Untitled Texas Attorney General Opinion

THE ATJX$RNEY GENERAL OF Tr(=XAS Honorable Joe Resweber Ovlnlon No., M- 299 County Attorney of Harris County Re: Authority of the County Auditor Harris County Courthou'se to draw and issue checks or Houston, Texas 77002 warrants in. payment of the salaries of district, county, and precinct officers of a Dear Mr. Resweber: county, and related questions. The County Clerk of Harris County, Texas has wrltten you as follows: "This letter I! to request you to obtain an Attorney General's Opinion from the Attorney General of Texas on three questions concerning the pre-emptory and arbitrary usurpation by the County Auditor of Harris County of part of my constitutional and statutory authority, duties, and responslbllltles as County Clerk; plus, the very real possibility of the usurpation of ad- ditional authority, duties and responsibilities as the County Auditor's computer complex Is ln- creased In size. "1 . To give you the background for my request I submit the following ln- formation: "(a) For many years prior to Jan- uary 1, 1967, district, county and precinct officers of Harris County, (of which I am one) operated their offices In accordance with one or more statutes enacted by the Texas Legislature and Identified by the following articles of Vernon's An- notated Civil Statutes of Texas: 1617; 1643; 1656a; 1940; 1941; 1942; 1943; 1944; 1945. 2344; 2345; 2349; 3912e, Sec. lg(lj; 3912e, Sec. 19(m); g;p-4; 6591; 6593; 65%‘; 6599; and i! * Also, relating thereto are: Op. Atty. Gen., 1948, No. V-711; -1447- Ron. Joe Resweber, page 2 (M-299) Op. Atty. Gen., 1961, No. wW-1107. I$r;Wv& Colqultt (Clv.App. 1915j ; Huntress va. State ex rel Todd ? Clv.App. 1936) 88 SW2d 636; Callaghan, County Judge, v. Sall~lway, 23 SW 837. “(b) In the early part of 1967, the County Auditor of Harris County pre-emptorlly and arbltra- rlly usurped and took over part of the statutory duties, preroga- tives and responslblllties of the district, county and precinct offl- cers of Harris County (of which I am one) by drawing or Issuing checks or warrants for the ~dlsbursement of funds In payment of expenses of the district, county and precinct offl- cers, of Harris County, (of which I am one) when such checks or war- rants are required, by one or more of the authorities cited In sub- paragraph l(a) above, to be Issued by each district, county or pre- . . . . ..a._ .. .. ..,. . clnct officer for the payment of expenses of such officer as authorl- zed by law. “(c) On January 1, 1968, the County Auditor of Harris County pre- emptorlly and arbitrarily usurped and took over an additional part of the statutory duties, prerogatives and resppnslbllltles of the district, county and precinct officers of Harris County (of which I am one) by drawing or Issuing checks or warrants in payment of the salaries of the district, county and precinct officers of Harris County, (of which I am one) and of the salaries of the deputies and employees of such district, county and precinct officers when such checks or warrants are required, by one or more of the authorities cited In sub-paragraph l(a) above, to be -1448- Honorable Joe Resweber, page 3 (M-299 1 Issued by each district, county or precinct officer for his deputies and employees. The County Auditor of Harris County has cited, as his authority for his actions, an order passed by the Commissioners' Court of Harris County on December 18, 1967, and recorded In Volume 65, page 427, of the Minutes of the Com- missioners' Court, a certified copy of-which order Is attached to this letter as an exhlblt. "(d) Presently no check or warrant Issued or drawn on bank accounts of Harris County has the signature of any Issuing officer or Issuing offlcla,l on It. Each check or war- rant only has on It the certificate of the County Clerk that the check or warrant has been approved for payment by the Commissioners' Court; the certificate of the County Audl- tor approving It for payment; and authorization of the County Treasurer for said check or warrant to be paid from a designated bank account of Harris County. See, Op. Atty.Gen., 1342, No. 0-4462; also Op. Atty.Gen., 1945, No. O-6613. "(e) The publicly announced long range objectives of the sponsors of the present activity of the County Auditor of Harris County Is to have all of the duties of all district, county and precinct officers which can be performed by computers to be performed by the County Auditor's Central Computer Complex. In spite of several publli: disclaimers by the sponsors that the present com- puter operations of several county officers, Including the County Clerk, are not Included In future plans, the actual Intent of requlr- lng all district, county and precinct officers to turn their records keep- ing over to the County Auditor - with -.1449- I Hon. Joe Resweber, page 4 (M-299) or wlthqut statutory authority - Is disclosed In the manipulations In the 1968 budget and other “behlnd- the-scenes”’ activities of the iponsors. “(f) The County Clerks of Texas are required by statute and by appellate decisions to record, to index and to keep their records in their offices by one or more of the following: “(1) ,Artlcles 1940, 1941, 1942,. 1943, 1944, 1945, 2344, 7345, 6591, 6593, 6597, and 6593, VACS, Texas; and, “(2) Relating thereto .are; Myers v. Colqultt (Clv.App. 1915) 173 SW 993; Vernon’s Annotated Rules Clvl1 Procedure Rule 25, 26, and 656; and Probate Code Par. 16 and 17, VACS, Texas. “(g) The County Clerks of Texas are subject to severe penalties for fall- ure or refusal to properly Index, pr to properly record, Instruments of writing: Art. 6652, VACS,“Texas.. . “‘.. ” “2. Eased on the Information furnished In sub-paragraphs l(a) thru l(g) hereln- above, please obtain an Attorney General’s Opinion on the following Inquiries: “(a) Can the district, county and precinct officers (of which I am one) Issue checks or warrants for the disbursement of funds In pay- ment of the salaries and other . expenses of their respective of- flees? “(b) If the answer to the above question Is In the affirmative, can the Commissioner’s Court dl- rect the County Auditor to Issue such checks or warrants and ther%by deprive the district, county and precinct officers (of whlch,iI am one) ’ - 1450- Hon. Joe Resweber, Page 5 (M-299) of such authority? “(c) Can the County Auditor take over and perform the statutory duties of the County Clerk relating to the mak- ing and keeping of records and Indexes by the use of a central computer or any other means; or should the same be performed by the County Clerk?” A. Article 1656a, Vernon’s Civil Statutes, provides, In part, as follows: “All of the fees, commissions, funds, and monies herein referred to shall be turned over to the County Treasurer by such officer as col- lected, and such money shall be deposited In the county depository In a ,special fund to the credit of such officer land draw Interest for the benefit of the county, which funds, when so deposited In such depository, shall be se- cured by the bond of such depository. There - after the~offlcer may draw checks on they preasurer to disburse said funds. In payment ,.of salaries and expenses authorized by law or in payment to the county or to the persons, fIrmsA or corporations to whom said funds may belong. (Emphasis added) Section 19 of Article 3912e, Vernon’s Civil Statutes, like Article 1656a, applies to all counties having a population In excess of 190,000, and provides, In part, as follows: “(I) There shall be created a fund for each officer affect;d by the provisions hereof to be known as the Salary Fund of County, Texas’ (Insert the title of the officer affected and the name of the county) and such fund shall be kept sep- arate and apart from all other county funds and shall be held and disbursed for the pur- pose of paying the salary of such officer, the salaries of his deputies, assistants, clerks, stenographers, and Investigators who are authorized to draw a salary from said fund under the provisions of this Section and to pay -14X- Honorable Joe Resweber, page 6 (M-299) the authcrlze~? and approved expenses of hlsof- flee. Such fx~~ sha.;i ix deposited In the county depGs3tGry and shall be protected to the same extent, and draw the szme Interest, as other county funds. The Commlss:ocers' Court of each county affected by the provisions of this Sec- tion, at d.ts first regular meeting In January of each calendar year, may determ'ne, by order made and entered In ~the mlr.ut.es of said court, that ail i'ees, costs, compensation, salaries, etc., nrci'ided for in this Se:ctlon, shall be paid Into and drawn from the general fund of such cou:liy; in which event e&ch reference In this Se-tJ.cn to a salary fund shall be read as and lnt:.rpreted to be 'General Fund'. ***** case, such claim shall, state such case. All ~such claims shali be subject to the auditof &he county auoctor; and If It appears that any ‘item of such expense was not incurred by such officer, or such Item was not a.necessary ex- pense of office, or such claim Is Incorrect or unlawful, such Item shall be by .such auditor, rejected, In which case tne correctness, legal- ‘its. or necessity of such Item may be ad.Iudl- cat&d ln~ any Co&t of competent ,jurlsdlctlon. Provided, the Assessor and Collector of Taxes shall be authorized In like manner annually to -1452- Honorable Joe Resweber, page 7 (M-299) Incur and pay for Insurance premiums ln'a reason- able sum for pollcles to carry Insurance against loss of funds by fire, burglary, or theft. "At the close of each month of the tenure of his office, each officer named herein shall make as a art of the record required by Sub- section (0 7 of this Section an Itemized and sworn statement of all~expense claims paid dur- ing said month. And said report shall give the name, position, and amount paid to each author- ized employee of such officer. Such deputies, assistants, clerks, or other employees as well as expenses shall be paid from the Officers' Salary Fund In cases In which the officer Is on a salary basis, and from fees earned and collected by such officer In all cases In which the officer Is compensated on a basis of fees earned by him. +**** "(m) All moneys drawn from said Officers' Salary Fund shall be paid out only on warrants approved by the county auditor. No warrants shall be drawn on said fund In favor of any person Indebted to the State, county, or to said fund or In favor of his agent or assignee until such debt Is paid, when notice of such Indebtedness has been filed with the county auditor. . . .W (Emphasis added.) Article 3912e-4, Vernon's Civil Statutes, which applies to counties having a population of more than 500KOO0, also pro- vides that each district, county and precinct officer shall be. entitled to file claims for and Issue warrants In payment of all actual and necessary expenses Incurred by them In the conduct of their offices. Article 1656a, as above noted, authorizes the various district, county and precinct officers to 'draw checks on then County Treasurer" for the purposes speclflea; and Article $912e, 19 (l), as heretofore quoted, authorizes such officers to Issue warrants" for the specified purposes. Under the foregoing statutes, It Is clear that the County Clerk Is authorized to ‘Issue’ or 'draw" county 'warrants" -1453- Honorable Joe Rcsweber, page 8 (M-237) for the payment of the salaries of hls deputies and other em- ployees, and for the payment of the actual and necessary expenses authorized by law and incurred by him in thee conduct of his office. B. The Supreme Court of Texas in Canales v. Laughlin, 147 Tex. 169, 214 S.W.2d 451, 453 (1348), made the following pertinent holding applicable to the question you have asked: "The Constitution does not confer on the ccmmissloners courts 'general author- ity over the county business’ and such courts can exercise only such powers as the Constitution Itself or the statutes have ‘specifically conferred upon them.’ While the commissioners courts have a'broad discretion In exercising powers expressly conferred cn them, nevertheless the legal basis for any action by any such court must be ultimately found In the Constitution or the statutes. ” We find no constitutional, statutory or judicial authority which would give the Commissioners Court the power to deprive the County Clerk of the authority to issue warrants for the payment of salaries and expenses (as discussed above) under Articles 1656a, 3912e, and 3912e-4. However, It should be noted that the Order of the Harris County Commissioners Court (a copy of which was attached to the opin:on District. ” Furthermore, the order does not purport to deprive the County Clerk of his authority under said Articles 1656a and 3912e to issue warrants in payment of the salaries of his deputies. In this connection, your attention is invited to Attorney General Opinion Number c-2i8 (1964), wherein It was held that the follow- ing acts are proper functions of the County Auditor's Office: "processing payrolls, printing checks, registers and various reports; cash claims, warrants, registers and reports, budget ap- propriations, expendiiures, encumbrances controls and reports. (Emphasis added.! - 1454- Honorable Joe Resweber, page 9 (M-299) .The Order of the Commissioners Court does not deprive the County Clerk of his authority under Artic1e.s 1656a Andy 3912e to issue county warrants in payment of the salaries of his deputies and other employees; Andyunder the above mentioned,ruling of the Attorney General, followed by this office, it is proper for the County Auditor's Office to process payrolls and print county warrants and checks. You should also be advised that'under the terms of Article 2354, Vernon's Civil Statutes; the warrants must be endorsed by the County Treasurer and counter~signed by the County Auditor, as provided in Article 1661, Vernon's Civil Statutes. Attorney General Opinion No. 0-4462 (1942). C. Articles 1941, 1942, 1943, 1944, 1945, 2345, 6593, 6597 and 6599, Vernon's Civil Statutes, require the County Clerk to keep certain records and indexes. We find no au- thorization for the performance of any of these duties of the County Clerk to be undertaken by the County Auditor; SUMMARY (1) The County Clerk is authorized by Articles 1565a, 3912e and 3912e-4, Vernon's Civil Statutes, to ‘Issue” county warrants for 'the payment of the salaries of his dep- uties and for the payment of the actual and necessary expenses authorized by law and in- curred by him in the conduct of his office. (2) The Commissioners Court cannot de- prive the County Clerk of his authority to Issue county warrants as mentioned in (1) above, but it would appear proper for the County Auditor to print county warrants and tomprocess payrolls. Also, the warrants must be endorsed by the County Treasurer and countersigned by the County Auditor'. (3) We find no authorization for the performance by the County Auditor of those duties imposed upon the Count Clerk by Articles 1940, 1941, 1942, 19t 3, 1944, 1945, 2344, 2345, 6593, 65%' and 6599, Vernon's Civil Statutes. truly yours, General' of Texas Honorable Joe Resweber, page 10 (M-299) Prepared by Jack Sparks Assistant Attorney General APPROVED: OPINION COMMITTEE Hawthorne Phillips, Chairman Kerns Taylor, Co-Chairman John Banks Louis Neumann Ray McGregor Jay Floyd A. J. CARUBBI, JR. Executive Assistant -1456-