Untitled Texas Attorney General Opinion

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
November 13, 2017
The Honorable Gene Stump Opinion No. KP-0174
Franklin County Attorney
200 North Kaufman Street Re: County authority related to a court's
Mount Vernon, Texas 75457 registry account (RQ-0167-KP)
Dear Mr. Stump:
You ask about county authority over a court's registry account. 1 You state that Franklin
County has a population of less than 190,000 and has a county auditor. Request Letter at 1. You
inform us that the county commissioners court granted the county treasurer "view-only" access to
all accounts having the county's employer identification number and appointed the auditor as the
county's "online bank account access administrator" for all county accounts at the county's
depository bank. 2 You are primarily concerned about the treasurer's and the commissioners
court's respective authority concerning .the court registry accounts for the county. See Request
Letter at 1.
You first ask whether the county treasurer has "administrative authority [over] a court's
registry account, including permanent online view-only access rights." Id. The county treasurer
is the chief custodian of county funds, who "shall keep in a designated depository and shall account
for all money belonging to the county." TEX. Loe. Gov'T CODE§ 113.001 (emphasis added); see
also id. § 116 .113 (a) (requiring the treasurer to deposit all of the county's funds in the county
depository). Chapter 116 of the Local Government Code governs the treasurer's duties with
respect to the general depository for county funds. Id.§§ 116.001-.060. However, funds paid into
the registry of the court do not belong to the county. See Sellers v. Harris Cty., 483 S.W.2d 242,
243 (Tex. 1972) (stating that funds paid into the court registry "are not owned by the county but
are only held in trust"). Court registry funds and certain other funds the county holds in trust must
be deposited in an account separate from the county general depository account. See Tex. Att'y
Gen. Op. No. JC-0195 (2000) at 4-5 (distinguishing between the county general depository
account under chapter 116 and the county trust depository account under chapter 117). 3
1
See Letter from Honorable Gene Stump, Franklin Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at
I (June 23, 2017), https://www.texasattomeygeneral.gov/opinion/requests-for-opinions-rqs ("Request Letter").
2
See id. and attached minutes ofthe Franklin County Commissoners Court's meetings on May 22, 2017, and
June 5, 2017.
3
Your question concerns a county with a population of Jess than 190,000, and we limit our opinion
accordingly. Within chapter 117, some provisions do not apply to a county with a population of less than 190,000.
See TEX. Loe. Gov'T CODE §§ 117.058 (accounting and disbursing provisions for counties with a population of
. 190,000 or more); 117.111-.126 (provisions applicable in a county with a population of 1.3 million or more).
The Honorable Gene Stump - Page 2 (KP-0174)
When funds are tendered to ·the registry of the court, the district or county clerk must
deposit the funds in a special account of the depository bank called the "registry fund." TEX, Loe.
Gov'T CODE §§ U 7.001(3), (5), .052. The commissioners court selects and designates the
depository bank for the registry fund. Id.§§ 117.023, .025. The account must be held in the name
of the county or district clerk. Id.§ 117.021(a), .052(b). The district or county court clerk has the
responsibility to deposit court registry funds paid from the following sources:
(1) funds of minors or incapacitated persons;
(2) funds tendered in an interpleader action;
(3) funds paid in satisfaction of a judgment;
(4) child support funds held for more than three days;
(5) cash bonds;
(6) cash bail bonds;
(7) funds in an eminent domain proceeding; and
(8) any other funds tendered to the clerk for deposit into the registry
of the court.
Id. § 117.052(c). The county or district clerk must keep registry funds secure until the clerk
deposits them in the court registry depository. Id.§ 117.081(b). Once the registry funds have been
deposited, the county or district clerk acts in a custodial capacity only. Id. § 117.0521. Except as
a statute may otherwise provide, the clerk may make payments out of the account only pursuant to
court order. Id.§ 117.053(b); see also Tex. Att'y Gen. Op. No. JM-1162 1990) at 3 (stating that
"the first duty of the clerk is to follow the instructions of the court that directed him to hold the
funds"). While chapter 117 of the Local Government Code assigns these duties to the county or
district clerk, it assigns no duties or powers to the county treasurer. Therefore, the treasurer does
not possess administrative authority over a court registry account.
You next ask whether the county commissioners court has "authority over a court's
registry account, apart from selection of the depository." Request Letter at 1. A commissioners
court has only those powers expressly conferred by the constitution or statute or necessarily
implied therefrom. City ofSan Antonio v. City ofBoerne, 111 S.W.3d 22, 28 (Tex: 2003). Chapter
11 7 authorizes the commissioners court to select, designate, and contract with the depository bank
for the special account for court registry funds. TEX. Loe. Gov'T CODE§§ 117.021(a)-(b), .023,
.025. Also, the commissioners court may require a depository to execute a new bond "for the
protection of the county clerk's and the district clerk's registry funds." Id. § 117.057(a). Chapter
117 does not assign the commissioners court any other duties or powers with respect to the court
registry depository. Accordingly, a commissioners court does not possess authority over a court's
registry account except as necessary to fulfill these express statutory duties under chapter 11 7.
The Honorable Gene Stump - Page 3 (KP-0174)
Finally, you ask whether the county may use the county's employer identification number
for a court registry account, or whether the court registry account must obtain its own number.
Request Letter at 1. An employer identification number, also known as a Federal Tax
Identification Number or Taxpayer Identification Number, is a numberI
provided by the Internal
Revenue Service ("IRS") for administering tax laws and certain other purposes. See 26 C.F .R.
§ 301.6109-1. No Texas statute regulates the use of tax identification numbers for depository
accounts. Because the use of a tax identification number for particular purposes is ultimately an
issue for the IRS, your question is more appropriately directed to that agency rather than this office.
See, e.g., Tex. Att'y Gen. Op. Nos. GA-0130 (2003) at 4 (declining to answer a city's question
about compliance with Internal Revenue Code), JC-0482 (2002) at 7 (suggesting that the requestor
direct a question about tax deductibility to the IRS); JM-1263 (1990) at 2 (not resolving whether
the tax assessor-collector was entitled to obtain a separate employer identification number because
"[t]hat is a matter within the jurisdiction of the Internal Revenue Service"). 4
4
1RS assistance with local government issues can be accessed at https://www.irs.gov/government-
entities/federal-state-local-govemments/fslg-customer-syrvices (last visited Oct. 24, 2017).
The Honorable Gene Stump - Page 4 (KP-0174)
SUMMARY
A county treasurer does not have administrative authority
over a court's registry account. A county commissioners court has
only the authority necessary to perform its duties to select,
designate, and contract with a depository bank for court registry
accounts and to require adequate security for the accounts.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
WILLIAM A. HILL
Assistant Attorney General, Opinion Committee