THE ATTORNEY GENERAL
OF TEXAS
July 8, 1987
Eonorable Chet Brooks opinion No. JM-740
Chairman
Eealth and Human Services Committee Re: Selection of a county
Texas State Senate auditor in Harris County,
P. 0. Box 12068 and related questions
Austin, Texas 78711
Dear Senator Brooks:
You ask about the validity of the selection of a Harris County
Auditor under article 1645a-10, V.T.C.S.. when the election is by less
than two-thirds vote of the district judges having jurisdiction in the
county. You state this problem has arisen when a number of the
district judges have failed to attend a meeting scheduled for the
selection of an auditor.
P
The situation which gives rise to your question is stated by you
as follows:
In December 1986, at a meeting called for the
purpose of selecting the Harris County auditor, 23
of the 59 district judges having jurisdiction in
the county at that time net to consider the
appointment. The vote at the meeting was 27 for
and 2 against the reappointment of the acting
county auditor. There were no other nominations
for the position.
You ask the following questions:
1. When selected by the method described
above, can the county auditor lawfully assume the
duties of the office without receiving a vote of
two-thirds of the district judges in the county?
2. What is the method provided by law for
selection of an auditor in a county with over 2
million In population when no nominee receives the
vote of two-thirds of that county’s judges?
3. Are meetings held pursuant to article
P 1645a-10 governed by the Open Meeting law of this
state?
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Bonorable Chet Brooks - Page 2 (m-740)
In December 1986 the method for selecting an auditor in counties
having a population of 2,000,OOO or more was controlled by article
1645a-10, V.T.C.S., which provided in relevant part:
The office of county auditor shall be filled by
the candidate receiving a two-thirds vote of the
district judges having jurisdiction in the county
at a meeting held for that purpose and the vote of
a district judge shall not be counted unless he is
present at the meeting.
V.T.C.S. art. 1645a-10. 81.
In light of the fact that there was not a two-thirds vote of the
district judges having jurisdiction in the county you question whether
the nominee could assume the office of auditor for Harris County.
Under the scenario you have given it is our opinion that there was not
a valid selection of an auditor since two thirds of the district
judges in the county did not vote for the nominee. Thus, the person
selected could not lawfully assume the duties of the office. However,
we have been furnished with a copy of au order dated December 9, 1986
which reflects that at a meeting held on that date the nominee
received the votes of 54 of the judges of the district courts having
jurisdiction inI Harris County, clearly more than the required
two-thirds vote.
1. The order of December 9. 1986 reflects:
On the 9th day of December, 1986. the undersigned
Judges of the District Courts having jurisdiction in Harris
County, Texas, assembled pursuant to a special meeting
called to elect a County Auditor for Harris County, Texas,
under the provisions of Article 1645a-10 V.C.S. as amended.
Upon motion of Judge Blanton, seconded by Judge
Cartwright, duly put and carried, IT IS ORDERED that J. F.
Flack be, and he is hereby, appointed as County Auditor of
Earris County, Texas for a term beginning January 1, 1987
and ending December 31, 1988, and until his successor is
appointed and shall have qualified. [salary provision
omitted]
The Clerk of the District Courts shall record this
order in the Minutes of the District Courts and shall
certify it to the Commissioners Court of Earris County,
Texas, for recording in its Minutes and for such further
orders as are required by law.
The order is followed by a listing of the 59 district courts
having jurisdiction in Harris County with 54 of the judges affixing
their signatures above their respective courts.
p. 3444
F
Honorable Chet Brooks - Page 3 (JM-740)
The present method for selecting an auditor in Harris County is
addressed by Senate Bill No. 914, Acts 1987, 70th Leg., ch. 192,
signed by Governor Clement8 on May 20. 1987 and contains the proviso
“that this Act take effect and be in force from and after Its passage,
and It is so enacted.” Article 1645a-10 was amended by Senate Bill
No. 914 to read as follows (new language is underlined):
Sec. 1. In any county having a population of
2,000,000 or more, according to the last preceding
federal census, the district judges having juris-
diction in the county, shall nominate candidates
for the office of county auditor. Each judge may
nominate as many candidates as he wishes. - The
district judges shall hold a meeting for the
purpose of electing a county auditor. The county
auditor shall be elected by a two-thirds vote of
the district judges who are present and voting at
that meeting, providing that at least a majority
of the district judges are present.
You also ask if meetings held pursuant to article 1645a-10 are
governed by the Open Meetings Act of this state. In Attorney General
Opinion .I&340 (1985), it was noted that prior opinions had esta-
blished that an entity will be covered by the Open Meetings Act if it
C
is a “goveromental body” which holds “meetings” as those terms are
defined in the act. Section 1 of article 6252-17, V.T.C.S., defines
“meeting” and “governmental body.” It provides:
(a) ‘Meeting’ means any deliberation between.a
quorum of members of a governmental body at which
any public business or public policy over which
the governmental body has supervision or control
is discussed or considered, or at which any formal
action is taken. It shall not be construed that
the intent of this definition is to prohibit the
gathering of members of the governmental body in
numbers of a quorum or more for social functions
unrelated to the public business which Is con-
ducted by the body or for attendance of regional,
state, or national conventions or workshops as
long as no formal action is taken and there is no
deliberation of public business which will appear
on the agenda of the respective body.
(cl ‘Governmanta body’ means any board,
commission. department, committee, or agency
within the executive or legislative department of
the state, which is under the direction of one or
more elected or appointed members; and every
Commissioners Court and city council in the state,
and every deliberative body having rule-making or
quasi-judicial power and classified as a
p. 3445
Eonorable Chet Brooks - Page 4 (JM-740)
departmant, agency, or political subdivision of a
county or city; and the board of trustees of every
school district, and every county board of school
trustees and county board of education; and the
governing board of every special district
heretofore or hereafter created by law.
A meeting of the district judges of Earris County for the purpose
of selecting a county auditor does not constitute a board, commission.
department. committee, or agency within the executive or legislative
department of the state nor is it a department, agency, or political
subdivision of a county or city or the governing board of a special
district created by law. See Attorney General Opinion MW-28 (1979).
It is our opinion that a Sting of the district judges of Harris
County for the purpose of selecting a county auditor is not a meeting
of a "governmental body" as that term is defined in section l(c) of
article 6252-17 and does not come within the scope of the Open
Meetings Act.
SUMMARY
Prior to the amendment of article 1645a-10,
V.T.C.S., by the 70th Legislature, the office of
county auditor of Harris County was filled by the
candidate receivtng a two-thirds vote of all the
district judges having jurisdiction in the county.
The amendment to article 1645a-10 passed by the
70th Legislature no longer requires a two-thirds
vote of all the district judges of Harris County,
but instead provides that the district judges
having jurisdiction in Earris County shall elect
the county auditor by a two-thirds vote of the
district judges who are present and voting at the
meeting, providing that at least a majority of the
district judges are present at such meeting.
Senate Bill 914. Acts 1987, 70th Leg., ch. 192,
signed by Governor Clement8 on Hay 20, 1987
(effective upon enactment). No alternate method
is provided for selection of an auditor in Harris
County. A meeting of the. district judges of
Harris County for the purpose of selecting a
county auditor, is not a meeting of a "govern-
mental body" as that term is defined in section
l(c) of article 6252-17, V.T.C.S.. and does not
come within the scope of the Open Meetings Act.
/;jgb
Attorney General of Texas
p. 3446
Honorable Chet Brooks - Page 5 (JM-740)
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STBARLCl
Special Assistant Attorney General
RICK GILPIN
Chairman. Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 3447