Who reconciles a county's special fund accounts, the elected official or the treasurer?

Plain-English summary

Anna Laura Cavazos Ramirez, the Webb County Attorney, asked the Attorney General a turf question about county bookkeeping. Some county accounts, called special fund accounts, are created by statute and sit under the direct control of an elected official other than the commissioners court. In Webb County, the tax assessor-collector controlled eleven such accounts. For years the county treasurer had reconciled those accounts for the tax assessor-collector. But after the 82nd Legislature amended Local Government Code section 113.008, the treasurer refused to keep doing it, and the question was whose job reconciliation now is.

The opinion read the amended statute as a whole. Subsection (b-1) lets an official with direct authority over funds request that the county treasurer take responsibility for reconciling the checks and payments from those funds. Subsection (b) describes this as the official's power to "delegate" reconciliation to the treasurer. And if the official fails to reconcile monthly, the statute says the official "shall transfer responsibility" to the treasurer. The Legislature did not spell out that the treasurer cannot refuse, but reading the provisions together, the opinion concluded the statute implies the treasurer's duty to reconcile when an official is unable or unwilling. That fit the treasurer's broader role as the chief custodian of county funds. So the treasurer may not refuse such a request.

Because the answer to the first question was that the treasurer cannot refuse, the opinion did not need to reach the second question (whether an official could dodge the work by simply not preparing the accounts).

The third question asked whether an official's refusal to reconcile counts as a "failure" with consequences. The opinion explained that once an official delegates reconciliation to the treasurer under subsection (b-1), the task becomes the treasurer's duty, not the official's, so the official cannot be said to have failed to perform it. A footnote reinforced this: once reconciliation is delegated, the depository sends the bank statements only to the treasurer, which would make it impossible for the official to reconcile anyway. The opinion limited itself to the official's side of things and did not address what consequences might fall on a treasurer who fails to reconcile.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The Webb County Attorney (as the opinion described it): The opinion answered that the county treasurer could not refuse an elected official's request to reconcile the official's special fund accounts, which made the second question moot, and explained that a valid delegation shifts the reconciliation duty to the treasurer so the official has not "failed."

County treasurers (as the opinion described it): The opinion read section 113.008 as a whole to impose on the treasurer the duty to reconcile an official's special fund accounts when the official is unable or unwilling, consistent with the treasurer's role as chief custodian of county funds.

Elected officials with special fund accounts (as the opinion described it): The opinion treated subsection (b-1) as letting such an official delegate or transfer reconciliation to the treasurer; after a valid delegation, reconciliation is the treasurer's duty, and the depository would send statements only to the treasurer.

Common questions

Can a Texas county treasurer refuse to reconcile an elected official's special fund accounts?
According to the opinion, no. Reading section 113.008 as a whole, the treasurer has a duty to reconcile those accounts when the controlling official is unable or unwilling, so the treasurer may not refuse the request.

What did the 2011 amendments change?
The opinion described subsections (b-1) and (b) as letting an official delegate, or in some cases transfer, reconciliation responsibility to the treasurer, and it read those provisions together to place the duty on the treasurer in that situation.

If an official delegates reconciliation, can the official still be penalized for not doing it?
The opinion said no. Once reconciliation is validly delegated to the treasurer, it is the treasurer's duty, not the official's, so the official cannot be said to have failed to perform a duty that is no longer theirs.

Did the opinion say what happens if the treasurer fails to reconcile?
No. The request asked only about consequences for officials who do not reconcile accounts under their direct authority, so the opinion did not address consequences for a treasurer's failure.

Background and statutory framework

Local Government Code section 113.008, as amended by the 82nd Legislature, governs reconciliation of county bank accounts. The county depository must provide monthly bank statements to the county treasurer, and to the official responsible for an account when the checks are payable from funds under that official's direct authority and the official has not delegated reconciliation under subsection (b-1). Tex. Loc. Gov't Code Ann. § 113.008, (b), (b)(1), (b)(2), (b-1) (West Supp. 2011). Subsection (b-1) lets the official request the treasurer to be responsible, and requires transfer of responsibility if the official fails to reconcile monthly; subsection (f) requires an official with special funds to reconcile balances and report adjustments to the county auditor. Id. § 113.008. Subsection (g) exempts certain funds not relevant here. Id. § 113.008(g).

Reading the statute as a whole, as Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998), directs, the opinion concluded the treasurer must reconcile when an official is unable or unwilling, consistent with the treasurer's role as chief custodian of county funds. Tex. Loc. Gov't Code Ann. § 113.001 (West 2008). As an illustration of a statutory special fund, the opinion cited the hot-check fee account administered by a county, district, or criminal district attorney. Tex. Code Crim. Proc. Ann. art. 102.007(a), (f) (West Supp. 2011). The 2011 amendment was Act of May 19, 2011, 82d Leg., R.S., ch. 606, § 7, 2011 Tex. Gen. Laws 1465, 1466-67.

Citations

Cases:

• Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998)

Statutes:

• Tex. Loc. Gov't Code Ann. § 113.008 (West Supp. 2011)
• Tex. Loc. Gov't Code Ann. § 113.008(b) (West Supp. 2011)
• Tex. Loc. Gov't Code Ann. § 113.008(b)(1)
• Tex. Loc. Gov't Code Ann. § 113.008(b)(2) (West Supp. 2011)
• Tex. Loc. Gov't Code Ann. § 113.008(b-1) (West Supp. 2011)
• Tex. Loc. Gov't Code Ann. § 113.008(g) (West Supp. 2011)
• Tex. Loc. Gov't Code Ann. § 113.001 (West 2008)
• Tex. Code Crim. Proc. Ann. art. 102.007(a) (West Supp. 2011)
• Tex. Code Crim. Proc. Ann. art. 102.007(f)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0937
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0937.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

May 29, 2012

The Honorable Anna Laura Cavazos Ramirez Opinion No. GA-0937
Webb County Attorney
Post Office Box 420268 Re: Authority of a county treasurer with regard to
Laredo, Texas 78042-0268 the reconciliation of accounts of elected officials
(RQ-1018-GA)

Dear Ms. Ramirez:

You ask for an opinion concerning which county official is responsible for reconciling the checks and orders for payment from special fund accounts.[1] As background, you explain that certain funds or accounts are created by statute and under the direct control of an elected county official other than the commissioners court.[2] Request Letter at 2. In Webb County, you note that the tax assessor-collector controls eleven such special fund accounts. Id. at 3. You tell us that in the past, the county treasurer has reconciled these special fund accounts for the tax assessor-collector. Id. However, after the Eighty-second Legislature amended Local Government Code section 113.008, the county treasurer refused the tax assessor-collector's request to continue reconciling the accounts. Id. You therefore ask us to opine on whose responsibility it is to reconcile these accounts.

Local Government Code section 113.008 states, in relevant part:

(a) The county depository shall provide statements of all bank activity and documentation supporting a statement's transactions not less than once a month to the county treasurer.

(b) The county depository shall provide the information required by Subsection (a) to the official responsible for the account if:
(1) the checks and orders for payment are payable from funds under the direct authority of an official other than the county treasurer as provided by statute; and
(2) the official has not delegated the responsibility for reconciliation under Subsection (b-1).

(b-1) The official may request the county treasurer to be responsible for the reconciliation of the checks and orders for payment payable from the funds that are under the direct authority of the official. Except as provided by Subsection (g), an official who fails to reconcile the official's special accounts monthly shall transfer responsibility for account reconciliation to the county treasurer. Unless the official and county treasurer set another period in writing for the duration of a transfer under this section, the transfer is effective for the duration of the term of office for the designating officer.

(f) Except as provided by Subsection (g), an official with special funds in the depository bank shall:
(1) reconcile all balances and transactions in the statement of activity to the transactions and balances shown on the official's records; and
(2) each month, ensure all financial adjustments resulting from the reconciliation are reported to the county auditor for entry in the general set of records and reflected in the cash receipts and disbursement registers of the county treasurer.[3]

TEX. LOC. GOV'T CODE ANN. § 113.008 (West Supp. 2011) (footnote added). You first ask whether the county treasurer can "refuse a request by an elected official with special fund accounts to reconcile the checks and orders for payments from those special fund accounts."[4] Request Letter at 1. You suggest that the newly-adopted subsection (f) "clearly identifies the elected official with special fund accounts as the individual responsible for reconciling all balances and transactions." Id. at 3. However, the plain language of subsection (b-1), which was also amended during the most recent legislative session, allows an official with direct authority for funds to request that the county treasurer be responsible for the reconciliation of the checks and orders for payment of those funds.[5] TEX. LOC. GOV'T CODE ANN. § 113.008(b-1) (West Supp. 2011). Subsection (b) further explains that an official with a special fund account is authorized by subsection (b-1) to "delegate" the responsibility for reconciliation to the county treasurer. Id. § 113.008(b). In instances where the official fails to reconcile the accounts monthly, the official "shall transfer responsibility" to the county treasurer. Id. § 113.008(b-1). While the Legislature did not expressly prohibit the county treasurer from refusing a request by an official to reconcile special accounts, when read as a whole the language of the statute implies that it is the county treasurer's duty to reconcile the special fund accounts if an official is unable or unwilling to do so.[6] See Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998) (explaining that "legislative intent should be determined from the entire act" and that "we must read the statute as a whole"); cf. TEX. LOC. GOV'T CODE ANN. § 113.001 (West 2008) ("The county treasurer, as chief custodian of county funds, shall ... account for all money belonging to the county."). Therefore, a county treasurer may not refuse a request by an official to reconcile the checks and orders for payments from special fund accounts under the authority of the official.

Your second question asks, "[i]f the county treasurer can refuse the request of the elected official, can the elected official refuse to reconcile the special fund accounts by simply not preparing them?" Request Letter at 1. Because we conclude that a county treasurer may not refuse the request of an official to reconcile the checks and orders for payments from special fund accounts, we do not address your second question further.

Your third question asks whether an elected official's refusal to reconcile special fund accounts can be designated a "failure" as described in the statute and, if so, what consequences exist for the failure. Id. at 2. If an elected official has delegated responsibility for reconciliation of special fund accounts to the county treasurer, as section 113.008(b-1) authorizes the elected official to do, the reconciliation is no longer a duty belonging to the elected official but instead is a duty belonging to the county treasurer. Thus, the elected official cannot be said to have failed to perform that duty. You ask only about the consequences that may exist for elected officials who do not reconcile accounts under their direct authority. Therefore, we do not address what consequences may exist if a county treasurer fails to reconcile special fund accounts as required by section 113.008.

SUMMARY

Pursuant to Local Government Code section 113.008, a county treasurer must reconcile the checks and orders for payment payable from funds that are under the direct authority of other county officials if those officials are unable or unwilling to perform the reconciliation themselves.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Anna Laura Cavazos Ramirez, Webb Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1-2 (Oct. 31, 2011), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] As one example, the Legislature has authorized a county attorney, district attorney, or criminal district attorney to collect a fee for hot checks processed and collected by the attorney. TEX. CODE CRIM. PROC. ANN. art. 102.007(a) (West Supp. 2011). The fees are deposited into the county treasury in a special fund to be administered by the county attorney, district attorney, or criminal district attorney. Id. art. 102.007(f).

[3] Subsection (g) explains that "Subsections (b-1) and (f)(2) do not apply to" certain funds not relevant to this request. See TEX. LOC. GOV'T CODE ANN. § 113.008(g) (West Supp. 2011).

[4] For purposes of this opinion, we will define "special fund accounts" by tracking the Legislature's language in subsection 113.008(b)(1), describing these accounts as "funds under the direct authority of an official other than the county treasurer as provided by statute." Id. § 113.008(b)(1).

[5] Act of May 19, 2011, 82d Leg., R.S., ch. 606, § 7, 2011 Tex. Gen. Laws 1465, 1466-67 (codified at TEX. LOC. GOV'T CODE ANN. § 113.008).

[6] In fact, subsection (b) requires the county depository to provide statements of all bank activity and documentation of the accounts only if "the official has not delegated the responsibility for reconciliation under Subsection (b-1)." TEX. LOC. GOV'T CODE ANN. § 113.008(b)(2) (West Supp. 2011). If an official has delegated responsibility for reconciliation, the only person receiving bank statements from the depository would be the county treasurer, making it impossible for the official to perform a reconciliation as required by subsection (f).