Untitled Texas Attorney General Opinion ( 1978 )

The Attorney General of Texas
March 31, 1978
JOHN L. HILL
Attorney General
Honorable Mike Westergren Opinion No. H- 114 8
Nueces County Attorney
Nueces County Courthouse Re: Duty of County Treasurer with
Corpus Christi, Texas 78401 respect to a special Tlash money” fund
for law enforcement purposes.
Dear Mr., Westergren:
You have requested our opinion regarding the duty of the county
treasurer with respect to a special “flash money”,fund for law enforcement
purposes.
On November 15, 1977, the commissioners court of Nueces County
authorized the establishment of a special account in the’amount of $50,000
for use by the sheriff as “flash money” in the enforcement of the narcotics
laws, and directed the issuance of a check in that amount to activate the
account. The county treasurer, exercising his discretion under article 1713,
V.T.C.S., declined to countersign the check. Gn November 22, the commis-
sioners court directed the treasurer “to countersign or affix his signature to”
the check. The following day, as the result of a mandamus action brought~
against the treasurer, a district court ordered him to approve the check. The
propriety of the district court’s order is not in issue, and the questions raised
in that proceeding, including those relating to the validity of the establish-
ment of the fund, cannot be presented to the Attorney General. See Gussett
v. Nueces County, 235 S.W. 957, 860 (Tex. Comm’n A p. 1921, jdgm%dx
Attorney General Opinion H-171 (1973); O-1647 P1940). The treasurer
subsequently complied with the order. You ask whether the treasurer has any
further duty or liability with regard to the special fund.
Article 1709, V.T.C.S., describes the duties of the county treasurer:
The County Treasurer, as chief custodian of county
finance, shall receive all moneys belonging to the
county from whatever source they may be derived;
keep and account for the same in a designated
depository or depositories; and pay and apply or
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Honorable Mike Westergren - Page 2 (I+11481
disburse the same, in such manner as the Commissioners
Court may require or direct, not inconsistent with consti-
tuted law. Said court may provide funds for adequate
personnel and proper media that would enable the treasurer
to perform such constituted duties. Upon failure to perform
such duties the treasurer shall be guilty of dereliction of
duty and subject tomprosecution.
Article 1714, V.T.C.S., further requires the treasurer to
examine the accounts, dockets and records of the clerks,
sheriff, justices of the peace, constables and tax collector of
his county, for the purpose of ascertaining whether any
moneys of right belonging to his county are in their hands
which have not been accounted for and paid over according
to law, and shall report the same to the commissioners court
at their next term, to the end that suit may be instituted for
the recovery thereof.
It would appear that, except for the examination and reporting duties required by
article 1714, the treasurer’s duties with respect to any particular check are
complete as soon as he has affixed his signature thereto.
As to the treasurer’s liability for the fund, article 17098, section 3(b),
V.T.C.S., provides that nothing therein
shall release any County Treasurer for any loss resulting
from any official misconduct or negligence on his part. . . .
In McDonald v. Farmer, 56 S.W. 555 (Tex. Civ. App. 1900, no writ), however, the
court held that, where the treasurer has paid a warrant in the discharge of his duty,
he ought not to be held liable to the fund out of which it has been paid. & at 557.
.&I our opinion whatever doubts may have existed about the treasurer’s duty were
dispelled by the district court’s order of November 23, 1977.
SUMMARY
Except for the examination and reporting duties required by
article 1714, V.T.C.S., a county treasurer’s duties with
respect to any particular check he signs in his official
capacity are complete as soon as he has affixed his signature
thereto. Where a county treasurer has affixed his signature
to a check upon a valid order of a district court, he will not
be liable for doing so.
p. 4662
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Honorable Mike Westergren - Page 3 (H-1148)
Attorney General of Texas
APPROVED:
C. ROBERT HEATH, Chairman
Opinion Committee
p. 4663.