TX JM-882 April 4, 1988

Did a county auditor or county treasurer have to sign before money could be withdrawn from a court trust-fund account administered by a county or district clerk?

Short answer: No. The clerk with legal custody of the trust funds drew the check, and withdrawal required an order from the judge of the court where the funds had been deposited. Neither the county auditor nor the county treasurer had to sign because the deposited money was not county money.

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This page answers the general question as of 1988. Ezel answers yours: what it means for your facts, under current Texas law, with citations.

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Texas AG Opinion JM-882: Signatures for Court Trust-Fund Withdrawals

Plain-English summary

Young County asked whether its auditor, treasurer, or both had to sign before money could be withdrawn from a trust-fund account administered by a county or district clerk.

The Attorney General said neither signature was required. Under former article 2558a, the depository paid checks drawn by the county or district clerk. A clerk could draw a check on deposited trust funds only upon an order from the judge of the court where the money had been deposited.

The statutes governing county treasurers and auditors dealt with county money or property belonging to the county. Court trust funds held by a clerk were not county money. The opinion found no statute giving the treasurer or auditor authority or responsibility to sign instruments withdrawing those funds.

The required combination was therefore a check drawn by the clerk who had legal custody of the funds and an order from the proper judge.

Currency note

This opinion was issued in 1988. 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.

Common questions

Did the county treasurer have to sign the withdrawal?

No. The opinion concluded that a treasurer's signature was unnecessary.

Did the county auditor have to sign it?

No. The opinion found no statute requiring the auditor's signature either.

Who drew the check?

The county or district clerk who had legal custody of the trust funds.

What authorized the withdrawal?

An order from the judge of the court in which the funds had been deposited.

Why did the ordinary county-finance rules not control?

Because money deposited with a county or district clerk as a court trust fund was not county money.

Background and statutory framework

Civil Practice and Remedies Code section 7.002 and the cited cases described county and district clerks as trustees for money or property deposited with a court while a suit was pending. Former article 2558a governed county selection of depositories for trust funds under those clerks' administration and control.

Section 4a allowed the commissioners court, acting through the county auditor or treasurer, to place an estimated portion of clerk trust funds on time deposit. Section 6 required the depository to pay checks drawn by the county or district clerk. Sections 11 and 12 kept the account in the depositing clerk's name and made withdrawal subject to a judicial order.

Texas Constitution article XVI, section 44, and former articles 1709 and 1709a addressed the county treasurer's duties concerning county money. Former article 1651 gave the auditor oversight of records involving money or property for the use of, or belonging to, the county. Those provisions did not supply an additional signature requirement for court trust funds.

Citations

Statutory authority:

Civil Practice and Remedies Code section 7.002
Former V.T.C.S. article 2558a, sections 4a, 6, and 11-13
Former V.T.C.S. articles 2554, 1651, 1653, 1709, and 1709a
Texas Constitution article XVI, section 44

Cases:

Lawyers Surety Co. v. Reina, 483 S.W.2d 911 (Tex. Civ. App. - Amarillo 1972, writ ref'd n.r.e.)
Harris County v. Sellers, 468 S.W.2d 950 (Tex. Civ. App. - Houston [1st Dist.] 1971), reversed on other grounds, 483 S.W.2d 242 (Tex. 1972)

Prior Attorney General material referenced: H-360 (1974).

Source

Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-882
Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0882.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected, but minor errors may remain; the linked PDF is authoritative.

April 4, 1988

Honorable Stanley D. Curbo Opinion No. JM-882
Young County Attorney
P. O. Box 298 Re: Whether the signature
Graham, Texas 76046 of the county auditor and/
or county treasurer is
required for withdrawal of
money from a trust fund
account administered by a
county or district clerk
(RQ-1041)

Dear Mr. Curbo:

County and district court clerks serve as trustees for money or property paid to or deposited with a court pending disposition of a suit. See Civil Practice and Remedies Code, § 7.002. See also Lawyers Surety Co. v. Reina, 483 S.W.2d 911 (Tex. Civ. App. - Amarillo 1972, writ ref'd n.r.e.); Harris County v. Sellers, 468 S.W.2d 950 (Tex. Civ. App. - Houston [1st Dist.] 1971, reversed on other grounds, 483 S.W.2d 242 (Tex. 1972)); Attorney General Opinion H-360 (1974). Article 2558a,¹ V.T.C.S., governs the county commissioners' selection of depositories for trust funds that are under the administration and control of county and district clerks. You ask whether the signature of either the county auditor or the county treasurer or both is required for the withdrawal of money from such a trust fund account administered by a county or district clerk. Your question is prompted by the fact that the county treasurer, as chief custodian of county finances, is required to affix his signature to county warrants before they can be presented and honored by the county's depository. V.T.C.S. art. 2554; see generally V.T.C.S. arts. 1709, 1709a. We conclude that the signature of neither the county treasurer nor the county auditor is required for the withdrawal of money from a trust fund account administered by a county or district clerk. Money deposited with a court and administered by a county or district clerk in a trust fund pursuant to article 2558a, V.T.C.S., may be withdrawn only by a check drawn by the clerk having custody by law of those funds, upon the order of the judge of the court in which the funds have been deposited.

¹ Arts. 2558a, 2554, 1653, 1651, 1709, 1709a, V.T.C.S., have been repealed and re-codified, effective September 1, 1987, with the Local Government Code. See Acts 1987, 70th Leg., ch. 149, §§ 1, 49.

Title 47 of the Revised Civil Statutes of Texas contains the statutes governing the selection by various sorts of political subdivisions in the state of depositories for various public funds. Article 2558a, V.T.C.S., sets forth the provisions that are applicable to a county commissioners court selecting depositories for trust funds under the administration and control of county and district clerks. Section 4a of article 2558a governs the placing of trust funds on time deposit and sets forth the following:

The Commissioners Court of each county, acting by and through the County Auditor, or if there is no County Auditor then the County Treasurer, of such county, is authorized to place on time deposit with the depository bank for trust funds in the possession of County and District Clerks of such County, that portion of the trust funds account estimated by the County Auditor or County Treasurer, as the case may be, as not required immediately to pay out all amounts in accordance with proper orders of the Judge of the Court in which funds have been deposited. If at any time the funds so placed on time deposit are required before maturity, they shall be made available by the depository bank but the depository bank shall not be liable for interest earned on such amount withdrawn from time deposit. The Commissioners Court is authorized and directed to receive all interest so earned on time deposit of such trust funds and to place all such interest into the General Fund of the County as an offset to the expenses of handling such trust funds for the benefit of litigants.

Section 6 of article 2558a provides for payment upon the presentment of checks and sets forth the following relevant provisions:

It shall be the duty of the depository to provide for the payment at the county seat of the county upon presentment all checks drawn by the County or District Clerk upon the funds deposited in the name of such Clerk as long as such funds shall be in the possession of the depository subject to such checks. (Emphasis added.)

Section 11 of article 2558a sets forth the following relevant language: "The funds deposited by the Clerk shall be carried as a Trust Fund account in the name of the Clerk making the deposit, and same shall be subject to withdrawal by the Clerk under the conditions set out in the succeeding paragraph of this Act." (Emphasis added.) Section 12 of article 2558a provides:

Except upon an order of the Judge of the Court in which funds have been deposited, no check shall be drawn on said depository for any part of said funds by the Clerk except for payment to the person or persons to whom the amount of said check is due. All checks drawn by the Clerks shall show the style number of the proceeding in which money was deposited with the Clerk. (Emphasis added.)

See also section 13 of V.T.C.S. art. 2558a.

Article XVI, section 44, of the Texas Constitution provides, inter alia, that the legislature shall prescribe the duties of the office of county treasurer. Article 1709, V.T.C.S., sets forth the duties of the county treasurer and provides the following relevant language:

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 disburse the same, in such manner as the Commissioners Court may require or direct, not inconsistent with constitutional law. (Emphasis added.)

Article 1709a, V.T.C.S., providing specifically for the receipt, safe-keeping and disbursement of county funds, sets forth at section 4 the following relevant provisions:

From and after the effective date of this Act the County Treasurer in each county shall receive all moneys belonging to the county, for whatever purposes they may be claimed, and shall pay and apply the same as required by law. No moneys shall be expended or withdrawn from the county treasury except by checks or warrants drawn on the county treasury, whether such moneys are in a county depository as required by law or not. (Emphasis added.)

Article 2554, V.T.C.S., details the way in which county warrants are to be paid and provides the following relevant language:

It shall be the duty of the county treasurer upon the presentation to him of any warrant, check, voucher, or order drawn by the proper authority, if there be funds sufficient for the payment thereof on deposit in the account against which such warrant is drawn, to endorse upon the face of such instrument his order to pay the same to the payee named therein and to charge the same on his books to the fund upon which it is drawn.

Article 1651, V.T.C.S., sets forth the duties of the county auditor and provides that

[t]he Auditor shall have a general oversight of all the books and records of all the officers of the county, district or state, who may be authorized or required by law to receive or collect any money, funds, fees, or other property for the use of or, belonging to, the county. . . .

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