Untitled Texas Attorney General Opinion

Ronorable Erwin W. Barton Opinion No. ``-585
Chairman
Human Services Committee Re: Whether the county auditor or
Texas House of Representatives the county treasurer is the county
P. 0. Box 2910 payroll disbursing officer for,
Austin, Texas 78769 purposes of Title llOB, V.T.C.S.,
governing public retirement systems
Dear Representative Barton:
Title 1lOB. V.T.C.S., contains those statutes governing the
creation and operation of the Employees Retirement System of Texas,
the Teacher Retirement System of Texas, the Judicial Retirement System
of Texas, the Texas Count:{ and District Retirement System, and the
Texas Municipal Retirement System. The various statutes governing the
- several systems provide that a payroll disbursing officer or employee
for each employer collects member contributions by deducting such
contributions from the compensation of each member that it employs.
V.T.C.S. Title llOB, P525.402, 35.403, 55.403, 65.402. You wish to
know whether, in counties of 10,000 or more population, the county
auditor or the county trez.surer (in those counties which still have
such officers) .is the county payroll disbursing officer for purposes
of section 55.403 of Title 1lOB. V.T.C.S. We conclude that the proper
officer is the county treasurer. We do not address the issue as to
who is the proper disbursing officer or employee in those counties in
which the office of county treasurer has been abolished.
Section 55.403(e) of Title IlOB, V.T.C.S., provides the
following:
The treasurer or+sbursing officer of each par-
ticipating subdivision shall:
(1) make deductions from each member's com-
pensation for contributions to the retirement
system;
(2) transmit monthly, or at the time designated
by the board of trustees, the payroll and other
pertinent information prescribed by the board; and
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Honorable Erwin W. Barton - I?age2 (JM-585)
(3) pay the deductions to the board of
trustees at the board's home office. (Emphasis
added).
We are required to construe section 55.403(e) in a way that
expresses only the will of the makers of the law,
not forced nor st.cained,but simply such as the
words of the law in their plain sense fairly
sanction and will clearly sustain.
Railroad Commission of Texas v. Miller, 434 S.W.2d 670, 672 (Tex.
1968). The very terms of ?he statute itself reposes the responsi-
bility for making .employee .payroll deductions in-the treasure;, not
the auditor; Texas law clearly makes the treasurer, not the auditor,
the county disbursing offic,x.
Article XVI, section 44, of the Texas Constitution provides,
inter alla, that the legi$,lature shall prescribe the duties of the
office of county treasurer. Article 1709, V.T.C.S., sets forth the
duties of the county treasurer and provides in pertinent part that
[tlh= County Trwsurer, as chief custodian of
county finance, iwll receive all moneys belonging
to the county fz,om whatever source they may be
derived: keep anC1 account for the same in a
designated depository or depositories; and pay and
apply or disburse the same, in such manner as the
Commissioners C&t may require or direct, not
inconsistent with constituted law. (Emphasis
added).
Article 1709a, V.T.C.S., pr#rlidingspecifically for the receipt, safe-
keeping and disbursement of county funds, sets forth at section 4 the
folliiwingin pertinent part:
From and after the effective date of this Act the
County Treasurer & each county shall disburse a
moneys belonging to the county, for whatever
purpose they may-be claimed, and shall pay and
apply the same ,u? required by law. No moneys
shall be expend=7 or withdrawn from the county
treasury except b:rchecks or warrants drawn on the
county treasury, whether such moneys are in a
county depositor:r as required by law or not.
(Emphasis added).
V.T.C.S. art. 1709a, 94.
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Honorable Erwin W. Barton - :?age3 (JM-585)
Article 1651, V.T.C.S., sets forth the duties of the county
auditor and provides that
[t]he Auditor sh,l:Llhave a general oversight of
all the books and records of all the officers
of the county, district or state, who Mayo be
authorized or required by law to receive or
collect any~money, funds, fees, or other property
for the use of, or belonging to, the county. . . .
See also V.T.C.S. arts. 1653, 1709a.
The word "disburse" gen'erallydenotes "pay" or "expend." Woodford
v. United States, 77 F.2d 861, 865 (8th Cir. 1935); Wall v. Close, 14
So. 2d 19, 36 (La. 1943); ---
see also People v. Battin, 143 Cal. Rptr. 731
(Cal. Ct. App. 1978); --
Browx v. Honiss, 68 A. 150 (N.J. 1907). It is
clear from an even cursory reading of section 55.403 of Title 1lOB;
V.T.C.S., that the county treasurer is the proper officer to deduct
member contributions because he is the officer whose responsibility it
is to "disburse" county funds. This conclusion is consistent with
earlier attorney general o:?inionsthat discuss the-various responsi-
bilities of the county treasurer and the county auditor.
In Attorney General O``inionV-1387 (1952), this office was asked
whether a commissioners cour'tcould require a county auditor to handle
payroll deductions, accounts, and reports regarding social security
for county employees. The opinion held that
[u]nder the above authorities and articles [setting
forth the duties of the county treasurer and the
county auditor] we agree with you that it is the
duty of the coun:y treasurer to assess the amount
of the contribui:ions necessary from the various
county employees, to collect this amount, and to
transmit same to the state agency. We further
agree that under article 1651, V.C.S., the county
auditor is required to check, compare, and audit
the social secweity services of the county
treasurer, and to certify the results to the proper
officials.
In Attorney General Opinion V-711 (1948), this office was asked
whether the county auditor, pursuant to the duties imposed by article
1656a. V.T.C.S., had tht! authority to deduct employees' soup
insurance premiums from enployees' salaries when so authorized by
employees. Citing the above statute setting forth the duties of the
county auditor, this office 'heldthat
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Honorable Erwin W. Barton - I?age4 (JM-585)
[i]n view of the foregoing provision, neither the
collection nor the deduction of the contributions
from the salaries of the county employees consti-
tutes any functimi of the County Auditor. . . .
The collection and deduction should be performed
by the proper couxty officer who issues the checks
on the County Tr,easurer for the payment of the
salaries of the employees included in the group
insurance plan.
.
See also Attorney General 0p:LnionWW-1107 (1961).
Accordingly, we conclude that the proper county payroll dis-
bursing officer for purpos'zs of Title IlOB, V.T.C.S., is the county
treasurer rather than the cxmty auditor.
SUMMARY
In counties with a population of 10,000
inhabitants or rare, the proper county payroll
disbursing officer for purposes of Title llOB,
V.T.C.S., is the county treasurer rather than the
county auditor.
J
Very truly yours
&
JIM MATTOX
Attorney General of Texas
JACK HIGBTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
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