Can a Texas county make the county attorney put the hot-check fund in the county budget?

Plain-English summary

When a Texas county attorney's office goes after bad checks, it can charge a fee, and that money piles up in a special "hot-check fund" (formally the county attorney's fee fund) that the county attorney controls. The Midland County Auditor asked the Attorney General whether the county could make the county attorney project the fund's revenues and expenses ahead of time and fold them into the county budget. The auditor's predecessor thought yes, reasoning that fund spending is still "expenditures of the county government." The county attorney thought no, pointing to the statute that created the fund and earlier AG opinions saying the fund is his alone to manage.

The office sided with the county attorney. The fee fund is created by article 102.007 of the Code of Criminal Procedure, which says fund expenditures are at the sole discretion of the attorney, may be used only for the salaries and expenses of the prosecutor's office, and may never go to the attorney's own salary. A string of earlier opinions had already established that the county attorney has exclusive control over the fund and does not need the commissioners court's approval to spend from it. Drawing especially on a 1982 opinion (MW-439), the office reasoned that the commissioners court is "without any right to administer the fund or to be involved in making expenditures from it," so the budgeting statute (Local Government Code section 111.003), which tells the county judge to budget "all proposed expenditures of the county government," simply does not reach this fund.

The office walked through why forcing the fund into the budget would be a problem. The budget gets filed with the county clerk and aired at a public hearing, so even if the commissioners court legally could not change the county attorney's fund numbers, public comment could pressure the commissioners, and the court's silence might look like approval or disapproval of spending it has no say over. Worse, budgeting the fund would imply (under section 111.010(b)) that the county attorney could spend from it only "in strict compliance with the budget," which would quietly undercut the sole-discretion rule the statute guarantees. The office also compared article 102.007 with article 59.06, the asset-forfeiture fund statute, which expressly requires the attorney to submit a budget to the commissioners court. The legislature knew how to require a budget when it wanted one; it did not do so for the hot-check fund, and the office would not add the requirement itself.

On the auditor's fallback argument, the office held that Local Government Code section 114.002(2)(A), which lets the auditor set how a county official reports "office fees collected and disbursed," is backward-looking. It covers fees already received and spent, not projections of future amounts, so it could not be stretched to require a forward budget either. None of this, the office stressed, let the county attorney off the accountability hook: the auditor still oversees the fund's books, must examine the accounts at least annually, can prescribe accounting and control procedures, and the county attorney must file the required after-the-fact reports on money received and spent.

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 budgeting and audit provisions and Code of Criminal Procedure articles 102.007 and 59.06 cited here have been amended and renumbered over the years, and county-population thresholds in the budgeting statutes have changed. Read this page for the office's 1995 reasoning about the relationship between the hot-check fund and the county budget, and verify the current statutes before relying on any specific section or rule.

What the opinion meant at the time

For county attorneys: The opinion confirmed the county attorney's sole control over the hot-check fee fund. The county could not require advance budgeting of the fund, and could not use the budget process as an indirect lever over how the fund is spent.

For county auditors and county judges (including the requestor): The opinion told them they could not compel the county attorney to submit projected fund revenues and expenditures for the budget, whether under the budgeting statute (section 111.003) or the auditor's fee-reporting power (section 114.002). Their oversight role was after-the-fact: examining the books and the required reports.

For commissioners courts: The opinion kept the fund out of the court's reach, including the indirect reach that budgeting would create, and reiterated that the court may not cut the county attorney's office appropriations to offset fund spending.

Common questions

Can a Texas county make the county attorney budget the hot-check fund?
No. Under this 1995 opinion, the county attorney's fee fund is wholly outside the county budgeting process, so neither the county judge nor the auditor could require the county attorney to submit a budget for it.

Who controls the hot-check fund?
The county attorney. Article 102.007 of the Code of Criminal Procedure puts fund expenditures at the sole discretion of the attorney, limited to the prosecutor's office salaries and expenses, and never the attorney's own salary.

Can the auditor make the county attorney report future fund estimates?
No. Section 114.002(2)(A) lets the auditor set how officials report fees "collected and disbursed," which the office read as past activity, not future projections.

Does this mean the fund has no oversight?
No. The county attorney stays accountable. The auditor oversees the fund's books, examines the accounts at least annually, can set accounting and control procedures, and the county attorney must file the required reports on money received and spent.

Why does the asset-forfeiture fund get budgeted but not the hot-check fund?
Because the forfeiture statute (article 59.06(d)) expressly requires the attorney to submit a budget to the commissioners court, while article 102.007 contains no such requirement. The office would not read one into it.

Background and statutory framework

In a county with a population under 225,000, such as Midland County, the county judge prepares the budget to cover "all proposed expenditures of the county government for the succeeding fiscal year" (Local Government Code section 111.003), with the county auditor assisting; the budget lists estimated revenues available to cover it (section 111.004(b)(5)). The county judge may require any county officer to furnish information needed to prepare the budget (section 111.005). After the judge files the proposed budget with the county clerk (section 111.006), the commissioners court holds a public hearing (section 111.007(a)), may adopt it with or without amendments (section 111.008), and afterward may spend county funds only in strict compliance with the budget except in an emergency (section 111.010(b)).

The county attorney's fee fund comes from article 102.007 of the Code of Criminal Procedure, under which the county attorney collects a fee for collecting and processing dishonored or forged checks. Subarticle (f) deposits those fees in a special fund administered by the county attorney, spendable at the attorney's sole discretion for the prosecutor's office's salaries and expenses, but never to supplement the attorney's own salary. The office had repeatedly recognized the county attorney's exclusive control over the fund (Attorney General Opinions JM-1034 (1989), JM-738 (1987)), the absence of any need for commissioners court approval to spend from it (JM-313 (1985); JM-632 (1987)), and the limits on permissible uses (JM-313 (1985)). It treated MW-439 (1982) as especially on point: that opinion held the county competitive-bidding statutes (former V.T.C.S. articles 1659a-4 and 2368a, which applied only to purchases by the commissioners court) did not reach fund purchases, because the commissioners court had no right to administer the fund, and applying them would let the court indirectly control the fund against the legislature's intent. JM-313 (1985) had similarly held the county attorney could raise staff salaries from the fund without commissioners court approval, and the court could not then cut those salaries to offset the increases.

From these premises the office concluded that requiring a fund budget would give the commissioners court an indirect means of controlling the fund or interfering with the county attorney's exclusive discretion, and that section 111.003 does not reach the fund. It bolstered the conclusion by comparing article 59.06(d), the contraband-forfeiture fund statute, which expressly requires the attorney to submit a budget to the commissioners court (a budget the court may not evaluate, per DM-246 (1993)); the absence of any parallel requirement in article 102.007 showed the legislature did not intend one. The office added that section 114.002(2)(A)'s reporting power reaches only fees already collected and disbursed, not future projections, while emphasizing the county attorney's continuing accountability through the auditor's oversight of the books (section 112.006(a)), the auditor's at-least-annual examination of the accounts (section 115.0035(b)), and the required after-the-fact reports (sections 114.041, .042, .045). It cited additional opinions on accountability and on the auditor's authority to prescribe accounting and control procedures (JM-967 (1988), JM-632 (1987), MW-584 (1982), MW-188 (1980)).

Citations

Statutory provisions discussed:

• Local Government Code §§ 111.003, 111.004, 111.005, 111.006, 111.007, 111.008, 111.010, 111.011, 111.012 (county budgeting process)
• Local Government Code § 114.002 (auditor's power to set the manner of reporting fees collected and disbursed); §§ 114.041, .042, .045 (officer reports)
• Local Government Code § 112.006 (auditor oversight of books and records); § 115.0035 (annual examination of accounts)
• Code of Criminal Procedure art. 102.007 (county attorney's fee fund from dishonored/forged check fees)
• Code of Criminal Procedure art. 59.06 (contraband-forfeiture fund; subsection (d) budget-submission requirement)

No cases were cited in this opinion. The office relied on prior Attorney General opinions, chiefly MW-439 (1982) and JM-313 (1985), and on JM-1034 (1989), JM-738 (1987), JM-632 (1987), JM-967 (1988), MW-584 (1982), MW-188 (1980), and DM-246 (1993), along with secondary authorities (Brooks, County and Special District Law; Antieau, Local Government Law; Corpus Juris Secundum).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0357
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1995/dm0357.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain (including footnote numbering) — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

June 30, 1995

Ms. Carole Wayland
Midland County Auditor
200 West Wall
Midland, Texas 79701

Opinion No. DM-357

Re: Whether a county auditor may require the county attorney to prepare and submit, for inclusion in the county budget, a projection of revenues and expenditures for the county attorney hot-check fund for the following fiscal year and related questions (RQ-791)

Dear Ms. Wayland:

Your predecessor in office asked whether the county attorney may be required to prepare and submit, for inclusion in the county budget, a projection of revenues and expenditures for the county attorney hot-check fund (the "county attorney's fee fund" or "fund") for the upcoming fiscal year. In a letter to this office your predecessor summarized his belief that section 111.003 of the Local Government Code authorized Midland County to include the county attorney's fee fund in the county's budget:

[W]hile the expenditures from this fund shall be at the sole discretion of the County Attorney, those expenditures are nevertheless part of the "[ . . . ] expenditures of the county government" [for purposes of Local Government Code section 111.003]. It is clear that Midland County Commissioners Court may not consider the Fund's estimated expenditures for the purpose of modifying expenditure budgets for the general fund. Therefore, I have concluded that the County Attorney should provide the estimates of revenues and expenditures for the succeeding fiscal year for budgeting the Fund, and the Budget Officer and Court must accept such estimates when assembling the County's overall budget.

In the alternative, your predecessor questioned whether section 114.002 of the Local Government Code authorizes the county auditor to require the county attorney to report his or her projection of revenues and expenditures of the fund for the succeeding year, and whether the official county budget may include the county attorney's estimates.

The Midland County Attorney disagrees with your predecessor's position. You have submitted copies of letters he wrote to your predecessor, in which he claims that section 102.007 of the Code of Criminal Procedure, together with prior opinions of this office, take the fund out of the county's budgeting process. As he said in his April 29, 1994 letter to your predecessor, "[T]his fund is not subject to any type of budget or approval by any body other than the elected County Attorney."

Before we discuss the particular fund at issue here, we believe it will be helpful briefly to describe the county budgeting process. In a county with a population less than 225,000, such as Midland County,[1] the county judge is responsible for preparing the county's budget "to cover all proposed expenditures of the county government for the succeeding fiscal year." Local Gov't Code § 111.003; see also 35 David B. Brooks, County and Special District Law § 15.3, at 532 (Texas Practice 1989). The county auditor may assist the county judge in this endeavor. Local Gov't Code § 111.003. The budget is to list, among other things, "estimated revenues available to cover the proposed budget." Id. § 111.004(b)(5).

To aid in preparing the budget, "the county judge may require any county officer to furnish information necessary for the judge to properly prepare the budget." Id. § 111.005. An officer who refuses to comply may be penalized in accordance with section 111.012 of the Local Government Code.

After the county judge has completed the preparation of the budget and filed a copy of it with the county clerk, see id. § 111.006, the commissioners court holds a public hearing on the proposed budget, id. § 111.007(a). At the conclusion of the public hearing, the county commissioners court may adopt the budget, with or without amendments. See id. § 111.008. Following final approval of the budget, "the commissioners court may spend county funds only in strict compliance with the budget, except in an emergency." Id. § 111.010(b). Nevertheless, the court subsequently may revise the budget "for county purposes." Id. § 111.011.

The county attorney's fee fund is amassed pursuant to article 102.007 of the Code of Criminal Procedure. Subarticle (a) authorizes a county attorney to collect a fee if his or her office collects and processes dishonored or forged checks. Any party to the offense is liable for the fee. See Code Crim. Proc. art. 102.007(b). Subarticle (c) prescribes the amount of the fee the county attorney may collect. Subarticle (f) provides for the county attorney's fee fund:

Fees collected under Subsection (c) of this article shall be deposited in the county treasury in a special fund to be administered by the county attorney. . . . Expenditures from this fund shall be at the sole discretion of the attorney and may be used only to defray the salaries and expenses of the prosecutor's office, but in no event may the county attorney . . . supplement his or her own salary from this fund.

This office has discussed the county attorney's fee fund in several opinions. We have made clear that the county attorney has exclusive control over monies in the fund. See Attorney General Opinion JM-1034 (1989) at 3; see also Attorney General Opinion JM-738 (1987) at 3.

While the county commissioners court ordinarily controls an expenditure of county funds, the county attorney need not obtain the commissioners court's approval before expending money from the fund. See Attorney General Opinion JM-313 (1985) at 2-3; see also Attorney General Opinion JM-632 (1987) at 2 (stating that statutory predecessor to Code of Criminal Procedure article 102.007 carves out an exception to the statutory authority of the county auditor). Attorney General Opinion JM-313 (1985) at 3; see also Attorney General Opinions JM-967 (1988) at 2, MW-584 (1982) at 3, MW-188 (1980). Moreover, the county attorney may not use the fund for purposes other than those listed in section 102.007 of the Code of Criminal Procedure. See generally Attorney General Opinion JM-313 (1985) at 3-13 (discussing various proposed uses of county attorney's fee fund).

We believe Attorney General Opinion MW-439 (1982) is particularly relevant to the issue you raise. Attorney General Opinion MW-439 considered whether a criminal district attorney must have competitively bid, pursuant to the statutes requiring counties to competitively bid certain purchases, purchases of supplies and equipment the attorney bought using money from the fund. Upon examining the language of the statute creating the fund, the opinion determined that expenditures from the fund are within the sole discretion of the county, district, or criminal district attorney who has accumulated the fund.[3] Attorney General Opinion MW-439 (1982) at 6. "Thus, by virtue of the express [language of the statute, the] hot-check fund is explicitly placed beyond the reach of the [commissioners court]."

Because a commissioners court is "without any right to administer the [hot-check] fund or to be involved in making expenditures from it," the opinion concluded the competitive bidding statutes did not apply to purchases made with money from the fund. Id. To conclude otherwise, this office stated, would allow a commissioners court indirectly to control the fund, and such a result would be contrary to the express language of the statutory predecessor of article 102.007 and, therefore, to the legislature's intent. Id. The opinion continued with an example: "A commissioners court could . . . refuse to accept any or all bids in a particular instance and thus interfere with the exclusive right of the designated individuals to administer the fund and to determine when, for what purposes, and under what circumstances expenditures will be made from it." Id.

Similarly, Attorney General Opinion JM-313 indicated that the county attorney may use money from the fund to increase the salaries of the county attorney's staff without first receiving the approval of the commissioners court. Attorney General Opinion JM-313 (1985) at 9. Moreover, the opinion continued, the commissioners court may not subsequently reduce the amount the county attorney's staff receives so as to counteract the salary increases. Id. Such a response would interfere with the county attorney's "sole discretion" over the fund. Id.

In our opinion, to permit a county judge, or the county auditor on behalf of the county judge, to require the county attorney to submit proposed revenues and expenditures for the county attorney's fee fund for the upcoming fiscal year would be tantamount to providing the county commissioners court an indirect means of controlling the fund, see Attorney General Opinion MW-439 (1982) at 6, or a means of interfering with the county attorney's exclusive discretion over the fund, see Attorney General Opinion JM-313 (1985) at 9. Under the county budgeting statutes, if the county attorney is required to submit to the county judge estimated revenues and expenditures for the use of the fund during the upcoming fiscal year, the estimates, along with the rest of the county budget, would be filed with the county clerk and would be available for public inspection. See Local Gov't Code § 111.006. Even if the commissioners court understands that it may not modify the county attorney's proposed budget, the public may comment on it during the public hearing on the proposed budget. See id. § 111.007(a). Commissioners may feel compelled to respond to public comments, particularly if they cannot amend the county attorney's budget for the fund in response to such comments. See id. § 111.008. Alternatively, citizens may view the commissioners court's silence or refusal to amend the budget as tacit approval.

In addition, the county budgeting process fosters accountability for the expenditure of county funds. By budgeting appropriations in advance of the start of the fiscal year, the appropriations "compel the application of county funds to the purposes for which they were appropriated . . . prevent the application of such funds to other purposes, and . . . prevent the expenditure of greater sums of money than are necessary for legitimate county purposes." See 4 Chester James Antieau, Local Government Law § 43.10, at 43-21 (1990). To determine here that the county attorney must submit a budget for the county attorney's fee fund would suggest that, under section 111.010(b) of the Local Government Code, the county attorney may spend monies from the fund only "in strict compliance with the budget, except in an emergency." Local Gov't Code § 111.010(b). Furthermore, as the county attorney has suggested in a letter to your predecessor, citizens may be led to conclude that the county attorney is irresponsibly using monies in the fund because he or she is not complying with the budget for the county attorney's fee fund.[7]

We therefore conclude that the county attorney's fee fund is wholly outside of the county budgeting process. We construe section 111.003 of the Local Government Code, which requires the county judge to prepare a budget to cover "all proposed expenditures of the county government for the succeeding fiscal year," to be inapplicable to the county attorney's fee fund because the county commissioners court has no right "to administer the fund or to be involved in making expenditures from it. . . ." See Attorney General Opinion MW-439 (1982) at 6. Thus, section 111.003 does not authorize the county judge, or the county auditor on behalf of the county judge, to require the county attorney to submit a budget for use of the county attorney's fee fund for the upcoming fiscal year.

Comparing article 102.007 with article 59.06(d) further bolsters our conclusion. Article 59.06 establishes, in specified circumstances, a special fund in the county treasury into which a county, district, or criminal district attorney must deposit proceeds from the sale of seized or forfeited contraband. Code Crim. Proc. art. 59.06(b), (c)(1). While the attorney representing the state is the administrator of the special fund, see id. art. 59.06(a), article 59.06(d) expressly precludes the attorney from expending the proceeds unless the attorney previously has "submitted to the commissioners court" a budget for the expenditure of the proceeds. See Attorney General Opinion DM-246 (1993) at 5-6 (stating that article 59.06(d) requires only that attorney submit budget for use of proceeds; county commissioners court may not evaluate such budget). Clearly, the legislature could have enacted a similar requirement for the expenditure of funds collected pursuant to article 102.007 of the Code of Criminal Procedure, but it has chosen not to. For us to impose such a requirement here would be inappropriate.

We do not believe our conclusion will harm the county's budgeting process in any way. Section 111.004(b)(5) of the Local Government Code stipulates that the budget must estimate revenues sufficient to cover the county's proposed expenditures. Indeed, the purpose of a request to a county officer to submit a statement of expenditures or charges the officer intends to incur in the next fiscal year generally is to aid the county judge, and subsequently the county commissioners court, "in considering the amounts required for the several corporate objects for which funds should be appropriated." 20 C.J.S. § 200, at 430 (1990). As we have suggested previously, the county commissioners court may not use expenditures from the fund to reduce county appropriations to the county attorney's office. See Attorney General Opinion JM-313 (1985) at 9. Thus, requiring the county attorney to submit a budget for the county attorney's fee fund for the upcoming fiscal year serves no practical purpose.

We further conclude that section 114.002 of the Local Government Code does not authorize a county auditor to require the county attorney to report his or her projection of revenues and expenditures for the fund for the succeeding fiscal year. Section 114.002(2)(A) requires the county auditor to establish the manner in which a county official annually must report "office fees collected and disbursed." (Emphasis added.) Section 114.002(2)(A) clearly refers to office fees the county official has, during the past year, received and expended. We cannot construe such plain language to authorize a county auditor to require of a county official projections of amounts to be collected and to be disbursed in the future.

We do not mean to suggest that the county attorney may not be held accountable for any misuse of the county attorney's fee fund. To the contrary, the county attorney is accountable for the proper use of the fund. See Attorney General Opinions JM-967 (1988) at 2, JM-632 (1987) at 2-3, MW-584 (1982) at 3, MW-188 (1980). The auditor is authorized to oversee the county attorney's books and records regarding the fund. See Local Gov't Code § 112.006(a). Moreover, the county auditor is required, at least annually, to "carefully examine" the county attorney's accounts. See id. § 115.0035(b). The county attorney must file all necessary reports concerning the receipt and expenditure of monies to the fund (after the county attorney has received or expended the money). See id. §§ 114.041, .042, .045. Finally, as we have suggested previously, the county attorney must administer the fund in accordance with any accounting and control procedures prescribed by the county auditor. See Attorney General Opinions JM-967 (1988) at 2, JM-632 (1987) at 2-3, MW-584 (1982) at 3, MW-188 (1980).

SUMMARY

The county attorney's fee fund, accumulated pursuant to article 102.007 of the Code of Criminal Procedure, is wholly outside of the county budgeting process. The county judge, or the county auditor on behalf of the county judge, may not require the county attorney to submit a budget for use of the county attorney's fee fund for the upcoming fiscal year.

Section 114.002(2)(A) of the Local Government Code authorizes a county auditor to establish the manner in which a county official must report office fees the official received and expended in the past. The plain language of section 114.002(2)(A) does not permit a county auditor to require a county official to project amounts the official will collect and will disburse in the future.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General

[1] The 1994-95 Texas Almanac lists the population of Midland County as 110,811. The Dallas Morning News, 1994-95 Texas Almanac 246 (1993).

[3] The relevant competitive bidding statutes, V.T.C.S. articles 1659a-4 and 2368a, required a county acting through its commissioners court to competitively bid the purchase of certain supplies and equipment and to award the contract to that bidder who, in the judgment of the commissioners court, submitted the lowest responsible bid. Id. at 1-2. Based on their plain language, the opinion determined that the competitive bidding statutes applied only to certain purchases made by the county commissioners court. Id. at 6. The legislature repealed V.T.C.S. article 1659a-4 in 1985. See Act of May 27, 1985, 69th Leg., R.S., ch. 641, § 11(1), 1985 Tex. Gen. Laws 2377, 2384. The legislature repealed V.T.C.S. article 2368a in 1987. See Act of May 1, 1987, 70th Leg., R.S., ch. 149, § 49(1), 1987 Tex. Gen. Laws 707, 1307. The material in article 2368a relating to counties discussed in Attorney General Opinion MW-439 (1982) is now found in chapter 262, subchapter C of the Local Government Code. This office stated, in Attorney General Opinion JM-967, that the legislature had amended the hot-check fund laws and the bid laws; the opinion maintained, however, that the amendments did not change the conclusion in Attorney General Opinion MW-439 that hot-check fund purchases are not subject to the competitive bidding statutes. JM-967 (1988) at 2.