Can a Texas commissioners court require a separate bank account for the county airport fund?

Texas AG Opinion JM-933: A Separate Bank Account for the Airport Fund

Plain-English summary

Ector County runs an airport, and by state law the money the airport brings in goes into a special "airport fund" that can only be spent on airport purposes. The county attorney asked the Attorney General a bookkeeping question with a real turf angle to it: can the commissioners court, the county's governing body, order that the airport fund be kept in its own separate bank account? Or is that the kind of accounting decision that belongs to the county auditor?

The Attorney General concluded the commissioners court can do it.

The wrinkle is that in a smaller county like Ector (under 190,000 people), the county auditor has statutory authority to set up regulations for collecting, checking, and accounting for county money. So you might think deciding how the airport fund is held is the auditor's call. But the Attorney General looked at the commissioners court's own powers and found they cover this ground. The commissioners court can require additional accounts to be kept and create new classes of funds. It picks the county's bank depositories. It decides which county money is held as demand deposits and which as time deposits. Read together, those powers to classify funds, choose banks, and require separate accounts add up to the authority to require that the airport fund sit in its own separate bank account, as long as all the other legal requirements are met.

The Attorney General added a candid aside: the line between the county auditor's authority and that of other county officers is genuinely fuzzy, and the office had flagged that uncertainty in other opinions. But on the specific question asked, the statutes pointed clearly enough to the commissioners court having this power.

The opinion closed with an important clarification so no one over-read it. Saying the commissioners court may require a separate bank account is not the same as saying the law demands one. Article 46d-11 requires the airport money to go into a special "fund," but a "fund" is an accounting concept, not necessarily a standalone bank account. Different county funds can legally share a single bank account, as long as the county's accounting procedures keep the money straight and ensure each fund is used only for its proper purpose. So the separate account is an option the commissioners court may choose, not a legal must.

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.

The county-finance provisions cited here (Local Government Code sections 112.001 and 113.004 and chapter 116) and the Municipal Airports Act (article 46d-11, V.T.C.S.) have been amended and, in the case of the airports statute, recodified into the Transportation Code since 1988. The population brackets governing county auditor authority and the depository rules may read differently today. Anyone dealing with county fund segregation now should rely on the current Local Government Code and Transportation Code rather than the 1988 provisions cited here.

Who this opinion affected (as of 1988)

County commissioners courts: The opinion confirmed their authority to require a separate bank account for a statutory special fund like the airport fund, drawing on their powers over county accounts and depositories.

County auditors: The opinion recognized the auditor's accounting authority but concluded the segregation decision here fell within the commissioners court's powers, while acknowledging the boundary between the two remains uncertain.

Counties operating airports: The opinion clarified that a separate bank account for airport revenue is permitted but not required, so long as accounting procedures keep the special fund used for its proper purposes.

Common questions

Can a commissioners court order a separate bank account for the county airport fund?
Yes. The Attorney General concluded the Ector County commissioners court may require a separate bank account for the airport fund created under article 46d-11, as long as all applicable legal requirements are met.

Isn't setting up accounts the county auditor's job?
The county auditor has authority over collecting, checking, and accounting for county funds, but the Attorney General concluded the commissioners court's powers to create classes of funds, select depositories, and require separate accounts include the authority to require a separate airport-fund account.

Does the law require a separate bank account for airport revenue?
No. The opinion concluded article 46d-11 requires a special "fund" but not a separate bank account. Different county funds may share one bank account if proper accounting procedures ensure each is used for the correct purposes.

What is the difference between a "fund" and a bank account?
A fund is an accounting classification tracking money set aside for a purpose; a bank account is where cash is physically held. One bank account can hold several funds if the accounting keeps them separate.

Background and statutory framework

Article 46d-11, V.T.C.S., a provision of the Municipal Airports Act, provides that revenues a municipality obtains from the ownership, control, or operation of an airport or air navigation facility, including proceeds from a sale, shall be deposited in a special fund designated the airport fund and appropriated solely to and used for the purposes authorized by the Act. In a county under 190,000 population, such as Ector County, the county auditor may adopt and enforce regulations, not inconsistent with law, that the auditor considers necessary for the speedy and proper collecting, checking, and accounting of county revenues and funds (Local Government Code section 112.001).

The Attorney General concluded, however, that the commissioners court's authority over county accounts under section 113.004 and over depositories under chapter 116 implies authority to determine the physical location and manner of segregation of county funds such as the airport fund. Section 113.004 provides that the treasurer shall divide funds into certain classes, but subsection (c) provides that the commissioners court, as it considers proper, may require other accounts to be kept, creating other classes of funds. Section 116.021(a) authorizes the commissioners court to contract with one or more banks in the county for the deposit of county funds, and section 116.111 authorizes it to determine and designate the character and amount of county funds that will be demand deposits and that will be time deposits. The authority to create classes of funds, select county depositories, and require separate accounts includes the authority to require a separate bank account for the airport fund, as long as all applicable legal requirements are met. The opinion noted continuing uncertainty about the scope of the county auditor's authority relative to that of other county officers (Attorney General Opinion JW-911 (1988)).

The opinion also concluded that a separate bank account is not required by article 46d-11; it held only that the commissioners court has authority to require the funds to be segregated in that manner. Different county funds may be placed in a single bank account if proper accounting procedures are adopted to ensure the funds are used for the correct purposes (Attorney General Opinions H-1254 (1978); W-975 (1971)).

Citations

Statutory authority:

• Article 46d-11, V.T.C.S. (Municipal Airports Act; airport revenues deposited in a special airport fund)
• Section 112.001, Local Government Code (county auditor regulations in counties under 190,000 population)
• Section 113.004, Local Government Code (division of county funds into classes; commissioners court may require other accounts)
• Chapter 116, Local Government Code (county depositories; demand and time deposits)

Prior Attorney General materials referenced: JW-911 (1988); H-1254 (1978); W-975 (1971).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-933
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0933.pdf

Original opinion text

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

July 27, 1988

Honorable Gary Garrison
Ector County Attorney
Ector County Courthouse, Rm. 223
Odessa, Texas 79761

Opinion No. JM-933

Re: Authority of a commissioners court to direct the county auditor to set up a separate bank account (RQ-1366)

Dear Mr. Garrison:

You ask whether the commissioners court of Ector County is empowered to order a separate bank account to be established for the "Ector County Airport Fund," created pursuant to article 46d-11, V.T.C.S., a provision of the Municipal Airports Act. In our opinion, the commissioners court of Ector County may order the establishment of a separate bank account for the airport fund.

Article 46d-11, V.T.C.S., provides:

The revenues obtained by a municipality from the ownership, control or operation of any airport or air navigation facility, including proceeds from the sale of any airport or portion thereof or air navigation facility property, shall be deposited in a special fund to be designated the "Airport Fund," which revenues shall be appropriated solely to, and used by the municipality for, the purposes authorized by this Act.

The county auditor's authority with respect to the maintenance of county funds, in counties under 190,000 population such as Ector County, is provided for in section 112.001 of the Local Government Code:

In a county with a population of less than 190,000, the county auditor may adopt and enforce regulations, not inconsistent with law or with a rule adopted under Section 112.003, that the auditor considers necessary for the speedy and proper collecting, checking, and accounting of the revenues and other funds and fees that belong to the county.

We believe, however, that the authority given the commissioners court in section 113.004 regarding county accounts and chapter 116 of the Local Government Code regarding depositories for county funds implies that the commissioners court has authority to determine the physical location and manner of segregation of county funds such as the county airport fund created pursuant to article 46d-11.

Section 113.004 of the Local Government Code provides that the treasurer shall divide funds received into certain classes, but subsection (c) of the section provides that "[t]he commissioners court, as it considers proper, may require other accounts to be kept, creating other classes of funds." Section 116.021(a) authorizes the commissioners court to contract with one or more banks in the county for the deposit of county funds. Section 116.111 authorizes the commissioners court to "determine and designate the character and amount of county funds that will be demand deposits and that will be time deposits."

It is our opinion that the authority of the commissioners court to create classes of funds, to select county depositories, and to require separate accounts to be kept includes the authority to require a separate bank account to be established for the airport fund, as long as all applicable legal requirements are met.

We feel it appropriate to note that we are not unmindful of the continuing legal uncertainty as to the scope of the County Auditor's authority relative to that of other county officers. See, e.g., Attorney General Opinion JW-911 (1988). Nevertheless, we here conclude from a review of the statutes relevant to the issue you present that the commissioners court is authorized to order a separate bank account established for the airport fund created pursuant to V.T.C.S. article 46d-11.

You also ask whether maintenance of a "separate account" under the general county accounting system satisfies the requirement of V.T.C.S. article 46d-11 that the revenues from the municipal airport "be deposited in a special fund."

We do not conclude here that the deposit of the funds in a separate bank account is required by article 46d-11, only that the commissioners court has the authority to require the funds to be segregated in such manner. But different county funds may be placed in a single bank account if proper accounting procedures are adopted to insure the funds are utilized for the correct purposes. Attorney General Opinion H-1254 (1978). See also Attorney General Opinion W-975 (1971).

SUMMARY

The commissioners court of Ector County is authorized to order a separate bank account established for the airport fund created pursuant to V.T.C.S. article 46d-11. Establishment of a separate bank account for the special fund is not required if proper accounting procedures are followed.

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 William Walker
Assistant Attorney General