What can a Texas county attorney spend hot check fund money on?

TX AG Opinion GA-0475: Can a county attorney's hot check fund pay for a children's book?

Plain-English summary

Gillespie County Attorney Tamara Y.S. Keener asked whether she could spend $782 from her office's hot check fund to sponsor a children's book. The book, My Favorite Book, was described as a publication about citizenship and how to be your best, which a company planned to hand out free to every first-grade student in the county. The county attorney wanted the Attorney General to declare, as a matter of law, that the expense was authorized.

The hot check fund comes from a fee a county attorney may collect when the office collects and processes a bad check. By statute, the fees go into a special county fund administered by the county attorney, expenditures are "at the sole discretion of the attorney," and the money "may be used only to defray the salaries and expenses of the prosecutor's office." The attorney can never use it to supplement his or her own salary. So the statute sets two clear limits: the spending is discretionary with the attorney, and it must be for the salaries and expenses of the office.

Whether a particular expense is allowed turns on two things: whether it relates to the official business of the office, and whether any constitutional or statutory provision forbids it. The opinion found no provision that bans spending on children's books as a general matter, so it focused on the official-business question. County attorneys have varied duties set by the legislature, from prosecuting cases to advising county and precinct officials, and they hold broad control over the tasks state law assigns them. But whether this specific book was connected to the office's official business required applying facts to law, and the opinion process cannot resolve fact questions. The Attorney General therefore declined to make the call. That decision belonged to the county attorney as the official with discretion over the fund, subject to a court reviewing it for abuse of discretion.

Currency note

This opinion was issued in 2006. 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.

Article 102.007 of the Code of Criminal Procedure has been amended since 2006. Anyone deciding how hot check fund money may be spent today should check the current statute rather than relying on this opinion.

Who this opinion affected (as of 2006)

County attorneys: The opinion confirmed that hot check fund money was theirs to spend at their sole discretion, but only to defray the salaries and expenses of the prosecutor's office, and never to boost their own salary. It also told them that deciding whether a given expense fit the office's official business was their own first-instance call.

County commissioners and auditors: The opinion clarified that the Attorney General would not pre-approve a specific hot check fund expenditure; the decision rested with the county attorney and could be challenged in court only for abuse of discretion.

Common questions

What can a county attorney spend hot check fund money on?
Only on the salaries and expenses of the prosecutor's office, at the attorney's sole discretion. The opinion stressed the statute also bars using the fund to supplement the attorney's own salary.

Could the Gillespie County Attorney sponsor the children's book from the fund?
The opinion did not answer yes or no. It said whether the book related to the office's official business was a fact question it could not resolve, and that the county attorney had to make that determination first.

Who decides whether a particular expense is allowed?
The county attorney, as the official with discretionary authority over the fund. The opinion noted a court could review that decision, but only for abuse of discretion, and would not simply substitute its own judgment.

Is there any spending the statute flatly prohibits?
Yes. The opinion pointed to the statute's express bar on using the fund to supplement the county attorney's own salary.

Background and statutory framework

Code of Criminal Procedure article 102.007 lets a county attorney collect a fee for collecting and processing a bad check, and provides that the fees are deposited in a special county fund administered by the county attorney; expenditures are "at the sole discretion of the attorney" and "may be used only to defray the salaries and expenses of the prosecutor's office," but the attorney may never supplement his or her own salary from the fund (Tex. Code Crim. Proc. Ann. art. 102.007(a), (f) (Vernon Supp. 2006)). Whether a given expenditure is authorized depends on whether it relates to the official business of the office and whether any constitutional or statutory provision prohibits it (Tex. Att'y Gen. Op. No. JM-0313 (1985)).

County attorneys represent the State in the district and inferior courts of their counties, with duties regulated by the legislature (Tex. Const. art. V, § 21). Those duties range from prosecuting, with the charge "not to convict, but to see that justice is done" (Tex. Code Crim. Proc. Ann. art. 2.01 (Vernon 2005); Ex parte Hopson, 688 S.W.2d 545, 549 (Tex. Crim. App. 1985)), to advising county and precinct officials (Tex. Gov't Code Ann. § 41.007 (Vernon 2004)). As county officials, they hold broad control over the tasks state statute entrusts to them (Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980)). Because whether the book connected to the office's official business required applying facts to law, the opinion declined to resolve it (Tex. Att'y Gen. Op. No. GA-0430 (2006)), leaving the decision to the county attorney's discretion subject to review for abuse of discretion (Barrington v. Cokinos, 338 S.W.2d 133, 142 (Tex. 1960)).

Citations

Statutes:

• Tex. Code Crim. Proc. Ann. arts. 102.007(a), (f) (Vernon Supp. 2006), 2.01 (Vernon 2005)
• Tex. Const. art. V, § 21
• Tex. Gov't Code Ann. § 41.007 (Vernon 2004)

Cases:

• Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980)
• Barrington v. Cokinos, 338 S.W.2d 133, 142 (Tex. 1960)
• Ex parte Hopson, 688 S.W.2d 545, 549 (Tex. Crim. App. 1985)
• Tex. Att'y Gen. Op. Nos. JM-0313 (1985), GA-0430 (2006)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0475
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0475.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

October 30, 2006

The Honorable Tamara Y.S. Keener
Gillespie County Attorney
125 West Main, Suite L41
Fredericksburg, Texas 78624

Opinion No. GA-0475

Re: Gillespie county attorney's authority to use money in the hot check fund to sponsor a children's book (RQ-0473-GA)

Dear Ms. Keener:

You ask about your authority to spend money from the hot check fund to sponsor a children's book.

You inform us that the Ambassador Company has published a children's book entitled My Favorite Book, which is a book on "citizenship and how to be your best" that Ambassador is to distribute free of charge to all first grade students in Gillespie County. Brief, supra note 1, at 2. You question whether your office can spend $782 from its hot check fund to sponsor the book. See id.; see also Request Letter, supra note 1, at 1.

The hot check fund is established by Code of Criminal Procedure article 102.007, which provides that a county attorney "may collect a fee if [the attorney's] office collects and processes a check or similar sight order" issued or passed in violation of certain Penal Code provisions. TEX. CODE CRIM. PROC. ANN. art. 102.007(a) (Vernon Supp. 2006). Fees collected under this authority

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.

Id. art. 102.007(f) (emphasis added). The plain language is clear that "[e]xpenditures from this fund shall be at the sole discretion of the attorney." Id. The provision's plain language also limits expenditures to only those that "defray the salaries and expenses of the prosecutor's office." Id.

Whether a particular expenditure is authorized depends on two factors: (1) whether the expenditure is related to the official business of the office, and (2) whether any constitutional or statutory provisions prohibit the expenditure. Tex. Att'y Gen. Op. No. JM-0313 (1985) at 7. Because we find no constitutional or statutory provision that expressly prohibits as a general matter an expenditure for children's books, we focus our discussion on the first factor.

As to the first factor, county attorneys are generally responsible under the Texas Constitution to "represent the State in all cases in the District and inferior courts in their representative counties." TEX. CONST. art. V, § 21. But their duties-that is, those responsibilities that constitute a county attorney's official business-are to "be regulated by the Legislature" and are thus tied to statutes. Id. This business is varied. For example, on the one hand county attorneys are litigators, prosecutors required by the Code of Criminal Procedure "not to convict, but to see that justice is done." TEX. CODE CRIM. PROC. ANN. art. 2.01 (Vernon 2005). On the other hand, county attorneys are researchers and writers required to render legal advice to county and precinct officials within the attorney's county. TEX. GOV'T CODE ANN. § 41.007 (Vernon 2004). As county officials, moreover, county attorneys hold "virtually absolute sway over the particular tasks or areas of responsibility entrusted to [them] by state statute." Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980).

You ask that we determine as a matter of law that you are authorized to spend $782 from the hot check fund to sponsor a children's book. See Brief, supra note 1, at 2. We are unable to make that determination. Whether the book is connected to your official business requires the application of facts to law. We cannot resolve fact questions in the opinion process. See Tex. Att'y Gen. Op. No. GA-0430 (2006) at 3 n.4. It is instead your duty as the official with discretionary authority over the funds to make that determination first, subject to judicial review for abuse of that discretion. See Barrington v. Cokinos, 338 S.W.2d 133, 142 (Tex. 1960) ("[A] court has no right to substitute its judgment and discretion for the judgment and discretion of the governing body upon whom the law visits the primary power and duty to act.").

SUMMARY

The Gillespie County Attorney may use money in the attorney's hot check fund to sponsor a children's book if the book is related to the attorney's official business and no other law prohibits such an expenditure.

Very truly yours,

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Daniel C. Bradford
Assistant Attorney General, Opinion Committee

Footnotes

1. See Letter and attached Memorandum Brief from Honorable Tamara Y.S. Keener, Gillespie County Attorney, to Honorable Greg Abbott, Attorney General of Texas (Mar. 30, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter and Brief respectively].

2. See Ex parte Hopson, 688 S.W.2d 545, 549 (Tex. Crim. App. 1985) (applying to county attorneys the admonishment to further justice in Code of Criminal Procedure article 2.01).