Does a Texas county treasurer or commissioners court control the money in a court's registry account?

Plain-English summary

Franklin County (population under 190,000) has a county auditor. The commissioners court had given the county treasurer "view-only" access to all bank accounts carrying the county's employer identification number and named the auditor as the county's online bank-account-access administrator for accounts at the depository bank. The county attorney asked the AG to sort out who actually has authority over the court's registry accounts: the treasurer, the commissioners court, or neither. He asked three questions: whether the treasurer has administrative authority (including permanent online view-only access) over a court's registry account, whether the commissioners court has authority over it beyond picking the depository, and whether the registry account may use the county's federal tax ID number or must get its own.

On the first two, the AG drew a clear line around what the county can and cannot touch. Money tendered into a court's registry does not belong to the county, it is held in trust, so it does not sit in the general county depository. It goes into a separate "registry fund" account held in the name of the county or district clerk. Chapter 117 of the Local Government Code spells out the clerk's duties for that account: keep the funds secure, deposit them, and pay them out only as a court orders. Chapter 117 assigns no duties or powers over that account to the county treasurer. So the treasurer, even though the treasurer is the chief custodian of county funds generally, has no administrative authority over a court registry account.

The commissioners court fared only a little better. Like any commissioners court, it has only the powers the constitution or a statute gives it (or that are necessarily implied). Chapter 117 lets the commissioners court select, designate, and contract with the depository bank for the registry fund, and require the depository to post a new bond to protect the clerks' registry funds. Beyond those express duties, chapter 117 gives the commissioners court no authority over a court's registry account.

On the third question, the federal tax ID number, the AG declined to answer. An employer identification number is issued by the IRS, no Texas statute regulates using one for depository accounts, and whether a particular account may share a number is ultimately an IRS question. The AG pointed the requestor to the IRS, citing earlier opinions that took the same hands-off approach to federal tax questions.

Currency note

This opinion was issued in 2017. 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.

What the opinion meant for those who asked

The county attorney who asked (as the opinion described it): The opinion answered two of the three questions: the treasurer has no administrative authority over a court registry account, and the commissioners court has only the authority needed to select, designate, and contract with the depository bank and require adequate security. The tax-ID question it left to the IRS.

County treasurers (as the opinion described them): The opinion treated the treasurer as the chief custodian of county funds under chapter 116, but explained that court registry funds are held in trust and are not county funds, so chapter 117 assigns the treasurer no duties or powers over a registry account, including no permanent online view-only access.

County and district clerks (as the opinion described them): The opinion placed the registry funds in an account held in the clerk's name and described the clerk as acting in a custodial capacity once the funds are deposited, paying out only on court order.

Commissioners courts (as the opinion described them): The opinion limited their role to selecting, designating, and contracting with the depository bank for the registry fund and requiring the depository to execute a new bond to protect the registry funds.

Common questions

Does the county treasurer control a court's registry account?
Under this opinion, no. The AG concluded that chapter 117 of the Local Government Code assigns the clerk, not the treasurer, the duties over a court registry account, so the treasurer has no administrative authority over it.

Can the treasurer at least get permanent online view-only access to the registry account?
The opinion said the treasurer has no administrative authority over the account, and it treated permanent online view-only access as part of that authority the treasurer does not have.

Whose name is the registry account in?
The opinion explained that the registry fund account must be held in the name of the county or district clerk, who keeps the funds secure and pays them out only as a court directs.

What can the commissioners court do about the registry account?
The opinion said the commissioners court may select, designate, and contract with the depository bank for the registry fund, and may require the depository to execute a new bond to protect the clerks' registry funds. Beyond that, chapter 117 gives it no authority over the account.

Why wouldn't these funds just go in the county's regular bank account?
Because money paid into a court's registry does not belong to the county. The opinion described it as held in trust, which is why it must sit in a separate registry account rather than the county's general depository.

Can the registry account use the county's federal tax ID number?
The AG declined to decide. Using an employer identification number is an IRS matter, no Texas statute regulates it for depository accounts, and the opinion pointed the requestor to the IRS.

Background and statutory framework

The county treasurer is the chief custodian of county funds and must keep in a designated depository and account for all money belonging to the county (Tex. Loc. Gov't Code § 113.001), depositing the county's funds in the county depository (Tex. Loc. Gov't Code § 116.113(a)). Chapter 116 governs the treasurer's duties for the general depository (Tex. Loc. Gov't Code §§ 116.001-.060). But funds paid into a court's registry do not belong to the county; they are held in trust (Sellers v. Harris Cty., 483 S.W.2d 242, 243 (Tex. 1972)), and must be deposited in an account separate from the general depository, a distinction the AG had drawn before between the chapter 116 general depository account and the chapter 117 trust depository account (Tex. Att'y Gen. Op. No. JC-0195 (2000)).

When funds are tendered to the registry of the court, the clerk deposits them in a special "registry fund" account (Tex. Loc. Gov't Code § 117.001(3), (5), .052). The commissioners court selects and designates the depository bank for the registry fund (Tex. Loc. Gov't Code §§ 117.023, .025), and the account must be held in the name of the county or district clerk (Tex. Loc. Gov't Code §§ 117.021(a), .052(b)). The clerk deposits registry funds from sources listed in the statute, including funds of minors, interpleader funds, judgment proceeds, certain child support funds, cash bonds and cash bail bonds, and eminent-domain funds (Tex. Loc. Gov't Code § 117.052(c)). The clerk keeps the funds secure until deposit (Tex. Loc. Gov't Code § 117.081(b)) and afterward acts in a custodial capacity only (Tex. Loc. Gov't Code § 117.0521), paying out of the account only pursuant to court order unless a statute provides otherwise (Tex. Loc. Gov't Code § 117.053(b); Tex. Att'y Gen. Op. No. JM-1162 (1990)). Because chapter 117 assigns these duties to the clerk and none to the treasurer, the AG concluded the treasurer has no administrative authority over a registry account.

A commissioners court has only the powers conferred by the constitution or statute or necessarily implied (City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003)). Chapter 117 authorizes the commissioners court to select, designate, and contract with the depository bank for the registry-fund account (Tex. Loc. Gov't Code §§ 117.021(a)-(b), .023, .025) and to require a depository to execute a new bond to protect the clerks' registry funds (Tex. Loc. Gov't Code § 117.057(a)). It assigns the commissioners court no other authority over the registry depository. The opinion was limited to a county with a population under 190,000, because some chapter 117 provisions apply only to larger counties (Tex. Loc. Gov't Code §§ 117.058, 117.111-.126).

On the federal tax ID number, the AG noted that an employer identification number is issued by the IRS (26 C.F.R. § 301.6109-1), that no Texas statute regulates using one for depository accounts, and that the question was for the IRS. The opinion followed earlier ones declining to answer federal tax questions (Tex. Att'y Gen. Op. Nos. GA-0130 (2003), JC-0482 (2002), JM-1263 (1990)).

Citations

Statutes and regulations:

• Tex. Loc. Gov't Code §§ 113.001, 116.001-.060, 116.113(a), 117.001(3), (5), 117.021(a)-(b), 117.023, 117.025, 117.052, 117.052(b), 117.052(c), 117.0521, 117.053(b), 117.057(a), 117.058, 117.081(b), 117.111-.126
• 26 C.F.R. § 301.6109-1
• Tex. Att'y Gen. Op. Nos. JC-0195 (2000), JM-1162 (1990), GA-0130 (2003), JC-0482 (2002), JM-1263 (1990)

Cases:

• Sellers v. Harris Cty., 483 S.W.2d 242 (Tex. 1972)
• City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. 2003)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0174
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0174.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

November 13, 2017

The Honorable Gene Stump Opinion No. KP-0174
Franklin County Attorney
200 North Kaufman Street Re: County authority related to a court's
Mount Vernon, Texas 75457 registry account (RQ-0167-KP)

Dear Mr. Stump:

    You ask about county authority over a court's registry account. [1] You state that Franklin County has a population of less than 190,000 and has a county auditor. Request Letter at 1. You inform us that the county commissioners court granted the county treasurer "view-only" access to all accounts having the county's employer identification number and appointed the auditor as the county's "online bank account access administrator" for all county accounts at the county's depository bank. [2] You are primarily concerned about the treasurer's and the commissioners court's respective authority concerning the court registry accounts for the county. See Request Letter at 1.

    You first ask whether the county treasurer has "administrative authority [over] a court's registry account, including permanent online view-only access rights." Id. The county treasurer is the chief custodian of county funds, who "shall keep in a designated depository and shall account for all money belonging to the county." TEX. LOC. GOV'T CODE § 113.001 (emphasis added); see also id. § 116.113(a) (requiring the treasurer to deposit all of the county's funds in the county depository). Chapter 116 of the Local Government Code governs the treasurer's duties with respect to the general depository for county funds. Id. §§ 116.001-.060. However, funds paid into the registry of the court do not belong to the county. See Sellers v. Harris Cty., 483 S.W.2d 242, 243 (Tex. 1972) (stating that funds paid into the court registry "are not owned by the county but are only held in trust"). Court registry funds and certain other funds the county holds in trust must be deposited in an account separate from the county general depository account. See Tex. Att'y Gen. Op. No. JC-0195 (2000) at 4-5 (distinguishing between the county general depository account under chapter 116 and the county trust depository account under chapter 117). [3]

    When funds are tendered to the registry of the court, the district or county clerk must deposit the funds in a special account of the depository bank called the "registry fund." TEX. LOC. GOV'T CODE §§ 117.001(3), (5), .052. The commissioners court selects and designates the depository bank for the registry fund. Id. §§ 117.023, .025. The account must be held in the name of the county or district clerk. Id. §§ 117.021(a), .052(b). The district or county court clerk has the responsibility to deposit court registry funds paid from the following sources:

           (1) funds of minors or incapacitated persons;

           (2) funds tendered in an interpleader action;

           (3) funds paid in satisfaction of a judgment;

           (4) child support funds held for more than three days;

           (5) cash bonds;

           (6) cash bail bonds;

           (7) funds in an eminent domain proceeding; and

           (8) any other funds tendered to the clerk for deposit into the registry of the court.

Id. § 117.052(c). The county or district clerk must keep registry funds secure until the clerk deposits them in the court registry depository. Id. § 117.081(b). Once the registry funds have been deposited, the county or district clerk acts in a custodial capacity only. Id. § 117.0521. Except as a statute may otherwise provide, the clerk may make payments out of the account only pursuant to court order. Id. § 117.053(b); see also Tex. Att'y Gen. Op. No. JM-1162 (1990) at 3 (stating that "the first duty of the clerk is to follow the instructions of the court that directed him to hold the funds"). While chapter 117 of the Local Government Code assigns these duties to the county or district clerk, it assigns no duties or powers to the county treasurer. Therefore, the treasurer does not possess administrative authority over a court registry account.

    You next ask whether the county commissioners court has "authority over a court's registry account, apart from selection of the depository." Request Letter at 1. A commissioners court has only those powers expressly conferred by the constitution or statute or necessarily implied therefrom. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003). Chapter 117 authorizes the commissioners court to select, designate, and contract with the depository bank for the special account for court registry funds. TEX. LOC. GOV'T CODE §§ 117.021(a)-(b), .023, .025. Also, the commissioners court may require a depository to execute a new bond "for the protection of the county clerk's and the district clerk's registry funds." Id. § 117.057(a). Chapter 117 does not assign the commissioners court any other duties or powers with respect to the court registry depository. Accordingly, a commissioners court does not possess authority over a court's registry account except as necessary to fulfill these express statutory duties under chapter 117.

    Finally, you ask whether the county may use the county's employer identification number for a court registry account, or whether the court registry account must obtain its own number. Request Letter at 1. An employer identification number, also known as a Federal Tax Identification Number or Taxpayer Identification Number, is a number provided by the Internal Revenue Service ("IRS") for administering tax laws and certain other purposes. See 26 C.F.R. § 301.6109-1. No Texas statute regulates the use of tax identification numbers for depository accounts. Because the use of a tax identification number for particular purposes is ultimately an issue for the IRS, your question is more appropriately directed to that agency rather than this office. See, e.g., Tex. Att'y Gen. Op. Nos. GA-0130 (2003) at 4 (declining to answer a city's question about compliance with Internal Revenue Code), JC-0482 (2002) at 7 (suggesting that the requestor direct a question about tax deductibility to the IRS); JM-1263 (1990) at 2 (not resolving whether the tax assessor-collector was entitled to obtain a separate employer identification number because "[t]hat is a matter within the jurisdiction of the Internal Revenue Service"). [4]

                                SUMMARY

                 A county treasurer does not have administrative authority over a court's registry account. A county commissioners court has only the authority necessary to perform its duties to select, designate, and contract with a depository bank for court registry accounts and to require adequate security for the accounts.

                                      Very truly yours,

                                      KEN PAXTON
                                      Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Gene Stump, Franklin Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (June 23, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinions-rqs ("Request Letter").

[2] See id. and attached minutes of the Franklin County Commissioners Court's meetings on May 22, 2017, and June 5, 2017.

[3] Your question concerns a county with a population of less than 190,000, and we limit our opinion accordingly. Within chapter 117, some provisions do not apply to a county with a population of less than 190,000. See TEX. LOC. GOV'T CODE §§ 117.058 (accounting and disbursing provisions for counties with a population of 190,000 or more); 117.111-.126 (provisions applicable in a county with a population of 1.3 million or more).

[4] IRS assistance with local government issues can be accessed at https://www.irs.gov/government-entities/federal-state-local-governments/fslg-customer-services (last visited Oct. 24, 2017).