Untitled Texas Attorney General Opinion

Opinion No. JM-1249 has been withdrawn.
 .

.n>xx.t- November 29, 1990
.,rToRsml- aPNRRAL

Honorable Becky B. McPherson Opinion No. JR-1249
District Attorney
Ployd County Re: Supervisory authority of
110th Judicial District a district court over a com-
Floyd County Courthoune missioners court with regard
Floydada, Texas 79235 to the transfer of funds
from a county attorney to a
district attorney (RQ-2068)

Dear Ms. McPherson:

You have reguested our opinion about a dispute between
your office and the district judge relating to your agree-
ment with Floyd County to act as county attorney pro tern.
For purposes of this opinion, we will discuss the law
applicable to the facts as you have presented them.

In September 1969, the county attorney of Floyd County
retired, and after a diligent search, the commissioners
court was unable to find a qualified successor. You, as
district attorney for a four-county district, then made a
written proposal to the commissioners court that you would
undertake misdemeanor proeecution responsibilities in
exchange for a monthly payment of $1750.00 plus an addition-
al amount of approximately $2165.00 per year to cover office
supplies, travel, and liability insurance. You specifically
agreed that no portion of this money would be used to
supplement your salary, but it could be applied to the
purchase of books and equipment, and to supplementation of
staff salaries. The commissioners court, in executive
session, adopted your proposal on October 23, 1969. Funds
paid to your office by the commissioners court were placed
with a Floydada bank in a segregated account in the name of
We&y UcPherson, District Attorney, County Trust Account.w
Each misdemeanor case you handled was accompanied by an
"order appointing special prosecutor," signed by the county
judge, pursuant to article 2.07 of the Code of Criminal
Procedure. You note that more than 100 such orders were
issued between October 1989 and July 1990.

p. 6653
Honorable Becky B. McPherson - Page 2 (JM-1249)

Subsequently, the Honorable David Cave, Judge of the
110th District Court, under date of June 20, 1990, issued an
"order appointing a special auditor."1

The order reads, in part:
This Court, pursuant to the powers vested
in 'it by the laws of the State of Texas
hereby appoints LGvE, HAYS C BlDSICX 2514 026.
Street, Suite 5, Lubbock, Texas 79423 to
perform a complete audit of all such monies
which were paid out of the Treasury of Floyd
County, Texas to the said Beckie McPherson,
including but not limited to the $1,750.00
per month which was paid over to her as
hereinabove set out.

All persons having access to or control
over any and all records, books, receipts,
bank statements or other financial documents
of whatsoever kind or nature are hereby
Ordered to prwide and make available for
audit, copying and inspection to the said
auditor at the places and times designated by
the said auditor.

The Auditor shall make much audit and
examination with all deliberate speed and
shall make a full and complete report to this
court.

If at any time during the performance of
such duties the auditor may need access to or
copieu of any documents or things and may
need Writs from this Court to procure any

1. Almost concurrently, two other incidents occurred:
On June 18, 1990, the commissioners court entered a nunc pro
tune order ratifying its actions of the previous October and
indicating, in writing, its agreement with your proposals:
and under date of June 29, 1990, Mr. Larry Craddock, General
Counsel for the Office of Comptroller, sent a letter to
Judge Cave which indicated that after reviewing relevant
documents, he was persuaded that you had not acted in any
way to preclude receipt of your state salary as district
attorney.

P. 6654
' Aonorable De&y 0. McPherson - Page 3 (JM-1249)

document or thing then he imp Wereby EElPoWERED
AND DIRECTED to employ the service8 of George
Thompson, Attorney at Law, Lubbock, Texas to
file and prosecute such Writs or Petitions as
the attorney may deem necessary and proper to
effect and carry out the audit, the subject
of this order.

On July 2, 1990, the mpecial auditor made an in-person
demand upon you for all financial records relating both to
the disputed funds and to funds received from the state.
You agreed to provide the former, but refused the latter on
the ground that such funds were not subject to commissioners
court mupervimion.

Also on July 2, 1990, Judge Cave issued a written order
to the county clerk of Floyd County, instructing her to
"turn over to . . . [the] District Clerk the tape record-
ings of the commissioners meeting held on October 23, 1990
for her to place in a safe deposit box for safe keeping."
The judge also demanded an opportunity to listen to the tape
recording.

You amk first about the propriety of the district
judge's order appointing a special auditor.2 Section 84.002
of the Local Government Code provides, in pertinent part:

(b) In a county with a population of less
than 10,000:

(1) the district judges may appoint a
county auditor if the judges determine that
the county*5 financial circumstances warrant
the appointment: and

(2) the district judge5 shall appoint a
county auditor if:

2. This office does not review judicial orders. m
Open Records Decision No. 415 (1984). In this case,
however. the iudae is actinu in an administrative caoacitv.
#S &* of Nat. , 141 -S.W.id
764 (Tex. Civ. App. - 1940), rev'd on the area , 146
S.W.2d 170 (Tex. 1941).

p. 6655
. Aonorable Becky B. McPherson - Page 4 (JM-1249)

(A) the oommismionerm court find5 that a
county auditor is necessary to oarry out
county business and enters an order in its
minutes stating the reason for this finding;

(B) the order is certified to the
district judges: and

(Cl the district judges find the reason
stated b the commissioners caurt to be good
end muff 1 cient.

Floyd County is a county with a population of less than
10,000.

Chapter 84 of the Local Government Code, when read as a
whole, make5 clear that the only authority conferred on a
district judge with regard to the appointment of an auditor
is to appoint an individual to fill the position of regular
county auditor. Section 04.003 speaks of the selection of
ma -5 as a county auditor; section 04.004 5pecifie5 a
*term of office5 of two years: and section 84.006 describes
the minimum gualificationm for the position in terns of 'Ia
ESBQD." (Emphasis added.) Nothing in chapter 64 or
elsewhere gives any indication that the legislature contem-
plated the appointment by a district judge of an auditing
firp rather than an individual, nor that it contemplated the
appointment of an auditor for the specific and limited
purposes set but in Judge Cave’s order of June 28, 1990.

Furthenuorm, Section 115.031 of the Local Government
Code pnen provide for specific purpose audits by ma disin-
terested, competent and expert public accountant.5 See als
Local Gov*t Code 95 115.041 (independent audit in count!
without office of county auditor), 115.042 (joint special
audits by counties of less than 25,000 population). Section
115.031, however, lodges the dimcretion'to employ a specific
purpose auditor squarely in the co~issioners court. The
district judge is not a part of this process.

Finally, it might be contended that the following
constitutional provision justifies the appointment under
consideration here:

The District Court shall have appellate
jurisdiction and general supervisory control
war the County com515510ner5 Court, with
much exceptions and under such regulations as
may be prescribed by law.

p. 6656
Honorable Wecky B. WcPhermon - Page 5 (JM-1249)

Tex. Conmt. a*. V, i 8.

In Attorney General Opinion JW-708 (1987), we maid that
a district court Way exercise "general supervisory control5
over the actions of a co55iSSiOner6 court only when a
lawsuit 15 brought in district court seeking rmview of the
commissioners aourt'm actions. The opinion noted that the
courts have Wade clear that the legislature has not wemtab-
limhed a procedure for invoking the general supervisory
control of dimtrict courts wer actions of commi5sioners
courts. * Saa SOOtt V. B, 292 S.W.td 324, 328 (Tex.
1956) 8 vd CO. V. Be Fregh
-t 506 S.W.Zd 931 (Tex. Civ. App. -
Tyler 1974, no writ): SS~ al5Q 1 G. Braden, m
ative
w 415-16 (1977). We conclude that the district judge
was without authority to appoint a speaial auditor in the
circummtances you describe.

You also ask whether the county is liable for charges
incurred by the county auditor. Since the appointment of
the auditor warn void, and the commissioners court had no
part in his appointment, we know of no legal basis to assess
any charges against the county for services performed by the
auditor.

You next ask whether the action of the district judge
in obtaining physical custody of the tape recordings of the
commi5sioners court executive session violated the Open
Xeetinas A&. article 6252-17. V.T.C.S. Section 2A of the
statuti prwides, in part: '

(a) In lieu of the requirements for main-
taining a certified agenda am provided in
Subsections (a), (b), and (c) of this sec-
tion, a governmental body may make a tape
recording of the proceedings which shall
include an announcement made by the presiding
officer at the beginning and end of the
meeting indicating the date and time.

(4 The certified agenda or tape shall be
available for in camera inspection by the
judge of a district court if litigation has
been initiated involving an alleged violation
of this Act. The court upon entry of a final
judgmeningy admit the ;;rti;At;eagenda '1;
tape evidence or
pa* . . . .

p. 6657
* Honorable Becky B. McPhermon - Page 6 (JM-1249)

(f) The overnmental body shall preserve
the certif 1 ed agenda or tape for at least two
yearm after the date of the meeting.

contemplate5 that a district judge ;D;
E$gg'g !;A oemera in5pection~ of the tape only
litigation has been initiated involving an alleged violation
of this Act.” Under the circumstances you describe, no such
litigation had been initiated at the time of the judge's
order of July 2, 1990. The ngovenmental body" that is the
subject of the tape is its proper custodian and is required
to preserve it "for at least two year8 after the date of the
meeting.*

The statute further provides that

0) No individual, corporation, or partner-
ship shall, without lawful authority, know-
ingly make public the certified agenda or
tape reaording of a meetfng or that po*ion
of a meeting that was closed under authority
of this Act.

Thus, it appears both that the district judge exceeded his
authority in taking possession of the tape and that the
county clerk acted in violation of subsection (h) in releas-
ing it to him. We note, however, #at subsection (j) could
provide an affirmative defense to the county clerk.

Your final guestion asks whether Judge Cave should
recuse himself in future litigation over these matters.
Since no litigation ham been initiated, we decline to
speculate about what possible course it might take, and in
accordance therewith, about the propriety of recusal.

BUMMARX
A district judge has no authority to
appoint a *special auditor" to conduct a
limited inguiryr his authority is limited to
the appointment of a regular county auditor
under the requisite ntatutory provisions,
chapter 84 of the Local Government Code.
district judge also lack5 the authorityA
absent pending litigation under the Ope;
Weetingr Act, article 6252-17, V.T.C.S., to
order a county clerk to turn over possession

p. 6658
* Honorable Secky B. McPherson - Page 7 (JM-1249)

of 5 tape recording of an executive 5e55ion
of a meeting of a commi55ioner5 court.

JIM MATTOX
Attorney General of Texas

MARY NNIJIER
First Amsimtant Attorney General

IOU x!cREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STRAKLEY
Special 'Umistant Attorney General

RBNEAHIcxs
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Asmimtant Attorney Genmral

p. 6659