Untitled Texas Attorney General Opinion ( 1972 )

Honorable Ted Butler Opinion No. M- 1169
Criminal District Attorney
Bexar County Courthouse Re: Whether a cashier in
San Antonio, Texas 78204 the accounting depart-
ment of the Texas
University Medical
School at San Antonio
may be deemed a clerk
or other employee of
"an officer of the
government" and subject
to Article 86, V.P.C.,
concerning "Protection
of Public Money," and
Dear Mr. Butler: related question?
In your recent request you asked for an opinion from
this office on the following questions relating to the Texas
University Medical School at San Antonio:
Question No. 1
Are the duly appointed Board of Regent members
officials of the State government?
Question No. 2
Are the nonelected officers, such as a dean,
officials of the State government?
Question No. 3
Is a cashier in the accounting department or
a clerk or other employee "an officer of the
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. .
Hon. Ted Butler, page 2, (M-1189)
government' so as to come under Article 86, Texas
Penal Code, Protection of Public Money?
Guestion No. 4
If so, are the monies collected by such a
cashier for parking fees and registration fees
considered public money under the same statute?
The term "public office" has been defined as '. . .
the right, authority, and duty created and conferred by law,
by which, for a given period, either fixed by law, or enduring
at the pleasure of the creating power, an individual is in-
vested with some portion of the sovereign functions of the
government, to be exercised by him for the benefit of the
public. . . .II Kimbrough v. Barnett, 93 Tex. 301, 55 S.W. 120,
122 (1900). Accord: Aldine Indep. Sch. Dist. v. Standley,
154 Tex. 547, 280 S.W.2d 578 (1955); Knox, et al. v. Johnson,
141 S.W.2d 698 (Tex.Civ.App. 1940, error ref.): Northwestern
Natl. Life Ins. Co. v. Black, 383 S.W.2d 806 (Tex.Civ.App.
1964, error ref. n.r.e.).
In Splawn v. Woodard, 207 S.W. 677 (Tex.Civ.App.
1926, no writ) at page 681 it was held that ". . . The regents
LGf the University of Texas are clearly officers of the state,
charged with the duty of management and control of the Univer-
sity and its property. . . -II (Brackets added.) See, Tex.
Educ. Code, Sec. 65.31(a), 74.151 and 65.32. This holding was
more recently supported by Rainey v. Malone, 141 S.W.2d 713
(Tex.Civ.App. 1940, no writ).
A dean of a medical school is not a public officer
or an official of the State government. He does not exercise
the sovereign functions of the government, independent of the
control of others, for the benefit of the public. Aldine
Indep. Sch. Dist. v. Standley, supra. the may be a contract
employee or an agent of the Board of Regents, but this does
not make him an official of the State government.
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Hon. Ted Butler, page 3. (M-l 189)
Question No. 3 concerns Article 86 of Vernon's Penal
Code which reads:
"If any officer of the government who is
by law a receiver or depositary of public money,
or any clerk or other person employed about the
office of such officer, shall fraudulently take,
misapply or convert to his own use, any part of
such public money, or secrete the same with in-
tent to take, misapply or convert it to his own
use, or shall pay or deliver the same to any
person knowing that he is not entitled to re-
ceive it, he shall be confined in the peniten-
tiary not less than two nor more than ten
years." (Emphasis added.)
While penal statutes are generally strictly construed
against the state or prosecution, every law on the subject of
the crime is not to be construed so strictly as to defeat the
legislative intention. 53 Tex.Jur.2d 305, Statutes, Sec. 198,
and cases cited. Article 86 was enacted pursuant to Article 4,
Section 25, Texas Constitution, which mandated the Legislature
to '1. . . pass efficient laws facilitating the investigation
of breaches of trust and duty by ,a11 custodians of public funds
. . .II It is apparent that the statutory intent was to pro-
tect the state from custodians of public monies who worked in
or about the office of any officer of the government. Such an
officer's duties must either authorize or require him to re-
ceive money in his official capacity. Dupuy v. State, 132
Tex. Crim. 539, 106 S.W.2d 287 (1937).
Whether the cashier in the accounting department of
the University of Texas Medical School at San Antonio may be
considered a "clerk or other person" employed in or about an
office of an ~officer of the government, that is, of the Board
of Regents of the University ~of Texas in this case, presents
a mixed question of fact and of law. While it is shown that
the cashier was authorized "to assist in the receipt and custody
of cash and fee payments to the institution," insufficient facts
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Hon. Ted Butler, page 4, (~-1189)
are presented to establish as a matter of law that the clerk
was actually employed in or about the Board of Regents' office.
The Board of Regents may well have several offices, provided
they are so intended and used as such an "office" about which
the particular cashier or person handled the public money as
a custodian for the Board of Regents. Under a theft or
burglary statute forbidding the entering of any "office"
with intent to commit larceny or any felony, it has been
held that a stationary trailer on wheels, which were embedded
in the ground, and which trailer was used as an office, con-
stituted an "office" within the penal statute. See State v.
Parsons, 70 Aris. 399, 222 P.2d 637, 639-640, (1950), holding
that such type of office
II
. . . does not deprive it of protection
under the burglary statute. Webster's Inter-
national Dictionary (2d ed.) defines an 'office'
to be the place where a particular kind of
business or service for others is transacted.
. . . See also Anderson v. State, 17 White & W.
305, 310, and Houston v. Kirschwing, 117 Colo.
92, 184 P.2d 487."
We construe the statute to be comprehensive enough
to include "office of such officer"to mean all offices under
an officer's control, provided the place involved was so in-
tended, designated, and actually used in fact as an office.
Since we have no authority to determine fact questions, we
are unable to conclude in this opinion as a matter of law
that the particular cashier in this instance, under all of
the facts and circumstances, was a person employed in or
about an office of the Board of Regents. This is a question
for the trier of facts.
From the facts presented, the money received by the
cashier in question is public money, regardless of where or
in what type of an account it is deposited. The money is
constructively held in that account for the State treasury.
In Boyette v. Calvert 467/2/205 C.A. 1971, err. ref., n.r.e.
@p. 209, it was held that the term "Treasury" refers "not just
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Hon. Ted Butler, page 5, (M-1189)
to funds in a particular vault belonging to the Treasurer, but
more generally to funds on deposit in the various banks to the
credit of the Treasurer." Thus the monies collected by the
cashier would be "public monies."
SUMMARY
-------
The duly appointed members of the Board of
Regents of the Texas Medical School at San Antonio
are officers of the government, but the dean of
that school is not an officer of the government.
A cashier in the accounting department of the
school may or may not be a clerk or other employee
of "an officer of the government" so as to become
subject to Article 86 of the Texas Penal Code,
that issue being a mixed question of fact and
law. However, the monies collected by such cash-
ier are public monies.
ruly yours,
/
Prepared by Linda Neeley
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor,:Chairman
W. E. Allen, Co-Chairman
John Reeves
Sig Aronson
John Traylor
Bill Flanary
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Hon. Ted Butler, page 6, (M-1189)
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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