Can a county attorney or the commissioners court move 'hot check' fee money over to the district attorney's office?

Texas AG Opinion JM-1034: Who Controls a County's "Hot Check" Fund?

Plain-English summary

When someone passes a bad check in Texas, the prosecutor's office can collect a fee for handling the collection. Those fees pile up in what county offices informally call the "hot check" fund. This opinion answers a turf question about that fund: once the county attorney has collected the fees, who gets to decide what happens to the money, and can it be shifted to a different office?

The dispute came out of Comal County. The county auditor and the county attorney disagreed over whether the county attorney could move money from the hot check account to the district attorney's office without the commissioners court signing off. The auditor asked the Attorney General to sort it out.

The answer turned on the exact wording of the statute. Article 102.007(e) of the Code of Criminal Procedure says the fees go into a special fund in the county treasury, administered by the attorney who collected them, and that spending from the fund is "at the sole discretion of the attorney." It also caps what the money can be used for: the salaries and expenses of that prosecutor's office, and nothing else. The one flat prohibition is that the collecting attorney cannot use the fund to pad his own salary.

Two things follow from that "sole discretion" language, and the Attorney General had already worked through both in earlier opinions. First, the commissioners court is out of the picture. It does not get to approve or veto spending from the fund, because control sits entirely with the prosecutor who collected the fees. Second, and this was the auditor's real question, the money is welded to the office that generated it. The statute limits spending to the expenses of that office, and it says nothing about moving the money to another office. So the county attorney cannot hand its hot check money to the district attorney, and the commissioners court cannot order that transfer either. If there is more money in the fund than the office reasonably needs, the surplus just stays put, waiting for the Legislature to decide what to do with it. The county attorney is not required to sweep the excess into the county general fund.

One related detail: interest is treated differently from the fees themselves. Under a separate opinion (JM-632), interest earned on the hot check money has to be deposited in the county's general revenue, even though the underlying fees do not.

Currency note

This opinion was issued in 1989. 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 Code of Criminal Procedure provisions on hot check collection fees have been amended and renumbered since 1989, and some of the cross-referenced statutes cited here (for example, article 1709, V.T.C.S.) were later recodified. Anyone dealing with a present-day prosecutor's fee fund should check the current version of the statute rather than rely on the 1989 article numbers used in this opinion.

Who this opinion affected (as of 1989)

County attorneys and district attorneys: The opinion confirmed that each prosecutor controls the hot check fund generated by his own office and cannot pass that money to a different prosecutor's office, even a related one.

County auditors and commissioners courts: The opinion drew a clear line: the commissioners court does not control spending from the fund and cannot authorize (or block) a transfer between offices, though the fund is still subject to the auditor's ordinary accounting and reporting rules for county money.

Anyone watching how prosecutor fee money is spent: The opinion reinforced that hot check fees can be used only for the collecting office's salaries and expenses, that the collecting attorney cannot boost his own pay from the fund, and that any surplus stays in the fund pending direction from the Legislature.

Common questions

Can the commissioners court control how hot check fund money is spent?
No. The Attorney General concluded that spending from the fund is at the sole discretion of the collecting attorney and that the commissioners court has no control over these funds.

Can the county attorney move the money to the district attorney's office?
No. The Attorney General concluded that article 102.007 makes no provision for transferring the funds between the offices of county and district attorney or to any other office; the money is limited to defraying the expenses of the office that generated it.

What can the hot check fund be spent on?
Only the salaries and expenses of the prosecutor's office that collected the fees. The collecting attorney may not use the fund to supplement his own salary.

What happens to leftover money in the fund?
Any surplus must remain in that officer's special fund, subject to the Legislature's further direction for disposition. The attorney is not required to turn the excess over to the county general fund.

Is interest on the fund treated the same as the fees?
No. Under Attorney General Opinion JM-632 (1987), interest earned on the deposited hot check money must be deposited in the county's general revenue funds.

Background and statutory framework

The Comal County Auditor asked whether funds collected under article 102.007 of the Code of Criminal Procedure by the county attorney fall under the control of the commissioners court when moving them from one official to another. (A county auditor normally must route an opinion request through the county or district attorney under section 41.007 of the Government Code, but the Attorney General accepts a direct request from an auditor when the auditor believes the county attorney's position conflicts with prior AG opinions.) The auditor advised that his office and the county attorney disagreed over whether the county attorney could transfer money out of the account to the district attorney's office without the commissioners court's permission.

Article 102.007(e) provides that fees collected under the article are deposited in the county treasury in a special fund administered by the county attorney, district attorney, or criminal district attorney; that expenditures from the fund are at the sole discretion of the attorney; and that the money may be used only to defray the salaries and expenses of the prosecutor's office, with the collecting attorney barred from supplementing his own salary.

The Attorney General relied on a line of prior opinions construing this fund. Attorney General Opinion JM-967 (1988) addressed whether earlier opinions on the hot check fund conflicted, and found none: JM-313 (1985) had said that although expenditures from the fund are not subject to commissioners court approval, the fund is generally subject to statutes regulating the handling of county money (citing MW-188 (1980) on the auditor's accounting and control procedures and MW-584 (1982) on reporting requirements). JM-967 adhered to the rationale of MW-439 (1982) that subjecting the fund's expenditures to competitive bidding would place ultimate control in the commissioners court, letting it interfere with the designated officials' exclusive right to administer the fund, contrary to the statute's "sole discretion" language. JM-313 also explained that expenditures are limited to the office's salaries and expenses, that the attorney may spend no more than reasonably necessary, and that any surplus must remain in the fund subject to the Legislature's further direction (it need not be paid over to the county general fund), with the attorney still required to comply with reporting statutes.

Applying that framework, the Attorney General concluded that although the term "prosecutor" can mean a county attorney, district attorney, or criminal district attorney (see Gov't Code § 41.101), those are separate and distinct offices. Article 102.007 limits expenditures to the office that generated the fund and makes no provision for transferring funds between the offices of county and district attorney or any other office. Any surplus must remain in that officer's special fund subject to the Legislature's further direction. The AG also noted that interest earned on the fund is treated differently: under JM-632 (1987), interest earned on the deposited hot check money must be deposited in the county's general revenue funds under article 1709, V.T.C.S. (now section 113.021(c) of the Local Government Code).

Citations

Statutory authority:

• Code Crim. Proc. art. 102.007(e) (special fund administered by the collecting attorney; sole-discretion spending limited to office salaries and expenses; no self-salary supplement)
• Code Crim. Proc. art. 102.007 (hot check collection fees generally; predecessor art. 53.08)
• Gov't Code § 41.007 (county auditor routing of opinion requests)
• Gov't Code § 41.101 (definition of "prosecuting attorney")
• art. 1709, V.T.C.S., now Local Government Code § 113.021(c) (interest earned on the fund goes to county general revenue)

Prior Attorney General opinions:

• JM-967 (1988) (no conflict among the hot check fund opinions; competitive bidding would wrongly give the commissioners court control)
• JM-313 (1985) (expenditures not subject to commissioners court approval; limited to office expenses; surplus stays in fund)
• JM-632 (1987) (interest on the fund must go to county general revenue)
• MW-188 (1980); MW-439 (1982); MW-584 (1982) (auditor accounting/control, bidding, and reporting)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1034
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1034.pdf

Original opinion text

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

March 29, 1989

Mr. H. Bate Bond
County Auditor
Comal County
150 N. Seguin, Suite 201
New Braunfels, Texas 78130

Opinion No. JM-1034

Re: Authority to transfer hot check fund from county attorney to district attorney (RQ-1630)

Dear Mr. Bond:

Your questions[1] relate to fees collected by the county attorney under article 102.007 of the Code of Criminal Procedure. Article 102.007 provides for the collection by a county attorney, district attorney, or criminal district attorney of a fee in connection with the collection or processing by his office of a check if the check had been issued or passed in a manner constituting one of the offenses set forth in that article.

You ask whether the funds collected under article 102.007 by the county attorney "fall under the control of the Commissioners Court when moving them from one official to another."

You advise that there has been a disagreement between your office and the county attorney as to whether the county attorney may transfer funds out of this account to the office of the district attorney without the permission of the commissioners court.

[1] A county auditor is required to submit any opinion request initially to his county or district attorney pursuant to section 41.007 of the Government Code. However, this office will accept an opinion request directly from a county auditor in an instance where the auditor's office disagrees with the county attorney and believes that the county attorney's position is in conflict with prior opinions of the Attorney General's Office. You advise that such a situation prompted your request.

Subdivision (e) of article 102.007 provides with respect to the disposition of such fees as follows:

Fees collected under this article 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 own salary from this fund. (Emphasis added.)

Code Crim. Proc. art. 102.007(e).

In Attorney General Opinion JM-967 (1988), the matter of whether certain prior opinions of this office relative to the management of the "hot check" funds were in conflict was addressed as follows:

Attorney General Opinion JM-313 [1985] simply pointed out that although expenditures from the 'hot check' fund were not subject to commissioners court approval, the fund was generally subject to statutes regulating the handling of county moneys, citing Attorney General Opinions MW-188 (1980) ('hot check' fund subject to county auditor's power to prescribe accounting and control procedures for making deposits and disbursements), and MW-584 (1982) ('hot check' fund subject to various reporting requirements applicable to county funds).

We find no conflict between JM-313 and MW-439 [1982]. We adhere to the rationale of MW-439 that to subject 'hot check' fund expenditures to the competitive bidding requirements would place ultimate control of these expenditures in the commissioners court which 'could, for example, refuse to accept any or all bids in a particular instance and thus interfere with the exclusive right of the designated individuals to administer the fund and to determine when, for what purposes, and under what circumstances expenditures will be made from it.' Attorney General Opinion MW-439 (1982), at 6. Such a result would be contrary to the express provision of article 102.007 . . . that '[e]xpenditures from this fund shall be at the sole discretion of the attorney.' (Emphasis added.)

Limitations on expenditures from the special fund under article 53.08 of the Code of Criminal Procedure (now article 102.007) and the matter of the disposition of any surplus were discussed in Attorney General Opinion JM-313, as follows:

Expenditures from the special fund are, however, limited to defraying 'the salaries and expenses of the prosecutor's office.' In other words, all expenditures from the fund must relate to the official business of the prosecutor's office. There is no requirement that the attorney spend the entire fund; rather, the attorney may spend no more than the amount which is reasonably necessary to defray the salaries and expenses of the office. Any surplus must remain in the fund, subject to the legislature's further direction for disposition. A positive balance may be carried from one fiscal year to the next but such funds remain subject to the limitation to office expenses. Article 53.08 does not require the attorney to pay any excess in the special fund over to the general fund of the county. The attorney must, however, comply with various reporting statutes. See Attorney General Opinion MW-584 (1982) (and statutes cited therein). (Emphasis added.)

The attorney has exclusive control of the funds; however, he may expend no more than is reasonably necessary to defray the salaries and expenses of the office. While the commissioners court has no control of these funds it should be noted that any interest earned from these funds is treated differently. In Attorney General Opinion JM-632 (1987) it was concluded that any interest earned by the deposit of money received pursuant to the so-called "hot check" fund, must be deposited in the general revenue funds of the respective counties pursuant to article 1709, V.T.C.S. (now section 113.021(c) of the Local Government Code).

While the term "prosecutor" may mean county attorney, district attorney, or criminal district attorney[2] there can be no question but that they are separate and distinct offices. Section 102.007 and opinions of this office construing this statute provide that expenditure of these funds is limited to defraying the salaries and expenses of the office generating the fund rather than for prosecutors' offices generally. Section 102.007 makes no provision for transfer of the funds between the offices of county and district attorney or any other office. Any surplus must remain in that officer's special fund subject to the legislature's further direction for disposition. Attorney General Opinion JM-313.

[2] Section 41.101 of the Government Code provides that "In this subchapter, 'prosecuting attorney' means a county attorney, district attorney, or criminal district attorney."

SUMMARY

Expenditures from a county attorney's "hot check" fund created pursuant to article 102.007 of the Code of Criminal Procedure may be made at the sole discretion of the county attorney to defray salaries and expenses of that office (except that such official may not supplement his own salary). Neither the county attorney nor the commissioners court is authorized to transfer funds from such account to the district attorney or any other official.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General