Untitled Texas Attorney General Opinion

QBffice of t!p IgttotnepQ3eneral &ate of pCexa$ DAN MORALES *l-mmEY GENERAL June30.1995 Ms. Carole Wayhmd Opiion No. DM-357 Midland county Auditor 2oowestwsll Re: whetha a county auditor may require Midland, Texas 79701 the county attorney to prepare and submit, for inchion in the county budget, a projection of revenuesandarpmdituresfor the county attorney hot-chwk fund for the following fiscal yesr and related questions (RQ-791) DesrMs. wayland: Yourprodecessorinoffi~asktdwfiahathecountyattorneymayberequindto prepare and submiL for inclusion in the county budget, a projection of mvenues and expadms for the county attorney hot-check Gnd (the %ounty attorney’s fee fimd” or ‘Kmd”).for the upwmlngfiscalyesr. InaIettertothisofficCyourpmdeccswr swwwzed his beliefthat section 111.003 of the Local Govanmmt codeauthorized Midland County to include the county attorney’s fee fund in the county’s budget: Iw]hiletheexpezuKturesS-omthisfundshaUbeatthesole discmtion of the County Attorney, those expenditures are nevertheless part of the “[ . . . ] expenditures of the county government” [for purposes of Local Government code section 111.003]. It is clear that Midland County CommissionersCourt may not consider the Fund’s estimated expenditures for the putpose of modiig expenditure budgets for the gmersl fund. Tkefore, I have concluded that the County Attorney should provide the estimates of revenu& and expenditures for the succeed@ fiscal yesr for budgeting the Fund, and the Budget OfEcer and Court must accept such estimates when assemblingthe County’s overall budget. In the alternative, your predecessor questioned wbeth~ section 114.002 of the Local (%mmment Code authorizes the county auditor to require the county attorney to report Ma Carole Wayland - Page 2 (D&357) his or her projection of revenues and expenditures of the timd for the succeeding year, and whether the officisl county budget may indude the county attorney’s estimates. The Midland County Attorney dimgmes with your predecessor’s position. You have submitted copies of letters he wrote to your predecessor, in which he claims that section 102.007 of the Code of CriminalProcedum together with prior opinions of this office, take the fund out of the county’s budgeting process. As he ssid in his April 29.1994. letta to your predecessor, “[Tlhis knd is not subject to any type of budget or approval by any body other than the elected County Attorney.” &forewedisarsrtheparticular6ndatissuehete,webelimitwillbahdpll brieSytodescriithecountybudgetingprocess. Inacountywithapopulationlessthsn 225,001, such as Midland County,t the county judge is responsiile for pmparhtg the COUQ’S budget “to cover ah proposed expenditures of the county government for the swxee&g iisud year.” Local Gov’t Code 5 111.003; see also 35 DAVID B. BROOKS, COUNtYANDSFZCIAL DIs’IRICC LAW5 15.3. at 532 (Texas Practice 1989). The county ~mayassistthecountyjudgeinthizendeavor. LocdGov’tCode~111.003. The budget is to Ii& among other thin& %stimated revenues avsilable to cover the proposed budget.” Id 8 111.004(b)(S). Toaidinpmpadngthebudget,“thecountyjudgemayrequireanycountyoiiicer to ibmish information necesnq for the judge to properly prepare the budget.” Id 5 111.005. Ano5~whorefusestocomplymaybtpenalizedinaccordancewithsection 111.012oftheLoctdGovanmartCode. MtatbecoYntyjudge6ascompletedtheprepantiandthe.bvdgdandMeda copyofitwiththecountyderk,seeid p 111.006,thecownissionasuwtholdsaplblic hearing on the proposed budget, id. 3 111.007(a). At the conclusion of the public hear& the county commissionerscourt may adopt the budget, with or without amendments. See id 8 111XlO8. Following final approval of the budget, “the commissioners court may spend county funds only in strict compliance with the budget, except in an emergency.” Id.5 111.010(b). Nevertheless, the court subsequently may revise the budget “for county purposes.” Id.8 111.011. The county attomey’s’fee fund is amassed pursusnt to article 102.007 of the Code of CriminalProcedure. Subarticle(a) authorizes a county attorney to collect a fee if his or her office collects and processes dishonored or forged checks, Any party to the offsn~e is ~‘Ibe1994-95T~~UdsthcpopulationofMidlaadCoantyrs110,811. TED&LAS MOIWNONEWS, 1994-95TEXASAUUNAC246 (1993). p. 1903 Ms. Carole Waylancl - Page 3 (DH-357) her office wkcts and prowsses dishonored or forged checks. Any party to the o&me is liable for the fw. See Code Grim. Proc. art. 102.007(b). Subarticle~(c)pmscrii the smount of the fee the wunty attorney may wllect.~ Subartide (f) provides for the county attomey’sfeefimd: Fees wkcted under Subsection (c) of this article shall be depositedinthewunty~inaspedal~dto&administer#l bythewuntyattomey.... ExpendituresfiomthisfundshaUbeat the sole discretion of the attorney and may be used only to defray the salaries and expemes of the prosecutor’s office, but in no event may thewuntyattomey... supplement his or her own saky from this timd. This 051x has dimmed the county attorney’s fte fund in seversI opinions. We have made dear that the cotmty attorney has exdusive control over monies in the fimd. See Attorney General opinion I’M-1034(1989) at 3; see &o Attorney General opinion I’M-738(1987) at 3. Whiletlte coamtycommissionerscourt odinatily wntrols an expenditum of county fimds the. comty attorney need not obtain the wmmissioners court’s approval before ucpwdhg money Corn the fimd. See Attomey Genersl Opinion JIK-313 (1985) at 2-3; 9cc akv Attorney General Opiion N-632 (1987) at 2 (stating that sktutoq predecessor toGdeofcriminalProc&re artide 102.007 carvea out exception to statukq .. p. 1904 Ms. Carole Wayland - Page 4 (DM-357) wmty auditor. Attorney Genial Opiion M-3 13 (1985) at 3; see U&W Attorney Gcnaal Opiions JIM-%7 (1988) at 2, MW-584 (1982) at 3, MW-188 (1980). Morwver, the county Utomey may not use the iimd for purpoti other than those listed in section 102.007 of the Code of Criminal Pmcedure. Set gerrerolly Attorney Gmaal Opiion JM-313 (1985) at 3-13 @cussing various proposed uses of county attorney’s fee fund). We believe Attorney General opinion MW-439 (1982) is particulsrly relevant to the issue you misc. Attorney General Opiion MW-439 considered whetha a airnina district attorney must have wmpethively bid, pursuant to the statutes reqking wunties to wmpetihly bid certain purchases, purchases of supplies and equipment the attorney bought using money from the fimd. Upon exsmbhg the lsngufge of the statute aeating the fund the opinion determined that expenditures from the fund arx wit@ the sole disc&on of the county, district, or crimiml district attorney who has accumukcd the fi~nd.3 Attorney Gened Opiion W-439 (1982) at 6. “Thus, by virtue of the express hot-check fimd is explidtiy placed beyond tha reach of the The relevant wmpaitive bidding statutes, V.T.C.S. articles 1659a4 and 2368a,s resllired8-w wmmission~~ court to wmpetitively bid the purchase of catain nrppliesaadequipment~toawardthcwntradtothatbidderwho,inthejudgmemof the WU@ wmmissionas court, submitted the lowest qxmsible bid Id at l-2 Based on their plain language, the opinion determined that the competitive bidding statu&s 8ppliedonlytocertainpurchswmadebythewuntycommm ’ ‘oncrs CouItp Id.at6. *rae lo&bitm rep&d V.T.C.S. tide 16% in 1985. See AU of May 27, 19S5,69tb Ix& RS.. ch. 641.5 11(l), 1985 Tu GUI.Laws 2377.2384. JTbck@ab~1~rrpcaledV.T.C.S.a&k2368ain1981. SeeMdMay1,1987,7OtbLe;k. RS., ch. 149.0 49(l). 1987 Tcx. Gm Laws 707.1307. The mat&l in aftick 2368a Aatiq ta cmntks divnrscdin~Gencral~~MW-)39(1982)irnowfoundinEhapta262,nrbchPptcrCdthc lAlc3l-code. %c of tbc rolavaatcompetitivebit s&Mcs, V.T.C.S. Micle 236% applied only to a amty achg “tluoygb its ?mmisioncr~ C+” @pcy Qcnaal Opinion MW-439 (1982) at 6. ~htibo@m.cy-=d chatmm- b+w smutc ~a5 d Fqs=d” rinks 0 coonty anomwsaoocrswurtmmakoaspcu6c~ Id. SmMy,moUwW ampctitiva biddinS stata& V.T.C.S. article 16S9a.@ititly t&and only to cmtlausfoftbcprrrhase ofRIpplic3aodmtbattbc commisioaas anm awar&d.Id. p. 1905 Ms. Csrole Wayland - Page 5 (DM-357) Because a wmmissionem court is “without any right to admhist~ the @mt+hedt] tbnd or to be involved in making expenditure3 f+om it,* the opinion wnduded the wmpetitive bidding statutes did not apply to purchams made with money from the fimd. Id. To conclude o&wise, this office stated, would allow a wmmissioners court indirectly to control the tbnd, and such a result would be wntrsry to the express language of the statutory predecessor of article 102.007 and, theretbre, to the legislature’s intent. Id.Theopinion wntinued with an example: “A wmmissioners court could. . . refuse to acceptwyoranbidsinaparticularinstMceMdthusintatirrwiththearausiveri~of the designated individuals to admit&a the fund and to determine when, for what purposes, and unda what drcumstwccs expenditures willbemadefiomit." Id. Sii, Attorney Gene-mlOpiion IM-313 indicated that the county attorney mayuscmoncy~mthefundtoincnasethe~esofthecountyattorney’s~ withoutflrst rewiving the approval of the wmmissionerswurt. AttorllqGenersl Opinion m-313 (1985) at 9. Moreover, the opinion contin& the wmmissioners court may not subsequenUyreduce the amoti the county attorney’s statT rewives so 8s to camt~~~ thesalary incmses.Id. Sucha rcqxme would interfere with the county Utomey’s “sole disc&on” over the 6md. Id. Inouropiniostopamitacountyjudge,or~wuntylluditorwbehalfofthe countyjudge,toraquintbew~~~~torubmitproposedrevaruesrad ~forthecapmty~~‘sfwfimdfortheupoominefisalyear~be tamawwttoprovidingthecountywmntissionerscouttanindhectmeansofwmrolhng tbefimd,seeAttomeyGemralOpinionMw439(1982)rt6,orameras~~ witlithe county 8ttomey’s exdusive discdon over the fW& see Attorney Gene4 OpiionJM-313(1985) at 9. Unda the wunty budgeting statutes, ifthe county attorney isrequindtosubmittothewuntyjudgeestimatedrmrmesand~~fortheuse of the fimd during the upcoming tiscsl yesr, the estimates, along with the rest of the comty budget, would be filed with the wunty dak and would be available for pubhc hspection. See Local Gov’t Code Q 111.006. Even if the wmmissionem court understands that it may not modify the county attotney’s proposed budget, the public may wmment on it during the public hearing on the proposed budget. See id 0 111.007(a). Commissioners may feel wmpelkd to respond to public W~KUS, particularly if they (f- continued) Tbisofficemtal.inAtlomcyGcncralopiaiolIlM-96l.thatthclcgislatlucbadlmadtdtbe bot~fandbnvsndlbeoo~bii6lamta. Iuma99~opinionlM-967(1988)~2. T6cOpbliOllltMiWd,bOWCVCf,lbC atoadmwdidootcbaogoauamchl6iooioAttomcyGcnaal opioioo MW-W that botebcck faod porch arc aot mbjat towmpaitivc biading m. Id. p. 1906 Ms. C&roleWayland - Page 6 (DM-357) cannot amend the wmty attorney’s budget for t& fund in response to such wmment.$. See id. 0 111.008. Altawtkdy, citizws may view the wmmissionas wurt’s silence or retkssltoamendthebudgetastacitappmval. In addition, the county budgeting process fosters acwun&i for the expenditure of wunty funds. By budgeting appropriations in advsnce of the stsrt of the tiscal year. the zp;&tpel the application of county timds to the purposes for which they . . . prevent the application of such fimds to 0th~ putposq and.. .pmvent the cxpe&um of greata sums of money thsn are naxssrq for 1egiGmstewuntypqoscs.” See4CHF.sERJMdEs&nEkIJ,~UCAL GovERNMprr- 0 43.10, at 43-21 (Loud Govamma Law 1990). To de&mine haethatthecountyattorneymustrubmitabudgdfortkcountysttorney’sfac~ wouldarggestthafundasectionlll.Olo@)oftheLocaloovanmmtcodc,theawnty attorney may spwd monies !?um the knd only “in strict wmplisnw with the budget, exceptinanemagwcy.” LoadGov’tCode~111.010@). Furthamore,asthewunty attorney has suggested in a letter to your predecessor, citizws may be led to wn&de thst the wmty attorney is irresponsiily using monies in the fund because he or she is not complyingwith the budget for the county attorney’s fee fund.7 We~concludethattheeounty~*s~amdiswhollywtsideof the comty budgeting process. We construe section 111.003 oftbe Local CMamwnt code,wlichrequimthecotmtyjudgeto~abudgettowveraUpmposed exp&immofthewuntygovemnl ent for the suweeding tIsaxl year,” to be inapplicable tothewuntyattomey’sfeefimdbecausethewuntywmmissionerswult&sno~to dmi&ertheamdortobeitlvolveditlmakingoxpendihaeo~it....” &eA!tomey Gwaal Opinion MW439 (1982) at 6. Thus, section 111.003 does not authorize the camtyjudge,orthecoMtycluditoronbehalfofthecountyjudge,torequirethccounty p. 1907 Ms. Carole Wayland - Page 7 (DM-3.57) attorney to submit a budget for use of the county attorney’s fee fbnd for the upwmbig tisclllyear. Comparing artide 102.007 with article 59.06(d) &her bolsters our conch&on. At-tide 59.06 M~~.~Ics, in spdfied drwntstance~, a special fbnd in the county treasury intO which a COWQ,district, or criminal district attorney must deposit proceeds from the sale of seized or forfeited contraband. Code Crim. Proc. art. 59.06@). (c)(l). While the UtOrney representing the state is the administrator of the special fund, see id art. 59.06(a), article 59.06(d) expressly precludes the attorney from atpending the proweds unless the attorney previously has “submitted to the wmmissioners wurt” -a budget for the expeaditun of the proweds.” See Attorney General Opinion DM-246 (1993) at S-6 (stating that article 59.06(d) requires only that attorney submit budget for v of prowe& county wmmissioners cotut may not evaluate such budget). Clearly, the legislature wuld have enacted a similarrequirement for the expenditure of limds wkcted pursmmt to artide 102.007 of the Code of CriminalProcedure, but it has chosen not to. For us to impose such a requirement here would be inappropriate. We do not believe our wnchtsion will hsrm the county’s budgeting process in any way. Section 111.094(b)(S) of the Local Government Code stipulates that the. budget nut estbate revenues su@ient to cover the county’s proposed expenditures. Indeed, thepurposeofarequesttoawuntyofficertosubtnitastatetnentofacpeaditunsor cbargestheofficaintendstoincurinthenaafiscalyeargw~ybtoaidthecounty judge, and subsequently the county wmmissioners wurt, “in wnsidering the amounts rsquiredforthe~corporateobjcctsfor~chfundssbouldbeappropriated.” 20 C.J.S. Q 200.at430(1990). As we have suggested previously, the county wmmissioners court may not use expenditures from the iimd to reduce county appropriations to the wunty attorney’s office. See Attorney General Opiion JM-313 (1985) at 9. Thus quiring the camty attorney to submit a budget for the wunty attorney’s fee fiuul for the upwming tlscal year sems no practical purpose. We fiutha conclude that section 114.002 of the Local Govemtnent Code does not authotize a wtmty auditor to require the county attorney to report his or her projection of revenues and expenditures for the fund for the succeeding Sscal year. Section 114.002(2)(A) rewires the wunty auditor to establish the manner in which a wunty official annwIly must report “office fees wkted and disbursed.” (Emphasis added.) Section 114.002(2)(A) clearly refers to office fees the county official has, during the past year, rw&ed and expended. We cannot construe such plain hquage to author& a county auditor to rewire of a county officialprojections of amounts to be collected and t0 be disbursed in the fbture. p. 1908 Ms. Carole Wayland - Page 8 (DM-357) We do not Maui to suggest that the wunty attorney may not be. held awowtsble for sny misuse cb the wunty attorney’s fee fund. To the contrary. the wunty attorney is acwwtable for the proper use of the fbnd. See Attorney Genaal Opiions I?+%7 (1988) at 2, N-632 (1987) at 2-3, MW-584 (1982) at 3, MW-188 (1980). The auditor is autho-to oversee the county attorney’s books and records regarding the fbnd.* See Local Gov’t Code Q112.006(a). Morwva, the county auditor is requirad, at least annually, to ‘Yidiyexamine”the county attorney’s aw~unts.~ See id.8 115.003S(b).~” The county attorney must file fdl wwssaty reports wnceming the receipt and expenditure of monies to the iimd (&a the wunty attorney has received or expended the money). See id. 56 114.041. .042, .045. Fiiy, ss we have suggested previously, the wuoty attorney must administa the fimd in accordance with any accounting and control prowdurcs pmsaii by the wunty auditor. See Attorney General Opinions J&%7 (1988) at 2, Jh4-632 (1987) at 2-3, LAW-584(1982) at 3, MW-188 (1980). p. 1909 Ms. Carole Wayland - Page 9 (DM-357) SUMMARY The wunty attomey’s fee fund, awumulatad pursuant to article 102.007 of the Code of Criminsl Procedure, is wholly outside of the wunty budgeting process. The county judge, or the wunty auditor on behalf of the wunty judge, may not require the county attorney to submit a budget for use of the county attorney’s fee fund for the upcoming fi3cslyear. Section 114.002(2)(A) of the Local Government Code authorizes a wunty auditor to establishthe manner in which a wunty 05dal must report office fees the 05cisl received and expended in the past. The plain language of section 114.002(2)(A) does not pemdt a county auditor to require a county 05cial to project amounts the officialwill wkct and will disburse in the tkture. DAN MORALES Attomey General of Texas JORGE VEGA F~As&antAttom9Gweral SARAH J. sHIluEY chir, opiion cJanminee Frepsmd by Kymberly K. Oltrogge As&ant Attorney General p. 1910