.. .
THE ORNEY GENE
OF WAS
Mr. W. G. Walley, Jr. Opinion No. WW-1086
Actina Criminal District Attornev
JeffeFson County Re: Authority of a District
Beaumont, Texas Attorney or a Grand Jury
to employ a public account-
ant to audit county records,
municipal records, records
of private corporations or
Dear Mr. Walley: individuals.
You have asked the following questions:
1. Does the District Attorney and/or Grand Jury have authority
to employ a public accountant to audit
A. Records of the County;
B. Records of incorporated municipalities;
c. Records of private corporations; and/or
D. Records of private individuals?
2. If so, from what fund should these services be paid?
It is clearly the duty of the grand jury to inquire into all
alleged felony violations of the law, Article 3S1, Vernon's Code of
Criminal Procedure. Generally investigations are made for the grand
jury by the local law enforcement officials, mainly the Sheriff's
office, local police officers, constables and the District Attorney's
office. The Department of Public Safety also provides assistance for
the grand jury when requested. There is no specific statutory au-
thority giving the grand jury power to expend county funds for the
purpose of employing an accountant, since said function is generally
handled for the grand jury by other officials who have such funds
available; however, if the grand jury has funds pursuant to Section 3
of Article 637, Vernon's Penal Code, the grand jury is clearly au-
thorized to expend said funds for the purpose of investigating viola-
tions of any of the provisions of the Penal Code. Section 3 of Article
637 of Vernon's Penal Code provides:
..
Mr. W. G. Walley, Jr., Page 2 (~~-1086)
"Section 3. If upon a hearing of the matter
referred to in Article 636, Penal Code of Texas, the
Justice of the Peace, County Judge or District Judge
before whom the cause is pending, shall determine that
the property seized is a gaming table, bank or gambling
paraphernalia and equipment per se, or if the Justice of
the Peace, County Judge or District Judge shall determine
that the same, or any part thereof, was in fact used as
equipment or paraphernalia,for a gambling house or was
being used for gaming purposes, then any money or coins
seized in or with said equipment or paraphernalia shall,
by order of the Court, be declared confiscated, and the
Court shall cause the same to be delivered to the State
of Texas or any political subdivision thereof, or to any
State institution to be used by it for its own use and
benefit, or the Court may in its discretion order such
money or coins to be delivered to the Grand Jury of ,the
Countv in which such eauioment or DaraDhernalia was seized.
to be-used by said Grand Jurv for the purpose of investi- ~-
gating the violations of the naming laws of this State or
for the purpose of investipating violations of any of the
provisions of the Penal Code of this State. At the end of
the term of each Grand Jurv and before the discharne of the
same, the Grand Jury shall-report to the District judge
impanelling the same the amount of money received under the
provisions of this Section and an accounting of all funds
expended, and the balance of such funds, if any, shall be
turned over to the Clerk of said District Court, to be held
by said Clerk until the next Grand Jury is impanelled, at
which time such money will be turned over and delivered to
such succeeding Grand Jury." (Emphasis added.)
It has been contended that Section 24 ~of Article 16 of the
Constitution of the State of Texas would prohibit the use of forfeitures
for any use other than for laying out and working public roads and the
building of bridges. Section 24 reads:
"The Legislature shall make provision for laying
out and working public roads, for the building of bridges,
and for utilizing fines, forfeitures, and convict labor
for all these purposes."
This office has held that when funds derived under Article 636, 637,
Vernon's Penal Code, are turned over to the Commissioners Court, they
must go into the road and bridge fund of the county. Attorney General's
Opinion V-469. This opinion based its conclusion upon examination of
Section 24 of Article 16 of the Constitution, and Articss 1626 and
1628, Vernon's Civil Statutes. Since Articles1626 and 1628 clearly
cover the problem involved, the discussion as to the applicability of
Mr. W. G. Walley, Jr., Page 3 (W-1086)
of Section 25 of Article 16 of the Constitution was surplusage.
The view expressed in Attorn,eyGeneral's Opinion V-469 was in line
with Attorney General's Opinion 0-6805.
Section 24 of Article 16 should not be construed as requiring
that all fines, forfeitures and uses of convict labor be designated
for use upon public roads and bridges only.
It has been the long standing policy of this State to utilize
fines, forfeitures and convict labor for purposes other than work on
the public roads and bridges.
The Texas Liquor Control Act by Article 666-30, Vernon's Penal
Code, provides that forfeitures be used by the Texas Liquor Control
Board in the operation of that Board. Fines collected for violation
of highway laws are not set aside for the exclusive purpose of main-
taining roads and bridges. See Article 6701b, Section 144, Vernon's
Civil Statutes.
The Supreme Court in H. & T. Ry. v. Herrin Brothers, 63 Tex.
256 (18851. held that Section 24 of Article 16 of the Constitution
referred-to such fines and forfeitures as 'underthe law may'inure to
the public. This holding would include the civil fines and forfeitures
provided in our Anti-Trust Laws and the Business Corporation Act.
Civil fines and penalties collected for violation of the Texas
Business Corporation Act, the Texas ~Anti-TrustLaws and other laws of
this nature are not put into the road and bridge fund of any county
and are not expended for the roads and bridges of the State, but are
appropriated for other purposes.
The "Interpretive Commentary" contained in Vernon's Constitution
of the State of Texas, Annotated under Section 24, Article 16, indi-
cates that at the time the constitutional provision under discussion
was passed, the prison population has trebled in a single year and there
was a great need for employment of convicts and that the consitutional
provision was passed to provide "additional" employment for convicts.
This provision has never been interpreted to mean that convicts could
not be used for other purposes. See Article 674, Vernon's Code of
Criminal Procedure and Article 6864, Vernon's Civil Statutes.
It is clear from the historical background of Section 24,
Article 16, that said section was intended to grant the Legislature
additional powers, and was not intended to limit the powers of the
Legislature to utlize fines, forfeitures and convict labor for other
purposes.+
For further discussion on this point see Attorney General's
Opinion No. WW-1079.
. -
Mr. W. G. Walley, Jr., Page 4 (W-1086)
In addition to the above funds which are available to the grand
jury, the grand jury is also authorized to request that the District
Court appoint a committee of three to examine the finances of the county.
Article 1638, Vernon’s Civil Statutes. These committeemen are entitled
to receive three ($3) Dollars a day, not to exceed five (5) days, for
the performance of their duties, said money to be paid out of the county
treasury upon certificate of the District Judge. Article 1640, Vernon’s
Civil Statutes I
Upon examination of the statutes and laws of this State we can
find no other authority upon which an expenditure of funds, for the
purpose of hiring accountants in the course of an investigation, can
be made by a grand jury. Where there is no authority on the part of
the county or the government agency involved to enter Into the contract,
a recovery against the county, or general fund thereof, based upon
quantum meruit wil.1not lie. Pritchard and Abbott v. McKenna, 343
S.W.2d 752 (Clv.App., 1961, writ pending). Therefore, the general
funds of the county would not be liable for any contract entered Into
by the grand jury for auditing purposes on the basis of contractual
obligation or quantum meruit, since the grand jury has no authority
to commit the general funds of the county, but is only authorized to
spend the funds, If any, acquired by virtue of Article 637, Vernon’s
Pena1 Code .
Article 52-16Ob, Vernon’s Code of Criminal Procedure, sets up
the office of Criminal District Attorney for Jefferson County. Under
Article 3899, Section (b), Vernon’s Civil Statutes, a Criminal District
Attorney is authorized to charge to his county all reasonable expenses
necessary in the proper and legal conduct of his office. Said Article
provides :
“Each officer named in this Act, where he receives
a salary as compensation for his services, shall be entitled
and permitted to purchase or charge to his county all reason-
able expenses necessary in the proper and legal conduct of
his office . . .”
When a criminal district attorney believes that the work in
question would be a material aid to his office in preparing criminal
cases for trial it would be proper for him to have certain services
performed. Attorney General’s Opinion WW-874.
Article 3899, Section (b) continues:
(I9 . .Such expenses to be passed on, pre,determined
and allowed in the time and amount, as nearly as possible,
Mr, W. G. Walley, Jr., Page 5 (~~-1086)
by the Commissioners Court once each month for the
ensuing month, upon the application by each officer,
stating the kind, probable amount of expenditure and
the necessity~for the expenses of his office for such
ensuing month, which application shall, before presenta-
tion to said court, first be endorsed by the county
audftor, if any, otherwise the county treasurer, only
as to whether funds are available for payment of such
expenses. . o
TSuch purchases shall be made by each officer,
when allowed, only by requisition in manner provided
by the county auditor, if any, otherwise by the Com-
missioners Court. Each officer, shall, at the close
of each month of his tenure of office, make an itemized
and sworn report of all approved expenses incurred by
him and charged to his county, accompanying such report
with invoices covering such purchases and requisitions
issued by him in support of such report. If such
expenses be incurred in connection with any particular
case, such report shall name such case. Such report,
invoices, and requistions shall be subject to the audit
of the county auditor, if any, otherwise by the Com-
missioners Court, and if it appears that any item was
not incurred by such officer, or that such item was not
a necessary or legal expense of such office, or purchased
upon proper requisition, such item shall be by said county
auditor- or court rejected in which case the payment of
such item may be adjudicated in any court of competent
jurisdiction. ~11 such approved claims and accounts shall
be paid from the Officers Salary Fund unless otherwise pro-
vided herein.
II
o ~ 0It
Attorney General's Opinion v-976, held that the District
Attorney was acting in the proper and legal conduct of his office
when he requested the District Court Reporter to prepare a transcript
of the testimony given at an examining trial, for presentation to the
Grand Jury, and stated that a diligent district attorney would want to
preserve such testimony, because in the event of indictment it might
become necessary during the trial of the accused to use the testimony
taken in the examining trial. Attorney General's Opinion V-538, dis-
cussed a fact situation in which a justice of the peace called an
inquest and the county attorney desired to have the testimony of the
witnesses transcribed to aid and assist him in the prosecution of the
case should a criminal charge result. For this purpose he engaged a
reporter to be present to transcribe the testimony. Based upon these
facts it was held that:
Mr. W. G. Walley, Jr., Page 6 (w&locl6)
"The county attorney e e . was authorized to
require that the testimony taken at an inquest be
transcribed in question and answer form for use by
him in the conduct of his office in investigating
circumstances in a death and to employ a reporter to
take and transcribe such testimony at the expense of
the county."
The question of whether the prior endorsement of the County
Auditor or County Treasurer, as the case may be, and the prior
approval of the Commissioners Court is necessary before incurring
such expense, under Article 3899, Section (b) is discussed in State
v. Carnes, 106 S.W.2d 39'7,399 (Civ,App. 193'7)and Attorney General's
Opinion V-1149. This case concerns interpretation of said article
concerning expenditures by the sheriff's department:
"While the entry by the commissioners' court of
an order authorizing the appointment of deputies and
fixing their compensation upon proper application by
the officer in accordance with article 3902 is a condi-
tion precedent to ,his claiming credit, as a matter or
right, for salaries paid his deputies, this statutory
provision was not intended as a limitation on the power
of the commissioners' court, and any affirmati~veaction
of the court authorizing or approving the expenditure
before or after it was incurred would bind the cbunty
and authorize the deduction. The commissioners' court
may ratify that which it might have authorized originally.
Cameron County V* Fox, 61 S.W.2d 483." (Emphasis added.)
If the expense was incurred by the District Attorney, such
expenditure may be made out of the officer!s salary fund with the
prior approval or subsequent ratification of the Commissioners
Court. Attorney General's Opinion V-1149.
SUMMARY
(1) The Grand Jury of Jefferson County may hire an
accountant to investigate any records during the course
of investigating for violations of the Penal Code in the
event that funds are available by virtue of Set, 3 of
Article 637, V. P. C.
(2) The Criminal District Attorney has the authority to
employ a publrc accountant to audit any records, if
reasonably necessary in the investigations of a criminal
violation or in preparing a criminal case for trial, payable
from the officer's salary fund.
Mr. W. G. Walley, Jr., Page 7 (w-1086)
Very truly yours,
WILL WILSON
Attorney General of Texas
BY
Cecil Cammack, Jr.
Assistant Attorney General
CC:ca
APPROVED"
OPINION COMMITTEE
W. V. Geppert, Chairman
John Reeves
Mary K. Wall
Maston Courtney
REVIEWED FOR THE ATTORNEY GENERAL
BY: Morgan Nesbltt