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 S.W.2d
636;  Callaghan, County Judge, v.
                Sall~lway, 23 S.W. 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
S.W. 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-