Can a Texas justice of the peace make employees pay for cash shortages?

Plain-English summary

Harris County's risk managers had floated an office policy for a justice of the peace: employees who handle money would agree to be on the hook for any cash shortages, with the shortfall recovered through something like a payroll deduction. The Harris County Attorney asked whether a justice of the peace could contract with employees to take on that liability, and if so, how the agreement could be enforced.

The Attorney General started with the bedrock rule. Under article XVI, section 61 of the Texas Constitution and the bond a justice of the peace must give under section 27.001 of the Government Code, a public officer who collects public money is strictly liable for it. The office cited the old cases Coe v. Force (1899) and Poole v. Burnet County (a 1903 Texas Supreme Court decision) for the point that a public officer must account for and pay over the money he collects, even when funds go missing through no fault of his own. A separate statute, section 112.052 of the Local Government Code, charges a justice with the fines and judgments he is supposed to collect, with only narrow ways to discharge that debt. So the justice's own liability to the county is something he cannot bargain away. He may not delegate it to employees, and he may not contract it onto them.

That said, the office drew a clean distinction between the justice's liability to the county and an employee's liability to the justice. Employees are answerable to the justice under ordinary common law for losses they cause through their own negligence. So if the justice has to repay the county for a shortage an employee caused, he can pursue the employee for damages. Building on that, the office concluded the justice may require employees, as a condition of employment, to sign a written acknowledgment that they accept liability for shortages caused by their own negligence or misconduct.

On enforcement, the answer was narrower. Because the employee would owe the justice personally rather than owe the county, section 154.025 of the Local Government Code (which blocks issuing a pay warrant to someone who is indebted to the state, county, or salary fund) did not apply. And the office had long held that a county cannot make payroll deductions from an employee's salary without express statutory authority; chapter 155 of the Local Government Code lists the allowed county payroll deductions, and recovering an employee's debt to the justice is not among them. So while the justice could require the written acknowledgment of liability, he had no authority to collect on it by withholding a paycheck or deducting from one.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Local Government Code and Government Code provisions the opinion relied on (including the county payroll-deduction provisions in chapter 155 and the salary-warrant rule in section 154.025) have been amended over the years. Read this page for how the office analyzed the question as the law stood in 1995, and check the current code before relying on any specific liability rule or collection method.

What the opinion meant for those who asked

For justices of the peace: The opinion told the justice he stayed strictly liable to the county for money he collected and could not push that liability onto staff, but that he could require employees to sign a written acceptance of liability for shortages caused by their own negligence or misconduct.

For the employees who handle money: The opinion treated them as liable to the justice under common law for losses they caused by their own negligence, and said a justice could make accepting that liability a condition of employment, but it found no authority to collect the debt by withholding or deducting from their pay.

For the Harris County Attorney and county risk managers: The opinion confirmed the proposed acknowledgment-of-liability policy was permissible in principle, but rejected the payroll-deduction enforcement mechanism the risk department had suggested.

Common questions

Could a Texas justice of the peace make employees responsible for cash shortages?
Only for shortages the employee actually caused. The justice could require an employee, as a condition of employment, to sign a written acknowledgment accepting liability for shortages caused by the employee's own negligence or misconduct. The justice could not shift his own across-the-board liability to the county onto staff.

Why couldn't the justice just transfer all his liability to employees?
Because a public officer who collects public funds is strictly liable for them and cannot bargain that statutory and common-law duty away. The opinion read the constitution, the bond statute, and the case law to make the justice personally answerable to the county no matter what an office policy said.

Could the justice take the shortage out of the employee's paycheck?
No. The opinion found no statute authorizing it. The salary-warrant bar in section 154.025 applied only to debts owed to the county (not to the justice personally), and chapter 155's list of allowed county payroll deductions did not cover an employee's debt to the justice.

Was the employee off the hook entirely?
No. The employee remained liable to the justice under common law for losses caused by the employee's own negligence, and the justice could sue for damages. The limit was only on the self-help collection methods (withholding or deducting pay).

Background and statutory framework

The analysis rested on the strict liability of officers who handle public money. Article XVI, section 61 of the Texas Constitution requires fees earned by district, county, and precinct officers to be paid into the county treasury, and section 27.001 of the Government Code requires a justice of the peace to post a bond promising to pay over all money that comes into his hands. Texas courts have long held such officers strictly accountable: Coe v. Force, 50 S.W. 616 (Tex. Civ. App. 1899, writ ref'd), and Poole v. Burnet County, 76 S.W. 425 (Tex. 1903). Section 112.052 of the Local Government Code separately charges a justice with fines and judgments he should collect and allows him to discharge that indebtedness only by paying the treasurer, by showing due diligence to collect, or by showing the debt was satisfied by imprisonment or labor. Section 154.009 lets a commissioners court deduct uncollected fees a justice neglected to collect from the justice's own salary, a remedy the courts have applied (Eguia v. Tompkins, 756 F.2d 1130 (5th Cir. 1985)).

Against that backdrop, the office held the justice could not delegate or contract away his liability to the county, citing cases on the nondelegability of an officer's duties. But the employee's separate common-law liability to the justice for the employee's own negligence (Yarborough v. Fulton; Commercial State Bank v. Van Hutton) let the justice require a written acknowledgment of that liability as a condition of employment. The enforcement question turned on two limits: section 154.025 bars pay warrants only to those indebted to the state, county, or salary fund (Orange County v. Ware, 819 S.W.2d 472 (Tex. 1991)), which a debt owed to the justice personally is not; and county payroll deductions require express statutory authority, which chapter 155 of the Local Government Code did not supply for this kind of debt.

Citations

Statutory and constitutional provisions discussed:

• Tex. Const. art. XVI, § 61 (fees of district, county, and precinct officers paid into county treasury)
• Tex. Gov't Code § 27.001 (justice of the peace bond); § 27.056 (designating clerks); § 403.055 (warrant to person indebted to the state; former V.T.C.S. art. 4350)
• Tex. Local Gov't Code § 112.052 (justice charged with fines and judgments); § 154.009 (deducting uncollected fees from a justice's salary); § 154.025 (salary-warrant bar for those indebted to state/county/salary fund); § 157.903 (commissioners court indemnity of county officers); § 151.901 (employing precinct staff); ch. 155 (allowed county payroll deductions)
• Tex. Educ. Code § 2.07 (voluntary salary deductions for teachers and school employees)

Cases discussed:

• Coe v. Force, 50 S.W. 616 (Tex. Civ. App. 1899, writ ref'd)
• Poole v. Burnet County, 76 S.W. 425 (Tex. 1903)
• Eguia v. Tompkins, 756 F.2d 1130 (5th Cir. 1985)
• Harris County v. Schoenbacher, 594 S.W.2d 106 (Tex. Civ. App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.)
• Newsom v. Adams, 451 S.W.2d 948 (Tex. Civ. App.-Beaumont 1970, no writ)
• Moody v. Texas Water Comm'n, 373 S.W.2d 793 (Tex. Civ. App.-Austin 1963, writ ref'd n.r.e.)
• Wagner v. Urban, 170 S.W.2d 270 (Tex. Civ. App.-Amarillo 1943, no writ)
• Yarborough v. Fulton, 78 S.W.2d 247 (Tex. Civ. App.-El Paso 1935, writ dism'd)
• Commercial State Bank v. Van Hutton, 208 S.W. 363 (Tex. Civ. App.-San Antonio 1919, no writ)
• Orange County v. Ware, 819 S.W.2d 472 (Tex. 1991)

Other authority:

• Attorney General Opinions JM-517 (1986), JM-1055 (1989), JM-398 (1985), H-360 (1974), H-386 (1974), JM-856 (1988), JM-521 (1986), M-1197 (1972), WW-1504 (1962), JM-255 (1984), MW-416 (1981), JM-38 (1983), JM-53 (1983); Letter Advisory No. 57 (1973)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0324
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1995/dm0324.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

February 21, 1995

Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77002-1891

Opinion No. DM-324

Re: Whether a justice of the peace may contract with his or her employees to assume liability for shortages, and related questions (RQ-489)

Dear Mr. Driscoll:

You inform us that the Risk Management Department of Harris County has recommended that a particular justice of the peace adopt an office policy providing that employees who handle money will assume liability for any shortages. It is suggested that the judge's employees sign an authorization consenting to the policy and that they be held accountable for shortages through some means such as payroll deductions. In connection with this proposal, you ask the following questions:

May a justice of the peace contract with his or her employees to assume liability for shortages?

If so, by what means can he enforce such agreement?

Article XVI, section 61 of the Texas Constitution provides that "[all] fees earned by district, county and precinct officers shall be paid into the county treasury." A public officer who collects public funds "is bound to account for and pay over the money he collects." Coe v. Force, 50 S.W. 616, 618 (Tex. Civ. App. 1899, writ ref'd) (holding county treasurer liable for county funds stolen through no fault of the treasurer's). The duties of a public officer entrusted with public funds "are prescribed . . . by the law and by the terms of his bond." Poole v. Burnet County, 76 S.W. 425, 427 (Tex. 1903). Pursuant to section 27.001 of the Government Code, a justice of the peace must give bond conditioned that he will "promptly pay to the entitled party all money that comes into the justice's hands during the term of office." Thus, a justice of the peace, like other public officers, is strictly liable for the money that is actually collected by him. Id. at 427; Coe, 50 S.W. at 618; Attorney General Opinion JM-517 (1986); see Attorney General Opinions JM-1055 (1989) (discussing statute that may relieve county tax assessor-collector of liability for loss of public funds); JM-398 (1985) (finding county liable for reimbursing county jail inmates for money stolen by escaping prisoner); H-360 (1974) (finding district clerk liable for trust funds that "mysteriously disappeared" from clerk's possession). But see Local Gov't Code § 157.903 (authorizing commissioners court to indemnify a county officer against personal liability for loss of county funds if loss did not result from officer's negligence or criminal action).

Section 112.052 of the Local Government Code makes the justice of the peace liable for funds that he was required to collect:

(a) A fine imposed or a judgment rendered by a justice of the peace shall be charged against that justice.

(b) The justice may discharge the indebtedness by:

(1) filing with the county clerk the county treasurer's receipt for the amount of the indebtedness;

(2) showing to the satisfaction of the commissioners court that the justice has used due diligence to collect the amount without avail; or

(3) showing to the satisfaction of the commissioners court that the indebtedness has been satisfied by imprisonment or labor.

Thus, the justice of the peace must pay to the county treasurer the money deriving from fines imposed and judgments rendered, unless he can discharge this indebtedness by making the showing required by subsection (b)(2) or (3) of section 112.052. The commissioners court may deduct an uncollected fee or commission from the justice of the peace's salary if it finds that he has failed through neglect to collect a fee or commission that he is required by law to collect. Local Gov't Code § 154.009; see Eguia v. Tompkins, 756 F.2d 1130 (5th Cir. 1985) (upholding collection of fees from justice of the peace under section 154.009 of Local Government Code); Harris County v. Schoenbacher, 594 S.W.2d 106 (Tex. Civ. App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.) (holding that chief juvenile probation officer was employee and therefore was not liable under predecessor of Local Government Code section 154.009 for failure to pay fees into county treasury).

The justice of the peace may not free himself from his common law and statutory liability for collecting funds and paying them to the county treasurer by attempting to delegate such liability to his employees. See Newsom v. Adams, 451 S.W.2d 948 (Tex. Civ. App.-Beaumont 1970, no writ); Moody v. Texas Water Comm'n, 373 S.W.2d 793 (Tex. Civ. App.-Austin 1963, writ ref'd n.r.e.); Wagner v. Urban, 170 S.W.2d 270 (Tex. Civ. App.-Amarillo 1943, no writ); Attorney General Opinion H-386 (1974). Nor may he contract with his employees to transfer his liability to them. Attorney General Opinion JM-856 (1988) (stating that sheriff was responsible for shortage in funds attributable to a deputy).

Although the justice of the peace remains strictly liable to the county treasury for the money he collects, his employees are liable to him under common law for damages they cause him by their own negligence. See Yarborough v. Fulton, 78 S.W.2d 247 (Tex. Civ. App.-El Paso 1935, writ dism'd); Commercial State Bank v. Van Hutton, 208 S.W. 363 (Tex. Civ. App.-San Antonio 1919, no writ). If the justice of the peace must reimburse the county for shortages of public funds caused by an employee's negligence or misconduct, he may seek damages from the employee. In our opinion, the justice of the peace may require employees to provide, as a condition of employment, a written acknowledgment and acceptance of liability for shortages in collections that are caused by the employee's negligence or misconduct. See Gov't Code § 27.056 (authorizing justice of peace to designate one or more persons to serve as clerk); Local Gov't Code § 151.901 (authorizing commissioners court to enter order to employ secretarial personnel for precinct officer); see also Attorney General Opinions JM-521 (1986) (holding that commissioners court has authority to set conditions of work for persons it employs but not for employees of other elected county officers); M-1197 (1972) (commissioners court does not have authority to set office hours for employees of justice of the peace).

You also ask how the justice of the peace may enforce this agreement against an employee who is responsible for a shortage. In particular, you inquire whether the justice of the peace may withhold the employee's paycheck, or deduct the money from his paycheck.

Since an employee would be liable for his shortages to the justice of the peace individually, and not to the county, there would be no basis for invoking section 154.025 of the Local Government Code, which prohibits drawing a warrant on a salary fund in favor of a person "who is indebted to the state, the county, or the salary fund." See Orange County v. Ware, 819 S.W.2d 472 (Tex. 1991) (withholding of county commissioner's salary for debts created by bail bond forfeiture judgments did not constitute garnishment of current wages); Attorney General Opinion WW-1504 (1962) (holding that predecessor of Local Government Code section 154.025 did not permit withholding of deputy sheriff's salary based on charges that deputy misappropriated funds and on deputy's partial restitution, in absence of judicial decision). See also Attorney General Opinions JM-255 (1984); MW-416 (1981); Letter Advisory No. 57 (1973) (construing former article 4350, V.T.C.S., now section 403.055 of Government Code, prohibiting issuance of warrant to person indebted to state).

This office has held that the county could not authorize payroll deductions from a county employee's salary without express statutory authority. Attorney General Opinion JM-38 (1983). Chapter 155 of the Local Government Code, which authorizes deductions from county employees' compensation for various specific purposes, does not include a provision authorizing payroll deductions for debts owed by county employees. See generally Educ. Code § 2.07 (authorizing voluntary salary deductions from salaries of teachers and school employees as security for indebtedness); Attorney General Opinion JM-53 (1983) (construing section 2.07 of Education Code). Accordingly, there is no authority for the justice of the peace to enforce payment of an employee's debt to him through a deduction from the employee's salary.

SUMMARY

A justice of the peace is strictly liable for paying to the county treasury fees and other funds actually collected by him, subject to statutory remedies. A justice of the peace may not free himself of his liability for collecting funds and paying them to the county treasury by attempting to transfer this liability to his employees, by agreement or delegation. However, if a justice of the peace must reimburse the county for shortages of public funds caused by an employee's negligence or misconduct, the employee is liable to the justice of the peace for the loss. The justice of the peace may require the employee to provide, as a condition of employment, a written acknowledgment and acceptance of liability for shortages in collections that are caused by the employee's own negligence or misconduct. Section 154.025 of the Local Government Code does not authorize enforcement of this agreement by withholding the employee's salary warrant, nor do we find any provision for enforcing it by payroll deduction.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General