Could a Texas sheriff use campaign or officeholder contributions to replace or reimburse a cash shortage in an official account?

Texas AG Opinion JM-856: Sheriff Campaign Funds for Shortage

Plain-English summary

The Harris County attorney asked whether the sheriff could use campaign or officeholder contributions to replace a $1,500 shortage in the bonding section's official account. The sheriff had already used personal funds after the county auditor requested that he account for the missing cash.

Election Code section 253.035 prohibited personal use of political contributions accepted on or after September 1, 1983. It excluded ordinary and necessary expenses connected with a public officeholder's duties and allowed reimbursement when the original personal payment served an officeholder purpose.

The Attorney General concluded that the shortage was tied to the sheriff's official responsibilities. The Code of Criminal Procedure required receipts for cash bonds and records of bail transactions. The Local Government Code required the sheriff to execute an official bond, faithfully perform statutory duties, account for collected funds, and answer for deputies' official acts.

Because the sheriff and his sureties could be liable for a shortage caused by a deputy, replacing the missing official funds was connected to the performance of the office. The opinion treated proper accounting for those funds as an ordinary and necessary office expense.

The sheriff therefore could have paid the shortage directly from political contributions or reimbursed himself from those funds after using personal money. On the facts presented, the payment was not a prohibited conversion to personal use.

Currency note

This opinion was issued in 1988. 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 the opinion treat the shortage as the sheriff's personal expense?

No. It treated replacement of missing official funds as an ordinary and necessary expense connected with the sheriff's duties.

Did it matter that a deputy, rather than the sheriff, caused the shortage?

No. The opinion said the sheriff was statutorily responsible for deputies' official acts.

Could the sheriff reimburse himself after first using personal funds?

Yes. Section 253.035(h) allowed reimbursement when the original payment served a campaign or officeholder purpose.

Why was the sheriff potentially liable for the account?

His official bond covered faithful performance and accounting for funds, and the opinion said the sheriff and his sureties could be sued for a shortage.

Did the opinion address political contributions accepted before September 1, 1983?

No. A footnote stated that the analysis assumed the funds had been accepted on or after that date, when the personal-use restriction began.

Background and statutory framework

Election Code section 253.035 barred conversion of political contributions to personal use. The statute defined personal use as an individual or family purpose unconnected with campaign or officeholder duties, while excluding ordinary and necessary officeholder expenses.

Code of Criminal Procedure article 17.02 required the receiving officer to issue a receipt for cash deposited in lieu of sureties and refund it when the defendant complied with the bond and the court ordered repayment. Article 17.20 authorized a sheriff to take bail in misdemeanor cases, and article 17.39 required detailed bail records.

Local Government Code § 85.001 required the sheriff to execute a bond conditioned on faithful performance and accounting for specified funds. Local Government Code § 85.003(d) made the sheriff responsible for deputies' official acts and gave the sheriff remedies against a deputy and the deputy's sureties.

Attorney General Opinion H-751 had concluded that a sheriff and bonding company could be liable for shortages in fines and cash bonds collected by deputies. JM-517 and H-360 likewise addressed official liability for shortages or disappearance of public money.

Citations

Statutory materials:

• Election Code section 253.035(a), (d), (f), and (h)
• Code of Criminal Procedure articles 17.02, 17.20, and 17.39
• Local Government Code sections 85.001 and 85.003(d)

Prior Attorney General materials referenced: H-360 (1974), H-751 (1975), and JM-517 (1986).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-856
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0856.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected, but minor errors may remain; the linked PDF is authoritative.

THE ATTORNEY GENERAL
OF TEXAS

February 15, 1988

Honorable Mike Driscoll Opinion No. JM-856
Harris County Attorney
1001 Preston, Suite 634 Re: Whether a sheriff may use
Houston, Texas 77002 his officeholder or campaign
funds to pay or reimburse cash
shortages in his official
account (RQ-1070)

Dear Mr. Driscoll:

You state that a cash shortage of $1,500 occurred in the bonding section of the Harris County Sheriff's office. You also state that at the request of the county auditor to account for the shortage, the sheriff used his personal funds to replace the missing cash. You ask whether the sheriff may use his campaign or officeholder contributions to reimburse himself for this use of his personal funds or whether his political contributions could have been used originally to replace the missing cash.

Title 15 of the Texas Election Code regulates political funds and campaigns. Restrictions on political contributions and expenditures are found in chapter 253 of the Election Code. Section 253.035(a) of the Election Code prohibits the conversion to personal use of political contributions accepted on or after September 1, 1983.¹ "Personal use" is defined by Election Code section 253.035(d) as follows:

(d) In this section, 'personal use' means use that primarily furthers individual or family purposes not connected with the performance of duties or activities as a candidate for or holder of a public office. The term does not include:

(1) payments made to defray ordinary and necessary expenses incurred in connection with activities as a candidate or in connection with the performance of duties or activities as a public officeholder, including payment of rent, interest, utility, and other reasonable housing or household expenses incurred in maintaining a residence in Travis County by members of the legislature who do not ordinarily reside in Travis County; or

(2) payments of federal income taxes due on interest and other income earned on political contributions. (Emphasis added.)

The reimbursement of personal funds from political contributions is permissible, if the original disbursement was for campaign or officeholder purposes. Election Code § 253.035(h).² The sheriff's use of political funds to replace a cash shortage in an official account or to reimburse himself for such a payment is prohibited if the disbursement of political funds is considered a personal use. A civil sanction is imposed by Election Code section 253.035(f) for a conversion in violation of the personal use restriction.

Before we can determine whether the payment or reimbursement from political contributions is permissible, we must establish the sheriff's statutory duties in regard to the money in his official account. Article 17.02 of the Code of Criminal Procedure defines bail bond as follows:

A 'bail bond' is a written undertaking entered into by the defendant and his sureties for the appearance of the principal therein before some court or magistrate to answer a criminal accusation; provided, however, that the defendant upon execution of such bail bond may deposit with the custodian of funds of the court in which the prosecution is pending current money of the United States in the amount of the bond in lieu of having sureties signing the same. Any cash funds deposited under this Article shall be receipted for by the officer receiving the same and shall be refunded to the defendant if and when the defendant complies with the conditions of his bond, and upon order of the court. (Emphasis added.)

A sheriff's authority to take a bail bond in a misdemeanor case is found in article 17.20 of the Code of Criminal Procedure, which states:

The sheriff, or other peace officer, in cases of misdemeanor, may, whether during the term of the court or in vacation, where he has a defendant in custody, take of the defendant a bail bond.

In addition to the issuance of receipts required by the Code of Criminal Procedure, article 17.02, supra, the sheriff may be required by article 17.39 of the Code of Criminal Procedure to keep a detailed record of each bail transaction. That article provides:

A magistrate or other officer who sets the amount of bail or who takes bail shall record in a well-bound book the name of the person whose appearance the bail secures, the amount of bail, the date bail is set, the magistrate or officer who sets bail, the offense or other cause for which the appearance is secured, the magistrate or other officer who takes bail, the date the person is released, and the name of the bondsman, if any.

You do not indicate in your request letter whether the Harris County Sheriff keeps the record contemplated by this provision. However, we do understand that the cash shortage was discovered as a result of discrepancies between the cash on hand and copies of the receipts for cash issued pursuant to article 17.02 of the Code of Criminal Procedure, supra.

Before beginning to perform the duties of his office, a person elected as sheriff must take an oath and execute a bond. A failure to take the oath and to execute the bond in a timely manner renders the office of sheriff vacant. Local Gov't Code § 85.001. Among the statutory conditions of the mandatory bond are the sheriff's faithful performance of the duties of office established by law and the sheriff's accounting for and paying to persons authorized to receive them the fines, forfeitures, and penalties the sheriff collects for the use of the state or a county. Local Gov't Code § 85.001(b).

We understand that the cash shortage in Harris County is attributable not to the sheriff personally but to one of his deputies. This fact is of no legal consequence, because the sheriff is statutorily responsible for the official acts of a deputy. Local Gov't Code § 85.003(d). The sheriff may require a deputy to execute a bond or other security, and the sheriff has the same remedies against a deputy and his sureties as any other person has against the sheriff and the sheriff's sureties. Id.

In Attorney General Opinion H-751 (1975), this office was asked about the liability of a sheriff and his bonding company for shortages of fines and cash bonds. The opinion relied on former article 6870, V.T.C.S. (now codified as Local Gov't Code § 85.003(d)), to find a sheriff liable for the misappropriation of cash bonds and fines collected by his deputies. The sheriff's bonding company was also liable for the loss discussed in Attorney General Opinion H-751:

Concerning the liability of the bonding company, the general rule is that '[i]n order to hold such a surety, there must be a violation of the condition of the bond.' Aetna Casualty & Surety Co. v. Clark, supra, at 80. Since the accounting for fines is an express condition of the bond, and since the accounting for bail bonds is a duty required of sheriffs by law and thus also a condition of the bond, in our opinion the surety would be liable for the failure of the sheriff to account for these funds whether or not the failure to account is due to a deputy.

Attorney General Opinion H-751 (1975). See also Attorney General Opinion JM-517 (1986) (the commissioners court and county auditor may not relieve a justice of the peace of liability for shortages of public money received by the justice); Attorney General Opinion H-360 (1974) (district clerk liable for disappearance of trust funds in clerk's possession).

Thus, among a sheriff's statutory duties are the execution of a bond to account for funds he collects; refunding a defendant's bond money upon the defendant's compliance with the conditions of his bond; liability for the official acts of his deputies; and the faithful performance of his duties. In our opinion, a cash shortage in an official account reflects a failure on the part of the sheriff or his deputy to perform his duties in accordance with law. The sheriff and his sureties may be sued for any shortage.

Your request indicates that the sheriff has an agreement with his bonding company that he may be sued by the company for any payments made by the sheriff on the sheriff's bond. As you describe it, the sheriff is in a position of personal liability to his bonding company for any loss it sustains on the sheriff's behalf.

The sheriff of Harris County is responsible for the supervision of hundreds of employees. In our view, he cannot realistically personally supervise every act of every one of those employees. Proper accounting for those funds clearly seems to be an "ordinary and necessary expense" of office. In our opinion, a payment or reimbursement from the sheriff's political fund account for the purposes described here would not constitute a diversion to "personal use," as defined in section 253.035(d). We believe that such an expenditure for the purposes described herein would be a "payment made to defray ordinary and necessary expenses incurred in connection with the performance of duties or activities as a public officeholder."

SUMMARY

A sheriff may use his campaign or officeholder contributions to pay or reimburse cash shortages in his official account. The use of political funds for this purpose would not violate the personal use restriction of section 253.035 of the Election Code.

Very truly yours,

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 Karen C. Gladney
Assistant Attorney General