THE ATTORNEY GENERAL
OF TEXAS
July 18, 1990
Honorable James Warren Smith, Jr. Opinion No. JM-1186
Frio County Attorney
P. 0. BOX V Re: Authority of a county
Pearsall, Texas 78061-1138 auditor to require con-
stables to submit
monthly report (RQ-1878;
Dear Mr. 'Smith:
YOU ask the following questions relative to the
authority of the county auditor to require constables to
submit monthly reports.
(1) May the Frio County Auditor require the
four Frio County Constables to provide a
monthly report . . . listing the civil pro-
cess instruments and criminal warrants that
they receive and the date that they served
them even though they do not collect fees or
moneys when serving these instruments?
(2) Will failure on the part of the
constables to fill out and turn in such
reports authorize the County Auditor to
withhold payment, to them of their monthly
mileage which has been approved and set by
Frio County Commissioners Court.
You advise that the county auditor has required the
county's four constables to report in writing all civil
process and criminal warrants they serve. You enclose a
monthly report form prepared by the auditor. The form
provides spaces for the constable to enter (1) date,
(2) style and notice of instrument, (3) date received, and
(4) date served. The form provides for the instrument to be
sworn and subscribed by the constable before a notary
public.
You state that the constables use their own vehicles in
discharging the duties of their office. They submit
separate monthly mileage reports logging the miles they
P. 6254
Honorable James Warren Smith, Jr. - Page 2 (JM-1186)
travel in the performance of their duties. The
commissioners court has fixed a sum for each mile traveled
by a constable in the discharge of official duties. YOU
relate that the constables feel that they should not be
required to prepare an additional report relating to the
service of each civil and criminal process they receive
since they do not collect any money or fee in the course of
serving such instruments.1
You advise that the auditor's position is that she has
the authority to require such a report under section 115.001
of the Local Government Code. Section 115.001 provides in
pertinent part:
The county auditor shall have continual
access to and shall examine and investigate
the correctness of:
(1) the books, accounts, reports, vouch-
ers, and other records of any officer.
Section 152.011 of the Local Government Code authorizes
the commissioners court to set the amount of compensation
and office and travel expenses for county and precinct
officials and employees paid wholly from county funds.
Attorney General Opinion JM-879 (1988) concluded that the
county auditor could not require documentation from members
of the commissioners court who receive fixed monthly travel
allowances. However, the opinion noted that the sum must be
fixed by the commissioners court at a figure that reasonably
relates to expenses actually incurred in the commissioners'
discharge of county business. Unlike the fixed monthly
travel allowance in Attorney General Opinion JM-879, the
commissioners court in your county has provided for a sum
per mile for the constables in the discharge of their
official duties.
1. Section 112.001 of the Local Government Code
authorizes the county auditor in counties with less than
190,000 population to adopt and enforce regulations that the
auditor considers necessary for the speedy and proper
collecting, checking, and accounting of funds that belong to
the county. Section 112.006 provides that the county
auditor has oversight of the records of an officer who is
required by law to receive or collect money that is intended
for the use of the county or that belongs to the county.
P. 6255
Honorable James Warren Smith, Jr. - Page 3 (JM-1186)
Section 113.064 of the Local Government Code concerns
approval of claims by the county auditor. Section 113.064
provides:
(a) In a county that has the office of
county auditor, each claim, bill, and account
against the county must be filed '
sufficient time for the auditor to exami::
and approve it before the meeting of the
commissioners court. Aclaim.
account mav not be allowed or naid until it
&4 been examined and annroved bv the
auditor.
(b) The auditor shall stamp each approved
claim, bill, or ,account. If the auditor
considers it necessary, the auditor mav
reauire
. . that a clqgm. bill. or account be
errfled bv an affidavit indicatina 1ts
correctness.
(c) The auditor may administer oaths for
the purposes of this section. (Emphasis
added.)
Section 113.065 of the Local Government Code provides
that the "county auditor may not audit or approve a claim
unless the claim was incurred as provided by law.n The
. county auditor has .the responsibility, before approving a
claim against the county, to determine whether it strictly
complies with county finances. Smith McC y 533 S.W.2d
457 (Tex. Civ. App. - Dallas 1976, writvdism'z):
The matter of whether the auditor * under
ministerial duty to approve salary payments o&ed by thz
commissioners court was considered by Attorney General
Opinion JM-1099 (1989). It was noted that the most recent
group of opinions of this office has concluded that where a
person's right to a salary is established as a matter of
law, the auditor is under a ministerial duty to approve the
claim. m Attorney General Opinion JM-986 (1988). Under
your scenario the auditor is dependent on the correctness of
an unsubstantiated claim for miles traveled.
Attorney General Opinion JM-1099 at 6 stated that while
"it is arguable that the county auditor has discretion to
approve or disapprove salary payments pursuant to section
113.064 of the Local Government Code, we believe the auditor
nevertheless may require county officials to supply basic
P. 6256
Honorable James Warren Smith, Jr. - Page 4 (JM-1186)
information necessary to the accomplishment of other
duties." However, we are not here addressing a question of
salary payments.
The auditor has the responsibility for establishing
financial procedures and internal accounting controls for
the county. Attorney General Opinion W-579 (1970). We
believe that a county auditor may require a county officer
or employee to substantiate a claim with documentation that
the claimed mileage for which he is seeking payment was in
the conduct of the official business. However, as was
pointed out in Attorney General Opinion JM-1099, it is not
generally within the province of the auditor to ensure that
county officers and employees are complying with the duties
of their office or employment imposed on them by law where
such efforts are not necessary to the accomplishment of the
auditor's statutory duties.
Under the scenario you have submitted, the auditor has
instituted a reporting requirement for the constables rather
than examining the correctness of an officer's or an
employee's records under section 115.001. We do not believe
that section 115.001 authorizes the auditor to require a
reporting system solely for the purpose of determining
whether an officer or employee is discharging the duties of
his office.
While the form in question that you have submitted may
bear some relevance to mileage traveled in performance of
official duties, in our opinion it falls far short of
substantiating a claim. A report that only reflects the
date process was received, the identity of the instrument,
and the date served reveals nothing more than the fact that
the instrument was served and the lapse of time between
receipt and service. While such information may be relevant
to the determination of the validity of a claim for mileage
reimbursement, it does not, standing alone, supply the
auditor with enough information to approve the claim. At
most, the form in question only shows that the constable is
performing duties imposed on his office by law.
heretofore noted, it is not a proper function of the count;
auditor to ensure that a county officer or employee is
performing the duties of his office or employment unless the
inquiry is in furtherance of a discrete statutory duty of
the auditor. The form you have supplied does not accomplish
this. A different conclusion might be indicated if the form
prescribed by the auditor required additional information
reflecting the place of service and the mileage traveled in
serving each instrument.
P. 6257
Honorable James Warren Smith, Jr. - Page 5 (JM-1186)
.
We find it unnecessary to answer your second question
in light of our disposition of the first question.
SUMMARY
The county auditor may not require county
constables to provide a monthly report
listing only the identity of civil and
criminal instruments they receive, the date
of their receipt by the constables, and the
date they are served.
Ldzb
JIM MATTOX
Attorney General of Texas
MARYXRLLRR
First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAXUY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 6258