Untitled Texas Attorney General Opinion ( 1944 )

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291
‘OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GR~“`` SELLERS i
*,,~*N~v QLMCRAL
.
i.
.;:.
gonorable Mwrell L Buckaer, Chairman
&me, Fish and Oyster Couuniasloa *A+-q
union Terminal Stat Ion
Dallas, Texas
Deer s!r i ‘.
on from you as
to the method of how
handle ~ioneg collect c
on at Austin.”
utsct that ve are con-
the Com~I.ssiou
The duties of the Sam and fish wardens with re-
Bpcct to funds collected for liccnsas ore not set out in a
single provision of the statute but such provlstons as HO do
have appear as a part of the act providing for the particular
license involved. Articles 923 qa, Scctiou 3; 934 a, Section
8; 93’1 b, Section 7; V.A.P.C., and Article hOj2a, Section 2,
*.
Doao~ble Murrell L. Buckner; pa&e 2
.
Vernon’s Annotated Civil Statutes, These provisions are in
substantial agreement end require the warden to remit all
moneys collected to the Commission et AUstln ‘Zor deposit in
the State Treasury. Articles 923 qe, Section 3, end 934 e
scctlon 8, V.A.P.C., require that the renittance be made ‘be-
fore the 10th day of the month following the sale of such
license.’ Article 934 b, SeCtiOn 7, V.A.P.C., specifies the
time of remittance as ‘not later than the tenth day of the
month following their collection.R Article 4032a, Section 2,
V.A.C.S., sets the remittance date at “on or before the 10th
day of the month next succeeding that during which said li-
cense was issued.” We think that Article 4025 V.A.C.9
(Acts 1913, p. 297; Acts 1923, 2nd C.S., p. 61), insofai’as
the same would require weekly remittences of license fees
collected under the fish and oyster lews along the coast, has
been repealed by the subsequently enacted special provisions
cited above. 39 Tex. Jur . 139; 39 Tex. Jur. 150. Thus we
think the warden complies with the governing statutes on re-
mittance dates If he sends the license Sees to the Commission
by the tenth of the month followiw their collection.
Such provisions, th.ough complied with, still leave
the warden at e loss as to the proper method of handling the
funds during the period of time pending remittance, which, as
to some of the fees, might be thirty or forty days. During
such period he is the custodian of public funds and as ue
understand It, though charged riith their safe kccplng and
transmission, he does not have available e safe or vault for
8uch purpose. Furthermore, the Commission is not author-
ized by law to designate depository banks for its funds, but
is charged with the duty of placing than in the State Treas-
ury. In view of this situation may the warden utilize pre-
sent day methods cormnon to all commercial transections? Hay
he accept checks for licenses, deposit them for collection
end deposit funds in cofiimercia.1 banks for safekeeping and
trausnisslon to Austin? Or, on the other hand, in this day
Of deposit Insurance and rapid transfer of credits, Is he
relegated to the backl.loods method of cradling the State’s
money in his boot or a money belt until remittance day rolls
around?
In this connection let us consider the liability of
the wardsus as public officerc vlth respect to these funds.
In 34 Texas Jurisprudence, at pa&e 4’74, It IS stated that:
..
Roaofoblc hrrbll L Buckner,. pogo 3
I ;’
‘An otflcer who is the custodinn of public
money doca +ot occupy the position of a mere bailee
for hire, vho la responsible only for such cere of
the money~as a prudent rne~ vould take of his ovn~
nor is he. a ‘*debtor’ to the county vithib;.the or-
diaary meaning of the term, since if he vere, the
money vould be his property and he could not be
guilty of misopplylnS it as the offense Is def incd
in the Penal Code. He Is bound to account for and
peg over the money to the person entitled, less his ,_
commissions, or his sureties mat pay it for hiu;
and neLther he nor his sureties are relieved from
liability by the fact that the money vas stolen ulth-
out his fault or VAQ lost by being deposited in a
bank vhlch failed without negligence on his part,
except in some cnaes where the bank ha.s been dosig-
aated ea a public depository.”
This rule vaa quoted vlth npproval in the late case of &crican
Indemnity Co., et al., vs. State, (Civ. App., San. Antonio), 104.
S. Il. (2d) 68,. the quotation being derlved from Town of Cmeron
vs. ~lcks, 65 N. Va. 484, 64 S.E. 832, 835, 17 Ann. Gas. 926.
The language is as follows :
“By the great weight of authority, the cust-
odian of public money is not n boilee, bound only
to the exerclae o? a high degree of care, prudence
and’dIligcnce for its snfety, end excusable for the
loss thereof by fire, robbery, theft, or bcnk fail-
ure, vhen such loss is not In any sense due .to neg-
ligence or miwonduct on hia pert, but a debtor and
insurer to the ext%ent of the amount received, ex--
cuaable for no 1oYJaos cxcopt those resulting from
acts of God or the public enemy.” See also 93’ A.L.R.
819.
It therefore appears that a varden charged by l&
vith the cuatcdy, safekeeping and tranaM.aslon of license fee
funds, is absolutely liable for such funds until the moneys
are actually in the hands of the Commiaaion at Austin in the
absence of the intcrvcntion of an act vf Cod or the public
enemy. J.nd, while the use of the ordinary bonklnS channels
is not effirmctively authorized by h\J, vc thilL11 that in this
294
Ronorable Hurrell L. Buckner, page 4
day their use should be expected, if not required. Indeed,
some cases hayo held that It would be aegl1genc.e not to use
such facilities. See United States Fidelity and. Gueraaty
co. vs. Carter, (1933) Va., 170 S.E. 764; 90 A.&R. 191.
Since. no such’methods are provided by law, the warden should
.rcalIze hovever, that he adopts these methods at his own
peril, and does not thereby relieve himself of the liability
placed upon him as an Inssurer 4s to these fur&. It follows
that If ,a varden assumes this risk as he most likely will,
he will accept a check In payment for a license at his dun
risk -- a bank deposit will be made at his risk, and use of
a bank check or draft for remittance vi11 be made et ,hla onn
rlak. We add a caution at this point:.that in m&sing a de-
posit of State funds, a warden should not make the deposit In
his personal account, nor should he make a general deposit of
these f unda, Rathor, to avoid the possibility of violation
of the penal statutes dealing with the misappropriatioh of
funds he should make a special deposit, opening a trust ac-
count In which the State funds are deposited sole1 Sor safe-
keeping and tranamIasIon to Austin. See Articles es and 87,
V.A.P.C.; 7 Am. Jur. 550; 7 Am. Jur, 548. Furthermore,
though a check is ordinarily only a couditionzl payment, if
such a check is received by a warden for a llccnae and made
payable to the Game, Fish and Oyster ConmissIon, we think the
Varden has no authority to endoree the instrument for the Com-
mission In the absence of a specific delegation by the Com,;liu-
sion of that authority. 40 Em. Jur.. 763; Waggoner Bank &
Trust Co. vs. Gamer Co., et al., 213 9. W. 927; 2 Pm, Jvr.
141.
We slncerely hope that our views on this question
will aid the Commission In the performance of its duties.
Very truly your*
ATTORRZYGENERALOF TiXAS
RA:db Assistant
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