What could a Texas prosecutor pay from an article 53.08 hot-check fund, and did the commissioners court have to approve each expense?

Texas AG Opinion JM-313: Hot-Check Fund Expenses

Plain-English summary

JM-313 addressed a special county-treasury fund made from fees collected in bad-check matters and administered by the county attorney, district attorney, or criminal district attorney. The opinion stated that article 53.08 “authorizes the county attorney, district attorney, or criminal district attorney ... to collect fees from persons who have passed ‘bad checks’ and establishes a special fund in the county treasury in which the fees must be deposited.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

The prosecutor did not need commissioners-court approval before spending from the fund. The opinion's summary stated that the administering attorney “need not obtain the approval of the commissioners court prior to making expenditures from the fund.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

The fund was not limited to costs directly tied to bad-check collection or prosecution. JM-313 said: “Expenditures from the special fund are not limited to the costs which are related solely to the prosecution and collection of bad checks; they may be made for the whole prosecutor's office.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

That discretion remained limited to official salaries and expenses. The summary stated: “Outlays from the fund are, however, limited to defraying the salaries and expenses of the prosecutor's office.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

The official landing page records later treatment of the opinion under the heading “Subsequent Treatment” with the statement “Affirmed by JM-967 (1988).” Source: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0313

Currency note

This opinion was issued in 1985. 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

Did each expenditure require commissioners-court approval?

No. JM-313 stated: “The attorney administering the fund need not obtain the approval of the commissioners court prior to making expenditures from the fund.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

Could the fund support parts of the office not assigned to bad-check cases?

Yes. The opinion concluded: “Outlays may be made for the whole prosecutor's office.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

Could the prosecutor pay bonuses for work employees had already completed?

No. The opinion's summary said that “no bonuses, salary supplements, or allowances may be made which operate as additional compensation to an employee after the employee's services have been rendered.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

Could the fund reimburse an employee's legitimate work expense?

Yes. The summary stated: “An employee may, however, be reimbursed for legitimate expenses incurred in the performance of the employee's official duties.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

Could the fund buy office equipment or supplies?

Yes, when reasonably necessary for official duties. JM-313 said the attorney could pay for “office equipment and supplies if they are reasonably necessary to the performance of the official duties of the prosecutor's office.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

Could the fund pay for grand-jury meals or framed photographs?

No. JM-313 stated that these items “are clearly not expenses of the prosecuting attorney's office” and concluded that “the attorney lacks the authority to make such expenditures.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

Did the prosecutor have to spend the entire balance each fiscal year?

No. The opinion stated: “A positive balance may be carried from one fiscal year to the next,” while remaining limited to office expenses. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

Background and statutory framework

Article 53.08(e) placed expenditures within the attorney's “sole discretion,” but permitted the money to “be used only to defray the salaries and expenses of the prosecutor's office.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

JM-313 treated the money as public funds despite the prosecutor's control. Quoting an earlier opinion, it stated that article 53.08 “does not convert them into non-public funds” and that the funds “are collected for the use of the state and county.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

The prosecutor's discretion therefore remained subject to other laws governing county money. JM-313 stated: “The attorney must administer the fund within the confines of laws applicable to the use of county funds.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

Citations and references

• Code of Criminal Procedure article 53.08
• Article 332a, V.T.C.S.
• Texas Constitution article III, sections 52 and 53
• Attorney General Opinions MW-188, MW-439, and MW-584
• Attorney General Opinion JM-967 (1988), affirming JM-313

Source for JM-313: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

Source for subsequent-treatment notation: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0313

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0313
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0313.pdf

Original opinion text

Full opinion text unavailable from the official source. See the linked PDF or landing page above for the complete text.