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;
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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

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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
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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) ’
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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
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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

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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"
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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.!

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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

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