ATTORNEY     OF TEXAS
                                      GENERAL
                                             GREG        A B B O T T




                                                   May 4,2007


The Honorable James H. Owen                                 Opinion No. GA-0545
Henderson County Attorney
100 East Tyler Street, Room 100                             Re: Whether district judges may authorize a
Athens, Texas 7575 1                                        county auditor to retain outside legal counsel for
                                                            the purpose of responding to requests under the
                                                            Public Information Act (RQ-0550-GA)

Dear Mr. Owen:

         You ask us to

                 advise whether District Judges whose [dlistricts include Henderson
                 County, Texas may authorize[] the County Auditor to hire legal
                 counsel for Henderson County to perform duties of the County
                 Attorney's Office without the consent of the Commissioners Court or
                 the County Attorney and appropriate [clounty [flunds outside the
                 normal budget process for the payment for said services[.]'

You also ask whether "the approval of invoices by the County Auditor's office for payment of said
legal services violate[s] [Local Government Code section] 113.065," which prohibits a county
auditor from approving a claim not incurred as provided by law. Request Letter, supra note 1, at 1,
4; see TEX.LOC.GOV'TCODEANN. 5 113.065 (Vernon 1999).

        As background to your question you inform us that on, or shortly after, the appointment of
the County Auditor (the "Auditor"), "several employees of the audit office were discharged from
employment or quit." Request Letter, supra note 1, at 1. You also tell us that the Auditor terminated
the Information Technology D i r e ~ t o rSee
                                          . ~ id. You state that the Information Technology office and


         'See Letter from Honorable James H. Owen, Henderson County Attorney, to Honorable Greg Abbott, Attorney
General of Texas, at 3 (Nov. 1,2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafter Request Letter].

         2Brief from Mark A. Mayfield, Clark, Thomas & Winters, on behalf of the Henderson County Auditor and
Henderson County District Judges, to Nancy S. Fuller, Chair, Opinion Committee, Attorney General of Texas, at 2 (Jan.
8, 2007) (on file with the Opinion Committee) [hereinafter Mayfield Brief] ("In Henderson County, the [Information
                                                                                                      (continued ...)
The Honorable James H. Owen - Page 2                       (GA-0545)



the Auditor's office subsequently received numerous3 open records requests that "appear to be
related to the employment terminations." Id. You further state that upon instruction from the
District Judges but without your approval or the prior authorization of the Henderson County
Commissioners Court (the "Commissioners Court"), the Auditor retained legal counsel to address
the open records requests. See id. at 2.

         Your question raises fundamental issues involving the intersection of the different spheres
of authority of independent elected and appointed officials. We recognize that, in certain
circumstances, district judges and a county auditor may have authority to independently hire outside
legal counsel. See TEX.LOC.GOV'TCODEANN. $8 84.001-.902 (Vernon 1999 & Supp. 2006);
Bullock v. Calvert, 480 S.W.2d 367, 372 (Tex. 1972) (public officers have the implied authority
necessary to achieve a power or an object expressly granted). And we recognize that, in other
circumstances, the contracting and budgeting authority of a county commissioners court might
otherwise limit the district judges' and county auditor's authority. See TEX.CONST.art. V, 5 18(b)
(commissioners court's jurisdiction over county business); TEX. LOC. GOV'T CODE ANN.
 5 5 111.OO 1-.0 13 (Vernon 1999 & Supp. 2006) (commissioners court's authority over county
budget). To address your concerns, however, we need not determine where the various spheres of
authority collide. Here, the Commissioners Court appears to be willing to allow the claim based on
the District Judges' order. See Request Letter, supra note 1, at 2 (stating that "[wlhen the initial
invoice was presented the Commissioners Court inquired about the bill and was told the district
judge[s] had authorized it[,] and the Commissioners Court allowed the payment"); see also Mayfield
Brief, Exhibit A8 (including Commissioners Court's minutes reflecting authorization to pay hired
counsel's subsequent monthly invoices). Thus, it appears that your first inquiry can be narrowed to
whether the retention and payment of the outside legal counsel was improper because such counsel
was sought to "perform duties of the County Attorney's Office" without your consent. Request
Letter, supra note 1, at 3.

        You offer two bases for your argument that a "County entity may not employ outside counsel
to perform the duties of the County Attorney without the consent of the County Attorney." Id. First,
you rely on section 41.007 of the Government Code and on the proposition that a public officer
cannot be ousted from his legal duties. See id.; see also Terrell v. Greene, 3 1 S.W. 63 1,635 (Tex.
 1895). Section 41.007 provides that a "district or county attorney, on request, shall give to a county
or precinct official of his district or county a written opinion or written advice relating to the official
duties of that official." TEX. GOV'TCODEANN. 5 41.007 (Vernon 2004). Section 41.007 is
construed to impose a duty on district and county attorneys to provide advice to certain officials on
request. See Gibson v. Davis, 236 S.W. 202, 2 12 (Tex. Civ. App.-Galveston 1921, no writ);


        '(...continued)
Technology] department is under the supervision of the Auditor, and all of its employees are assistant auditors."); see
also TEX.LOC.GOV'TCODEANN.5 84.02 1 (Vernon 1999) (pertaining to a county auditor's assistants).

         3The Auditor characterizes the open records requests as "inundat[ing]." See Mayfield Brief, supra note 2, at
2. One request involved the "production of all emails on the County's email server in the previous twelve months," and
the sum of the requests "would have required the Auditor to review and produce over one hundredJfiy thousand
documents at County expense." Id.
The Honorable James H. Owen - Page 3                      (GA-0545)



see also Guynes v. Galveston County, 861 S.W.2d 861, 863-64 (Tex. 1993); Tex. Att'y Gen. Op.
No. GA-0153 (2004) at 2. That duty is not exclusive. See Guynes, 861 S.W.2d at 864; see also TEX.
Gov'T CODEANN.5 4 1.007 (Vernon 2004) (requiring opinion from a district or county attorney "on
request"). Because the County Attorney does not have an exclusive duty to provide legal advice in
all civil matters in Henderson County, the Auditor's retention of outside legal counsel does not
improperly impinge on the statutory duties of the Henderson County Attorney. And while a county
attorney may not be ousted from his or her duties, Texas courts have long recognized that "it is not
one of [a county attorney's] prescribed legal duties to represent the county in its general legal
business or the conduct of ordinary civil actions." Guynes, 861 S.W.2d at 864 (quoting Hill Farm,
Inc. v. Hill County, 425 S.W.2d 414, 419 (Tex. Civ. App.-Waco 1968), aff'd, 436 S.W.2d 320
(Tex. 1969)).

        Second, you rely on a prior opinion from this office to argue that the Auditor cannot retain
outside legal counsel. See Request Letter, supra note 1, at 3; see also Tex. Att'y Gen. Op. No. GA-
0074 (2003). In Attorney General Opinion GA-0074, this office concluded that the El Paso County
Bail Bond Board was not authorized to hire outside legal counsel over the objection of the El Paso
County Attorney. See Tex. Att'y Gen. Op. No. GA-0074 (2003) at 5. The conclusion in that opinion
was based on the fact that, in addition to section 41.007, the El Paso County Attorney was required
by another statute to represent El Paso County and its officials "in all civil matters." Id. at 2 (citing
TEX.GOV'TCODEANN.5 45.171(a)). The situation here is readily distinguishable in that there is
no similar statute giving the Henderson County Attorney general civil authority over all Henderson
County legal affair^.^ See TEX.GOV'TCODEANN.5 45.207 (Vernon 2004) (reserved for Henderson
County).

        Your second inquiry is whether the approval of the invoices by the Auditor's office violates
section 113.065 of the Local Government Code. See Request Letter, supra note 1, at 4. Section
113.065 provides that "[tlhe county auditor may not audit or approve a claim unless the claim was
incurred as provided by law." TEX.LOC.GOV'TCODEANN.5 113.065 (Vernon 1999). As we have
discussed, the Auditor's retention of outside legal counsel does not impinge upon any exclusive duty
of the Henderson County Attorney, and the mere fact that the retention was without your consent
does not make the claim for payment an invalid claim. Accordingly, your concerns here do not make
the payment of the claim illegal under section 113.065. There may be, however, other facts and
circumstances to be considered in connection with the legality of the claim. See Tex. Att'y Gen. Op.
No. GA-0139 (2004) at 5 (stating that the opinion process does not determine questions of fact).
Thus, we cannot ultimately opine on whether the claim was "incurred as provided by law" under
section 113.065 of the Local Government Code.




         4Because there is no statute giving the Henderson County Attorney general civil authority over all Henderson
County legal affairs, we do not need to consider whether a county auditor's general independence of county control
would specifically except the Auditor's hiring of legal counsel from the County Attorney's authority. See TEX.LOC.
GOV'TCODEANN. $5 84.002 (Vernon Supp. 2006) (auditor's appointment by district judges), 84.009 (Vernon 1999)
(auditor's removal by district judges), 84.021 (Vernon 1999) (request for auditor's assistants approved by district
judges).
The Honorable James H. Owen - Page 4            (GA-0545)



                                     S U M M A R Y

                      The County Attorney of Henderson County has no exclusive
              duty to represent Henderson County in all civil legal matters. Thus,
              the County Auditor's retention of outside legal counsel did not
              improperly impinge on an exclusive duty of the County Attorney.
              The question as to whether any claim for payment of the legal
              services was "incurred as provided by law" under section 113.065 of
              the Local Government Code requires an examination of facts and
              circumstances that the opinion process cannot address.

                                            Vew truly yours,




                                            ~ t t o r n e y b d e r a of
                                                                      l Texas


KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee