Must a Texas sheriff give the county treasurer bank statements for forfeiture and commissary accounts?

TX AG Opinion GA-0704: Must a sheriff show the treasurer his forfeiture and commissary accounts?

Plain-English summary

The Delta County Attorney explained that the county treasurer asked the sheriff for copies of his bank statements, including forfeiture and commissary accounts. The sheriff refused, arguing that neither forfeiture funds nor commissary funds are county money, so the statements were not available to the treasurer. The question was whether the sheriff must provide the treasurer with bank statements of his accounts.

Delta County has no county auditor, so Local Government Code section 115.901(a) puts the audit duty on the county treasurer. That statute directs the treasurer to examine the accounts, dockets, and records of the sheriff to determine whether any money belonging to the county and in the officer's possession has not been accounted for and paid over according to law. The Attorney General noted that the statute does not limit the treasurer's authority to accounts holding county funds. Unlike another statute that ties the county auditor's records to county accounts, section 115.901 has no such limit, which indicates the Legislature meant the treasurer to examine all accounts the sheriff holds in his official capacity.

This access lets the treasurer confirm the sheriff's accounts are maintained correctly, including whether county funds have been commingled with special funds. The opinion noted this reading is consistent with prior opinions that a county auditor may audit all funds an officer holds officially, whether or not they are county funds. The opinion concluded that section 115.901 requires the Delta County treasurer to examine the sheriff's accounts, including commissary and forfeiture funds, and the sheriff must give the treasurer access to the bank statements for those accounts.

Currency note

This opinion was issued in 2009. 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 statutes governing forfeiture funds, commissary funds, and county treasurer audits may have changed since 2009. Confirm the current law before relying on this opinion.

Who this opinion affected (as of 2009)

County treasurers in counties without a county auditor: The opinion concluded section 115.901 required them to examine all accounts the sheriff holds officially, not just county-fund accounts.

Sheriffs: The opinion held a sheriff must give the treasurer access to bank statements for his official accounts, including forfeiture and commissary funds.

Counties auditing special funds: The opinion confirmed the audit reaches special funds so the treasurer can check for commingling with county money.

Common questions

Can the treasurer see the sheriff's forfeiture and commissary accounts?
Yes, the opinion said. Section 115.901 lets the treasurer (where there is no county auditor) examine all the sheriff's official accounts, including those funds.

Doesn't it matter that those aren't county money?
No. The opinion noted the statute is not limited to county-fund accounts, so it reaches accounts the sheriff holds in his official capacity even if the funds are not county money.

Why can the treasurer look at non-county funds?
The opinion explained the access lets the treasurer verify the accounts are kept correctly, such as checking whether county funds were commingled with special funds.

Does the sheriff have to hand over bank statements?
Yes. The opinion concluded the sheriff must give the treasurer access to the bank statements for those accounts.

Background and statutory framework

The sheriff argued that forfeiture funds are state funds and commissary proceeds may be used only for inmates or commissary operations (Tex. Code Crim. Proc. Ann. art. 59.06(a), (c)(3) (Vernon Supp. 2008); Tex. Loc. Gov't Code Ann. § 351.0415 (Vernon 2005)). But because Delta County has no auditor, section 115.901(a) directs the treasurer to examine the sheriff's accounts, dockets, and records for county money not accounted for (Tex. Loc. Gov't Code Ann. § 115.901(a) (Vernon 2008)). Unlike the county-account-focused records duty in section 112.007 (id. § 112.007 (Vernon 2008)), section 115.901 is not limited to county funds, so it reaches all accounts held in the sheriff's official capacity, enabling a check for commingling (Mills v. State, 941 S.W.2d 204, 206-07 (Tex. App.-Corpus Christi 1996, pet. ref'd)). This matches prior opinions allowing a county auditor to audit all funds an officer holds officially (Tex. Att'y Gen. Op. Nos. JM-702 (1987), H-1185 (1978) (construing the predecessor of section 115.001)).

Citations

Statutes:

• Tex. Code Crim. Proc. Ann. art. 59.06(a), (c)(3) (Vernon Supp. 2008)
• Tex. Loc. Gov't Code Ann. §§ 351.0415 (Vernon 2005), 115.901(a), 112.007 (Vernon 2008), 115.001

Cases:

• Mills v. State, 941 S.W.2d 204, 206-07 (Tex. App.-Corpus Christi 1996, pet. ref'd)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0704
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0704.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

April 7, 2009

The Honorable H. Michael Bartley
Delta County Attorney
Post Office Box 462
Cooper, Texas 75432

Opinion No. GA-0704

Re: Whether a sheriff must provide information about funds in his custody to the county treasurer (RQ-0753-GA)

Dear Mr. Bartley:

You state that the Delta County treasurer requested the sheriff to furnish her with copies of the bank statements for his accounts, including forfeiture and commissary accounts.[1] The sheriff replied that neither forfeitures to the sheriff's office nor commissary funds were county money, and thus the statements were not available to the treasurer. See Request Letter at 2; see also TEX. CODE CRIM. PROC. ANN. art. 59.06(a), (c)(3) (Vernon Supp. 2008) (forfeiture funds are state funds); TEX. LOC. GOV'T CODE ANN. § 351.0415 (Vernon 2005) (commissary proceeds may be used only for inmates' benefit or commissary operations). You ask whether the sheriff of Delta County is required to provide the county treasurer with bank statements of his accounts. See Request Letter at 2.

Local Government Code section 115.901(a) requires the Delta County treasurer to examine certain records held by county officers.[2] It provides as follows:

The county auditor or, in a county that does not have the office of county auditor, the county treasurer, shall 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.

TEX. LOC. GOV'T CODE ANN. § 115.901(a) (Vernon 2008) (emphasis added).

Section 115.901 does not expressly limit the treasurer's audit authority to accounts relating to county funds held by the sheriff. Compare id. § 115.901, with id. § 112.007 (county auditor shall keep records showing all transactions of the county relating to county accounts, contracts, indebtedness and county receipts and disbursements). The lack of such limitation indicates that the Legislature intended the county treasurer to examine all accounts held by the sheriff in his official capacity. Such access enables the treasurer to determine whether the sheriff's accounts have been maintained correctly, including, for example, whether county funds have been commingled with special funds. See generally Mills v. State, 941 S.W.2d 204, 206-07 (Tex. App.-Corpus Christi 1996, pet. ref'd) (investigation revealed shortages in commissary fund). Further, this construction of section 115.901 is consistent with previous determinations by this office that a county auditor is authorized under similar statutes to audit all funds held by an officer in his official capacity, whether or not they are county funds. See Tex. Att'y Gen. Op. No. JM-702 (1987) at 1-2, H-1185 (1978) at 1 (construing predecessor of Local Government Code section 115.001, authorizing auditor to examine any county officer's books, accounts, vouchers and other records). As a result, we conclude that section 115.901 requires the county treasurer of Delta County to examine the sheriff's accounts, including the accounts of commissary and forfeiture funds held by the sheriff, and the sheriff must provide the treasurer with access to the bank statements for these accounts.

SUMMARY

Pursuant to Local Government Code section 115.901, the county treasurer of Delta County is required to examine the accounts held by the county sheriff, including accounts containing forfeiture and commissary funds, and the sheriff must provide the treasurer with access to bank statements for such accounts.

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee

[Footnote 1: Request Letter at 1-2 (available at http://www.texasattorneygeneral.gov). The treasurer also asked for statements for grant funds, but the sheriff stated that he did not handle these funds. See id. at 2.]

[Footnote 2: Delta County does not have a county auditor. See id. at 1.]