Can a Texas county auditor make the county attorney turn over receipts for spending from the hot check fund?

Texas AG Opinion JC-0084: County Auditor Receipts for the "Hot Check" Fund

Plain-English summary

When a county, district, or criminal district attorney collects and processes forged or dishonored checks ("hot checks"), the office collects a fee that goes into a special "hot check" fund. The Andrews County Auditor asked the Attorney General a narrow practical question: could he, as auditor, require the county attorney to provide receipts for purchases of goods and services from that fund, or for reimbursements out of it?

The opinion said yes. Article 102.007 of the Code of Criminal Procedure puts the hot check fund at the sole discretion of the prosecuting attorney, who alone decides how the money is spent (it may go only to salaries and expenses of the office, never to supplement the attorney's own salary). A line of prior opinions had confirmed the attorney's exclusive control over the fund and even held that the fund sits wholly outside the county budgeting process, so the county judge and auditor could not make the attorney submit a budget for it.

But exclusive control over spending is not the same as freedom from oversight. The opinion, leaning on Opinion DM-357, explained that the county attorney remains accountable for the fund's proper use: the auditor may oversee the books and records, must at least annually fully examine the attorney's accounts, and the attorney must administer the fund according to the accounting and control procedures the auditor prescribes. Because the auditor's request for receipts was an ordinary accounting and control procedure, the auditor could require them.

Currency note

This opinion was issued in 1999. 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

What is the "hot check" fund?
It is a special county fund built from a fee the county, district, or criminal district attorney collects for collecting and processing forged or dishonored checks. Under article 102.007 of the Code of Criminal Procedure, the money is administered by that attorney and may be used only for the salaries and expenses of the prosecutor's office.

If the attorney has sole discretion over the fund, how can the auditor demand receipts?
The opinion drew a line between control over spending and accountability for it. The attorney decides how to spend the fund, but the attorney is still accountable for proper use, and the auditor may impose ordinary accounting and control procedures, including requiring receipts.

Can the auditor make the prosecutor submit a budget for the fund?
No. The opinion noted that a prior opinion (DM-357) held the fund is wholly outside the county budgeting process, so the county judge and auditor could not require the attorney to submit a budget for it. Requiring receipts is different; it is a routine accounting control, not budget control.

Can the prosecutor use the fund to boost their own salary?
No. Article 102.007 expressly provides that in no event may the county, district, or criminal district attorney supplement his or her own salary from the fund.

Background and statutory framework

Article 102.007 of the Code of Criminal Procedure establishes the "hot check" fund and, in subsection (f), provides that the collected fees "shall be deposited in the county treasury in a special fund to be administered by the county attorney, district attorney, or criminal district attorney," that expenditures "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," and that "in no event may the county attorney, district attorney, or criminal district attorney supplement his or her own salary from this fund."

The opinion relied on a uniform line of prior opinions holding that the attorney has exclusive control over the fund's monies: DM-357 (1995), JM-1034 (1989), and JM-738 (1987). Opinion DM-357 concluded the fund was "wholly outside of the county budgeting process," so the county judge and auditor could not require a budget for it, but it also held that control was "not carte blanche": the county attorney is accountable for proper use, the auditor may oversee the books and records and must at least annually fully examine the attorney's accounts, the attorney must file necessary reports on receipts and expenditures, and the attorney must administer the fund in accordance with the auditor's accounting and control procedures. Applying that framework, and because the auditor's request for receipts was an ordinary accounting and control procedure, the opinion concluded the auditor could require them.

Citations

Statutory provisions:

• Tex. Code Crim. Proc. Ann. art. 102.007(f)

Attorney General opinions referenced: DM-357 (1995); JM-1034 (1989); JM-738 (1987).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0084
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0084.pdf

Original opinion text

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

OFFICE OF THE ATTORNEY GENERAL STATE OF TEXAS

JOHN CORNYN

July 21, 1999

Mr. R. R. Noble
Andrews County Auditor
County Courthouse, Room 109
Andrews, Texas 79714

Opinion No. JC-0084

Re: Whether a county auditor may require a county attorney to submit documentation for expenses incurred from the hot check fund (RQ-0014)

Dear Mr. Noble:

You have asked this office whether you as the county auditor may require the county attorney to provide receipts for purchases of goods and services from the "hot check" fund, or for reimbursement of such purchases therefrom. Given that, as it appears, the requiring of such receipts is an ordinary accounting and control procedure of your office, you may.

Article 102.007 of the Code of Criminal Procedure establishes the so-called "hot check" fund, a fund amassed by the collection of a fee for the collection and processing by the county, district, or criminal district attorney of forged or dishonored checks. Subsection (f) provides that these fees

shall be deposited in the county treasury in a special fund to be administered by the county attorney, district attorney, or criminal district 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, district attorney, or criminal district attorney supplement his or her own salary from this fund.

This language has been subjected to analysis in a number of opinions of this office, which have uniformly held that the attorney has exclusive control over monies in the fund. See, e.g., Tex. Att'y Gen. Op. Nos. DM-357 (1995), JM-1034 (1989), JM-738 (1987).

In Attorney General Opinion DM-357, we concluded that the "hot check" fund was "wholly outside of the county budgeting process," Tex. Att'y Gen. Op. No. DM-357 at 6, and that accordingly the county judge and county auditor were not authorized "to require the county attorney to submit a budget" for the fund. Id. at 6-7.

While DM-357 affirmed the attorney's control of the fund, it pointed out that that control was not carte blanche:

[T]he county attorney is accountable for the proper use of the fund. The auditor is authorized to oversee the county attorney's books and records regarding the fund. Moreover, the county auditor is required, at least annually, to "fully examine" the county attorney's accounts. The county attorney must file all necessary reports concerning the receipt and expenditure of monies to the fund (after the county attorney has received or expended the money). Finally, as we have suggested previously, the county attorney must administer the fund in accordance with any accounting and control procedures prescribed by the county auditor.

Id. at 8 (citations and footnotes omitted).

Your correspondence demonstrates that the request for receipts is an ordinary accounting and control procedure of your office. That being the case, you may require the production of such receipts in this connection.

SUMMARY

A county auditor may, as an ordinary accounting and control procedure, require the county attorney to provide receipts for purchases of goods and services from the "hot check" fund, or for reimbursement for such purchases therefrom.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by James E. Tourtelott
Assistant Attorney General