payments of federal income taxes due
on interest and other income earned on
political contributions. (Emphasis added.)
The reimbursement of personal funds from political
contributions is permissible, if the original disbursement
was for campaign or officeholder purposes. Election Code
§253.035(h).2 The sheriff's use of political funds to
replace a cash shortage in an official account or to
reimburse himself for such a payment is prohibited if the
disbursement of political funds is considered a personal
use. A civil sanction is imposed by Election Code section
253.035(f) for a conversion in violation of the personal
use restriction.
Before we can determine whether the payment or
reimbursement from political contributions is permissible,
we must establish the sheriff's statutory duties in regard
to the money in his official account. Article 17.02 of
the Code of Criminal Procedure defines bail bond as
follows:
A 'bail bond' is a written undertaking
entered into by the defendant and his
sureties for the appearance of the principal
therein before some court or magistrate to
answer a criminal accusation: provided,
however, that the defendant upon execution
2. Your request does not suggest that any campaign
purpose was involved in the transaction: therefore, we
will consider your question only in the context of
officeholder purposes.
p. 4140
Honorable Mike Driscoll - Page 3 (JM-856)
of such bail bond may deposit with the
custodian of funds of the court in which the
prosecution is pending current money of the
United States in the amount of the bond in
lieu of having sureties signing the same.
Any cash funds deposited under this Article
shall be receivted for bv the officer
receivina the same and shall be refunded to
the defendant if and when the defendant
comnlies with the conditions of his bond,
and uvon order of the court. (Emphasis
added.)
A sheriff's authority to take a bail bond in a misdemeanor
case is found in article 17.20 of the Code of Criminal
Procedure, which states:
The sheriff, or other peace officer, in
cases of misdemeanor, may, whether during
the term of the court or in vacation, where
he has a defendant in custody, take of the
defendant a bail bond.
In addition to the issuance of receipts required by
the Code of Criminal Procedure, article 17.02, sunra, the
sheriff may be required by article 17.39 of the Code of
Criminal Procedure to keep a detailed record of each bail
transaction. That article provides:
A magistrate or other officer who sets
the amount of bail or who takes bail shall
record in a well-bound book the name of the
person whose appearance the bail secures,
the amount of bail, the date bail is set,
the magistrate or officer who sets bail,
the offense or other cause for which the
appearance is secured, the magistrate or
other officer who takes bail, the date the
person is released, and the name of the
bondsman, if any.
You do not indicate in your request letter whether the
Harris County Sheriff keeps the record contemplated by
this provision. However, we do understand that the cash
shortage was discovered as a result of discrepancies
between the cash on hand and copies of the receipts for
cash issued pursuant to article 17.02 of the Code of
Criminal Procedure, suora.
Before beginning to perform the duties of his office,
a person elected as sheriff must take an oath and execute
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Honorable Mike Driscoll - Page 4 (JM-856)
a bond. A failure to take the oath and to execute the
bond in a timely manner renders the office of sheriff
vacant. Local Gov't Code 585.001. Among the statutory
conditions of the mandatory bond are the sheriff's
faithful performance of the duties of office established
by law and the sheriff's accounting for and paying to
persons authorized to receive them the fines, forfeitures,
and penalties the sheriff collects for the use of the
state or a county. Local Gov't Code §85.001(b).
We understand that the cash shortage in Harris County
is attributable not to the sheriff personally but to one
of his deputies. This fact is of no legal consequence,
because the sheriff is statutorily responsible for the
official acts of a deputy. Local Gov't Code 585.003(d).
The sheriff may require a deputy to execute a bond or
other security, and the sheriff has the same remedies
against a deputy and his sureties as any other person has
against the sheriff and the sheriff's sureties. Id.
In Attorney General Opinion H-751 (1975), this office
was asked about the liability of a sheriff and his bonding
company for shortages of fines and cash bonds. The
opinion relied on former article 6870, V.T.C.S. (now
codified as Local Gov't Code 585.003(d)), to find a
sheriff liable for the misappropriation of cash bonds and
fines collected by his deputies. The sheriff's bonding
company was also liable for the loss discussed in Attorney
General Opinion H-751:
Concerning the liability of the bonding
company, the general rule is that \[i]n
order to hold such a surety, there must be a
violation of the condition of the bond.'
Aetna Casualty & Suretv Co. v. Clark, suvra,
at 80. Since the accounting for fines is an
express condition of the bond, and since the
accounting for bail bonds is a duty required
of sheriffs by law and thus also a condition
of the bond, in our opinion the surety would
be liable for the failure of the sheriff to
account for these funds whether or not the
failure to account is due to a deputy.
Attorney General Opinion H-751 (1975). See also Attorney
General Opinion JM-517 (1986) (the commissioners court and
county auditor may not relieve a justice of the peace of
liability for shortages of public money received by the
justice): Attorney General Opinion H-360 (1974) (district
clerk liable for disappearance of trust funds in clerk's
possession).
p. 4142
Honorable Mike Driscoll - Page 5 (JM-856)
Thus, among a sheriff's statutory duties are the
execution of a bond to account for funds he collects:
refunding a defendant's bond money upon the defendant's
compliance with the conditions of his bond: liability for
the official acts of his deputies; and the faithful
performance of his duties. In our opinion, a cash
shortage in an official account reflects a failure on the
part of the sheriff or his deputy to perform his duties in
accordance with law. The sheriff and his sureties may be
sued for any shortage.
Your request indicates that the sheriff has an agree-
ment with his bonding company that he may be sued by the
company for any payments made by the sheriff on the
sheriff's bond. As you describe it, the sheriff is in a
position of personal liability to his bonding company for
any loss it sustains on the sheriff's behalf.
The sheriff of Harris County is responsible for the
supervision of hundreds of employees. In our view, he
cannot realistically personally supervise every act of
every one of those employees. Proper accounting for those
funds clearly seems to be an "ordinary and necessary
expense" of office. In our opinion, a payment or
reimbursement from the sheriff's political fund account
for the purposes described here would not constitute a
diversion to "personal use," as defined in section
253.035(d). We believe that such an expenditure for the
purposes described herein would be a "payment made to
defray ordinary and necessary expenses incurred in
connection with the performance of duties or activities as
a public officeholder."
SUMMARY
A sheriff may use his campaign or office-
holder contributions to pay or reimburse cash
shortages in his official account. The use
of political funds for this purpose would
not violate the personal use restriction of
section 253.035 of the Election Code.
J-h
Very truly you
N
JIM MATTOX
Attorney General of Texas
NARY KELLER
First Assistant Attorney General
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Honorable Mike Driscoll - Page 6 (m-856)
mu MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General
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