Can a Texas county auditor audit a sheriff's accounts, including bail bond, commissary, and forfeiture funds?

Plain-English summary

The Hudspeth County Attorney told the AG that the county sheriff kept several accounts in his own name, separate from the county auditor and treasurer, and that the sheriff claimed they were "Sheriff's funds and not county funds" beyond the auditor's reach. The accounts held bail bond money and general sheriff's business funds, inmate commissary deposits, money seized for civil asset forfeiture, money already forfeited, and possibly inmate phone revenue. The question was how far the county auditor's authority reached over each of them.

The AG split the answer into two parts: where the money may be held, and who may audit it. On where it may be held, the AG walked through the Local Government Code's default rule that money belonging to a county goes to the county treasurer, then identified the statutory exceptions. Cash bail bond funds tied to cases that have not yet been filed, inmates' personal funds, and revenue from prepaid phone cards (part of commissary proceeds) may sit outside the county treasury. Money actually seized or forfeited, and revenue from pay telephones and telephone services, must be held in the county treasury.

On auditing, the AG drew a sharp line: whether money is "county money" does not control whether the auditor can audit it. Relying on a line of prior AG opinions, the AG concluded that the auditor may audit all funds a county officer holds in his official capacity, "whether or not they are county funds." So every account the sheriff held in his official capacity was subject to the auditor's oversight and audit, no matter where it sat.

The AG treated the auditor's countersignature power differently. The broad regulatory authority that lets an auditor reach non-county funds (Local Government Code section 112.002(b)) applies only in counties of 190,000 or more. Hudspeth County had a population of 3,476, so the auditor's regulatory authority ran only over county funds (section 112.001). The AG concluded that in a county under 190,000, unless a statute says otherwise, a court would have a basis to find no authority to require the auditor's countersignature on sheriff's funds properly held outside the county treasury.

Currency note

This opinion was issued in 2016. 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 population thresholds and the audit provisions cited here may have been amended since 2016, so confirm the current law before relying on these specifics.

What the opinion meant for those who asked

Hudspeth County and its county attorney (as the opinion described it): The opinion told the county that the sheriff's claim of funds being beyond the auditor's reach did not hold. All funds the sheriff held in his official capacity, including the bail bond, commissary, forfeiture, and inmate-phone accounts, were subject to audit by the county auditor regardless of whether they were "county funds" or were held outside the treasury.

County auditors (as the opinion described it): The opinion described the auditor's audit authority as reaching every account a county officer holds in an official capacity, but distinguished the narrower countersignature and regulatory authority, which in a county under 190,000 extended only over county funds.

County sheriffs (as the opinion described it): The opinion described which accounts a sheriff may keep outside the county treasury (cash bail bonds from unfiled cases, inmate personal funds, prepaid phone-card revenue) and which must go into the treasury (seized funds, forfeited funds, pay-telephone revenue), while making clear that placement outside the treasury did not place the account beyond the auditor's audit.

Common questions

Can a county auditor in Texas audit the sheriff's bank accounts?
Under this opinion, yes. The AG concluded the auditor may audit all funds a county officer holds in his official capacity, whether or not they are county funds, so accounts the sheriff holds officially are subject to audit even when held outside the county treasury.

Which sheriff's accounts can be kept outside the county treasury?
The AG identified cash bail bond funds from cases not yet filed, inmates' personal funds, and revenue from prepaid phone cards (treated as commissary proceeds) as funds that may be held outside the treasury.

Which funds must go into the county treasury?
The AG concluded that seized funds, forfeited funds, and revenue from pay telephones and telephone services must be held in the county treasury.

Does the sheriff get to decide these accounts are "his" funds and off-limits?
No. The AG concluded the label "county money" does not determine auditability; funds held in the sheriff's official capacity are subject to the auditor's oversight regardless of how the sheriff characterizes them.

Can the auditor require a countersignature on funds the sheriff holds outside the treasury?
The AG concluded that in a county with fewer than 190,000 people, unless a statute provides otherwise, a court would have a basis to find no authority to require the auditor's countersignature on sheriff's funds properly held outside the county treasury, because the broader regulatory authority over non-county funds applies only in larger counties.

Background and statutory framework

The county auditor's authority sits across several chapters of the Local Government Code. The auditor has general oversight of the books and records of any county officer authorized to receive money for the county, must maintain an account for each such officer, and must keep transactional records of receipts and disbursements (Tex. Loc. Gov't Code §§ 112.006(a), 112.005(a), (c), 112.007). The auditor has continual access to examine and investigate the correctness of any officer's records, must examine accounts of public funds controlled by county officials (including law enforcement seizure and forfeiture accounts) at least annually, and is directed to examine the sheriff's accounts to find county money not properly accounted for (Tex. Loc. Gov't Code §§ 115.001(1), 115.0035(a)-(b), 115.901(a)).

The default custody rule routes money belonging to a county to the county treasurer, the chief custodian of county funds (Tex. Loc. Gov't Code §§ 113.021(a)-(b), 113.001, 113.003). Against that rule, the AG placed each account: unfiled-case cash bail bonds and inmate personal funds may stay outside the treasury, while seized funds (held by the county clerk under section 112.051(a)) and forfeited funds (placed in a special fund in the county treasury under Code of Criminal Procedure article 59.06(c)(3)) and pay-telephone revenue must go in (Tex. Code Crim. Proc. arts. 17.02, 59.06(c)(3); Tex. Loc. Gov't Code §§ 112.051(a), 351.002, 351.0415(b)(1); 37 Tex. Admin. Code §§ 265.10, 269.1(2)(L)).

On the countersignature, the AG distinguished the auditor's regulatory authority over non-county funds under section 112.002(b), which applies only in counties of 190,000 or more (section 112.002(a)), from the corresponding authority in smaller counties under section 112.001, which extends only over county funds (Tex. Loc. Gov't Code §§ 112.002(a)-(b), 112.001, 113.043). Hudspeth County's population put it in the smaller-county category, so the AG concluded a court would have a basis to find no countersignature authority over the sheriff's funds properly held outside the treasury.

Citations

Statutory provisions:

• Tex. Loc. Gov't Code § 112.001 (auditor regulations, counties under 190,000)
• Tex. Loc. Gov't Code § 112.002(a)-(b) (auditor regulations, counties of 190,000 or more)
• Tex. Loc. Gov't Code § 112.005(a), (c) (account for each county officer)
• Tex. Loc. Gov't Code § 112.006(a) (general oversight of books and records)
• Tex. Loc. Gov't Code § 112.007 (general set of records)
• Tex. Loc. Gov't Code § 112.051(a) (account maintained by county clerk)
• Tex. Loc. Gov't Code § 113.001 (county treasurer as chief custodian)
• Tex. Loc. Gov't Code § 113.003 (treasurer receives all county money)
• Tex. Loc. Gov't Code § 113.021(a)-(b) (deposit of county money with treasurer)
• Tex. Loc. Gov't Code § 113.043 (auditor's countersignature)
• Tex. Loc. Gov't Code § 114.041(a) (record of fees and money received)
• Tex. Loc. Gov't Code § 115.001(1) (continual access to officer records)
• Tex. Loc. Gov't Code § 115.0035(a)-(b) (audit of seizure and forfeiture accounts)
• Tex. Loc. Gov't Code § 115.901(a) (examination of sheriff's accounts)
• Tex. Loc. Gov't Code § 351.002 (Commission on Jail Standards rulemaking)
• Tex. Loc. Gov't Code § 351.0415(b)(1) (inmate personal funds)
• Tex. Code Crim. Proc. art. 17.02 (deposit of bail bond funds)
• Tex. Code Crim. Proc. art. 59.06(c)(3) (forfeited funds in special county fund)
• 37 Tex. Admin. Code § 265.10 (inmate property checking)
• 37 Tex. Admin. Code § 269.1(2)(L) (record system for inmate accounts)

Prior Attorney General opinions cited:

• Tex. Att'y Gen. Op. No. H-1185 (1978)
• Tex. Att'y Gen. Op. No. JM-702 (1987)
• Tex. Att'y Gen. Op. No. JM-1263 (1990)
• Tex. Att'y Gen. Op. No. DM-247 (1993)
• Tex. Att'y Gen. Op. No. DM-282 (1994)
• Tex. Att'y Gen. Op. No. JC-0195 (2000)
• Tex. Att'y Gen. Op. No. GA-0636 (2008)
• Tex. Att'y Gen. Op. No. GA-0704 (2009)
• Tex. Att'y Gen. Op. No. GA-0791 (2010)
• Tex. Att'y Gen. Op. No. GA-0814 (2010)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0079
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0079.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 2, 2016

The Honorable C.R. Kit Bramblett Opinion No. KP-0079
Hudspeth County Attorney
Post Office Box 221528 Re: Administration and audit of accounts
El Paso, Texas 79913-1528 maintained by a county sheriff (RQ-0065-KP)

Dear Mr. Bramblett:

You identify several accounts maintained by the Hudspeth County sheriff and ask to what extent the county auditor has authority over their administration. [1] You explain that the respective accounts hold: (1) "funds received on bail bonds and other general sheriff's business"; (2) commissary funds deposited by inmates; (3) funds seized for civil asset forfeiture purposes; (4) funds forfeited under civil asset forfeiture proceedings; and possibly (5) "inmate phone revenue." Request Letter at 1. You tell us that the sheriff currently maintains the accounts in his own name, "independently from the county auditor and county treasurer" and that the sheriff "exclusively controls expenditures" from the accounts. Id. You also tell us the sheriff asserts that all of "the accounts are Sheriff's funds and not county funds" and that the auditor is thus without authority to oversee or require the auditor's countersignature on the accounts at issue. [2] Id. at 2.

We begin by reviewing the statutory authority of the county auditor, which is found in several chapters of the Local Government Code. The auditor has "general oversight of the books and records of a county ... officer authorized or required by law to receive or collect money or other property that is intended for the use of the county or that belongs to the county." TEX. LOC. GOV'T CODE § 112.006(a). The auditor must maintain an account for each such authorized county officer and require the officer to supply statements to the auditor. Id. § 112.005(a), (c). The auditor must also keep a general set of transactional records of those accounts, showing all the receipts and disbursements. Id. § 112.007; see also Tex. Att'y Gen. Op. No. DM-247 (1993) at 7 (concluding that the auditor must comply with sections 112.005 and 112.007 in the context of forfeiture fund transactions of law enforcement agencies). In a county with a population of 190,000 or less, a county officer must keep a record of fees earned and of money received "as deposits for costs, trust fund deposits in the registry of a court, fees of office, and commissions." [3] TEX. LOC. GOV'T CODE § 114.041(a). Each year, the auditor must examine these records and corresponding accounts and report the findings to the next grand jury or district court. Id. The auditor may also adopt and enforce regulations he or she "considers necessary for the speedy and proper collecting, checking, and accounting of the revenues and other funds and fees that belong to the county." Id. § 112.001 (applicable to a county with a population of less than 190,000).

The auditor also has broad auditing authority, for which the auditor "shall have continual access to and shall examine and investigate the correctness of ... the books, accounts, reports, vouchers, and other records of any officer." Id. § 115.001(1); see also id. § 115.0035(a)-(b) (requiring the auditor to examine the accounts of public funds that are subject to the control of any county official, "including the accounts of law enforcement agencies ... composed of money and proceeds of property seized and forfeited to those officials," and to do so at least once each fiscal year, or more often if the auditor desires). In particular, the auditor is directed to "examine the accounts, dockets, and records of ... the sheriff ... to determine if any money belonging to the county and in the possession of the officer has not been accounted for and paid over according to law." Id. § 115.901(a).

The general rule is that a person who collects "fees, commissions, funds, and other money belonging to a county" must deposit the money with the county treasurer, who then places the money "in the proper fund" in the county depository "to the credit of the person or department collecting the money." Id. § 113.021(a)-(b); see also id. §§ 113.001 (designating the county treasurer as the "chief custodian of county funds"), .003 (providing that the county treasurer "shall receive all money belonging to the county from whatever source it may be derived"). Thus, this office has previously concluded that a sheriff, among other officers, is not authorized to establish individual bank accounts for the county funds collected, have his name on the signature card, and sign checks on that account or otherwise control and withdraw funds, absent a statute directing otherwise. Tex. Att'y Gen. Op. No. GA-0636 (2008) at 4. Against this general rule, we consider the specific funds you raise questions about.

Bail bond funds are deposited "with the custodian of funds of the court in which the prosecution is pending." TEX. CODE CRIM. PROC. art. 17.02. However, if cash bail bond funds cannot be deposited with a court because no case has yet been filed, a sheriff may keep the funds "in a separate interest bearing account at the county depository" outside of the county treasury account, assuming there is no statutory directive otherwise. Tex. Att'y Gen. Op. No. JC-0195 (2000) at 5. Funds deposited by inmates for use in the county jail commissary are kept by the sheriff in an account that serves as a depository for all inmates' personal funds. See 37 TEX. ADMIN. CODE § 265.10 (2015) (Tex. Comm. on Jail Standards, Inmate Property Checking); id. § 269.1(2)(L) (Record System) (requiring a sheriff to "maintain ... receipts and expenditures of inmate accounts"); TEX. LOC. GOV'T CODE § 351.002 (authorizing the Commission on Jail Standards to promulgate rules governing the operation of county jails). Unlike the proceeds of the commissary itself, however, which funds are in the "exclusive control" of the sheriff and may thus be held outside the county treasury, personal funds of inmates are not directed to be held in any particular place or manner. TEX. LOC. GOV'T CODE § 351.0415(b)(1). Thus, a prior opinion of this office concluded that in the absence of a statutory or regulatory directive, a sheriff has the discretion to decide where to place inmates' money for safekeeping, including in an account, but that the sheriff's discretion "may be limited by the county auditor." Tex. Att'y Gen. Op. No. DM-282 (1994) at 4-5; see also Tex. Att'y Gen. Op. No. GA-0791 (2010) at 3 (concluding that commissary proceeds do not have to be deposited with the county treasurer, although they are subject to the limits of section 351.0415, which include audit by the county auditor).

Seized asset forfeiture funds, to the extent they constitute a "judgment, fine, forfeiture, or penalty that is payable to and rendered in any court of the county and that the sheriff is charged by law to collect," must be kept in an account maintained by the county clerk pursuant to section 112.051(a) of the Local Government Code. See TEX. LOC. GOV'T CODE § 112.051(a). Funds forfeited under asset forfeiture proceedings and distributed to county law enforcement agencies pursuant to a local agreement with the attorney representing the state are placed in "a special fund in the county treasury." TEX. CODE CRIM. PROC. art. 59.06(c)(3).

Finally, regarding inmate phone revenue, you do not indicate the source of such funds. Revenue deriving from prepaid phone cards are part of the sheriff's commissary proceeds, which may be held outside the county treasury, whereas revenue from pay telephones and telephone services are not, in which case they are paid to the county treasurer. Tex. Att'y Gen. Op. No. GA-0814 (2010) at 3-5. In summary, cash bail bond funds from no-filed cases, personal inmate funds, and revenue from prepaid phone cards may be maintained outside the county treasury by the county sheriff. Seized funds, forfeited funds, and revenue from pay telephones and telephone services must be held in the county treasury.

The characterization of funds as "county money" does not, however, determine whether they are subject to audit by the county auditor. This office has concluded on multiple occasions that the auditor is authorized to audit all funds held by a county officer in his official capacity "whether or not they are county funds." Tex. Att'y Gen. Op. Nos. GA-0704 (2009) at 2 (concerning accounts held by the sheriff, including commissary and forfeiture funds); JM-702 (1987) at 1 (concerning inmate trust account and jail commissary accounts held and operated by sheriff); H-1185 (1978) at 1 (concerning bail bond funds held in trust by sheriff). Assuming the accounts you identify contain funds held by the county sheriff in his official capacity, they are all subject to audit by the county auditor regardless of whether they are held in the county treasury.

Finally, you raise the issue of the auditor's countersignature. The county treasurer and the county depository may not pay a check or order for payment "unless it is countersigned by the county auditor to validate it as a proper and budgeted item of expenditure." TEX. LOC. GOV'T CODE § 113.043. The countersignature requirement is generally for "checks and warrants drawn against the county treasury." Tex. Att'y Gen. Op. No. JC-0195 (2000) at 5. This office has concluded that a sheriff's authority to maintain an account outside the county treasury may nonetheless be limited by the auditor's authority under Local Government Code 112.002(b) to impose regulations for the proper accounting of funds and other revenues, including non-county funds "that belong to ... a person ... for whose use or benefit the [county] officer holds or has received funds." Tex. Att'y Gen. Op. Nos. JC-0195 (2000) at 5-6 (concluding that such authority included requiring the auditor's signature on a trust account held by the sheriff outside the county treasury); DM-282 (1994) at 4-5 (concerning personal inmate funds); see also TEX. LOC. GOV'T CODE § 112.002(b). However, section 112.002(b), on which these conclusions were based, is applicable only in a county with a population 190,000 or more. See TEX. LOC. GOV'T CODE § 112.002(a). The corresponding authority to impose regulations given to an auditor in a county of less than 190,000 in section 112.001 extends only over county funds. See id. § 112.001; see also Tex. Att'y Gen. Op. No. JM-1263 (1990) at 2 (explaining that the auditor's authority in section 112.001 "plainly extends only over funds that 'belong to the county'"). Thus, in a county with a population of less than 190,000, unless a statute provides otherwise, a court would have a basis to conclude that there is no authority to require an auditor's countersignature on sheriff's funds properly held outside the county treasury.

SUMMARY

Although the county sheriff has limited authority to maintain certain funds outside of the county treasury, all funds held by the sheriff in his official capacity are subject to oversight and audit by the county auditor, whether or not they are county funds.

In a county with a population of less than 190,000, unless a statute provides otherwise, a court would have a basis to conclude that there is no authority to require an auditor's countersignature on sheriff's funds properly held outside the county treasury.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable C.R. Kit Bramblett, Hudspeth Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Oct. 28, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Through subsequent correspondence, you clarify that the county auditor's access to the accounts at issue has not actually been withheld and that the sheriff has agreed that all checks in the future will be signed by two people. See Letter from Honorable C.R. Kit Bramblett, Hudspeth Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Jan. 25, 2016) (on file with the Op. Comm.). Because your correspondence is informational in nature and does not withdraw any part of your original request, we have not narrowed the scope of our analysis.

[3] The population of Hudspeth County is 3,476. See U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, 2010 CENSUS OF POPULATION, http://quickfacts.census.gov/qfd/.