Untitled Texas Attorney General Opinion ( 1988 )

Honorable Mike Driscoll Opinion No. JM-911
Harris County Attorney
1001 Preston, Suite 634 Re: Which county official is
Houston, Texas 77002 responsible for preparation
of the county payroll and the
printing and distribution of
its checks (RQ-1135)
Dear Mr. Driscoll:
You ask which county official is responsible for the
preparation of county payroll and the printing and dis-
tribution of its checks. Presently, the Harris County
Auditor performs these functions. The Harris County
Treasurer, however, claims that such functions properly
should be performed by her office. In two well-prepared
briefs, your office concludes that the county treasurer,
rather than the county auditor, is the official responsible
for the preparation and distribution of county payroll. We
agree that the county auditor may not perform these func-
tions; however, we conclude that the various county officers
are by statute given the authority to prepare and distribute
the county payroll for the employees of their respective
offices. We believe that the county treasurer may properly
be delegated the responsibility of preparing the payroll and
printing paychecks in Harris County.
It must be emphasized at the outset that no constitu-
tional or statutory provision expressly confers authority on
any officer to prepare the county payroll and print and
distribute paychecks. A number of statutes, however, assign
functions directly related to the county payroll to various
officers, including the county auditor and county treasurer.
Both officers claim that those payroll functions not
assigned by statute should properly be performed by their
respective offices.
P. 4530
Honorable Mike Driscoll - Page 2 (J&l-911)
the ?
The office of county auditor was first created by
legislature in 1905. Acts 1905, 29th Leg., ch. 161, at 381.
The county auditor is appointed by the district judges
having 'urisdiction in the county. Local Gov't Code
584.002. 1 In a county with a population of two million or
more, the county auditor must be "elected" by a t,wo-thirds
vote of the district judges present and votin at a meeting
called for that purpose. Id. 584.005(a). 1 The county
auditor must be of unquestionable character and intelli-
gence, thoroughly competent in public business details, and
a competent accountant with at least two years experience in
accounting and auditing. Id. 584.006.3 The county auditor
must file a bond conditioned on the faithful performance of
his official duties, must take the official oath, and must
provide a written oath that states, inter alia, that he
possesses the prescribed qualifications and that he will not
be personally interested in a contract with the county. Id.
584.007.4
1. Sections 1 and 2 of Acts 1987, 70th Leg., ch. 57,
at 153 amended former V.T.C.S. articles 1645 and 1646, now
Local Government Code sections 84.002, 84.004, 84.007,
152.031, and 151.032. Section 311.031(c) of the Government
Code provides in part that the repeal of a statute by a code
does not affect an amendment of the statute by the same
legislature which enacted the code. The amendment is
preserved and given effect as part of the code provision.
Articles 1645 and 1646 were repealed with the simultaneous
enactment of the Local Government Code in 1987. Acts 1987,
70th Leg., ch. 149, 549(l), at 1307.
2. Former V.T.C.S. article 1645a-10, now section
84.005, was amended by Acts 1987, 70th Leg., ch. 192, at
1466. The amendment is preserved and given effect as part
of section 84.002. Gov't Code 5311.031(c). See note 1,
sunra.
3. Former V.T.C.S. article 1648 (now section 84.006)
was amended by Acts 1987, 70th Leg., ch. 57, at 153. The
amendment is preserved and given effect as part of section
84.006. Gov't Code 5311.031(c). See note 1, supra.
4. See note 1, suora.
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Honorable Mike Driscoll - Page 3 (JM-911)
The auditor is given the duty to prescribe the system
of accounting for counties with a population of 190,000 or
more. & §112.002(a). In all counties, he is given
authority to adopt and enforce regulations he considers
necessary for the "speedy and proper collecting, checking,
and accounting" of county funds. The regulations cannot be
inconsistent with law or rules adopted by the comptroller of
public accounts prescribing the manner for the keeping and
accounting of county funds. Id. 5§112.001; 112.002(b);
112.003. The county auditor is *en
general oversight of the books and records
of a county, district, or state officer
authorized or required by law to receive or
collect money or other property that is
intended for the use of the county or that
belongs to the county.
Id. 5112.006(a). He is required also to maintain accounts
for such purposes, section 112.005, and shall keep records
of county financial transactions, section 112.007. The
county auditor must also "see to the strict enforcement of
the law governing county finances." a 9112.006(b). In
r- counties with a population of more than 225,000, the county
auditor serves as budget officer for the commissioners court
with the duty of pre aring the annual county budget. Id.
5111.032 and 111.033. !3
The county auditor is, as his title suggests, given
broad powers to audit county finances. The county auditor
has continual access to commissioners court orders relating
to county finances, and the books, accounts, reports,
vouchers, and other records of officers. Local Gov't Code
~115.001. He has a duty to examine and investigate these
records, id., as well as reports about the collection of
money for the county and the books and reports of the county
5. Sections 111.061 to 111.073 of the Local Government
Code apply to counties with a population greater than 1.2
million and authorize the appointment of a budget officer by
the commissioners court. Section 4 of Acts 1987, 70th Leg.,
ch. 57, at 155, amends section 1 of former V.T.C.S. article
1666b (now sections 111.061 and 111.062) to reduce the
population bracket to counties in excess of 125,000
population. It appears, then, that a budget officer may be
appointed in all counties with a population greater than
125,000. Gov't Code 53 11.031(c). See note 1, suora.
P. 4532
Honorable Mike Driscoll - Page 4 (JM-911)
tax assessor-collector, county treasurer, and all other
officers. Id. 5115.002. In counties with a population of
190,000 or more, the county auditor "shall audit, adjust,
and settle the accounts of the district attorney, the
district clerk, and each county or precinct officer." Id.
5115.004.
The county auditor also is given duties regarding the
expenditure of county funds. The auditor's approval of
each claim, bill, and account against the county is a pre-
requisite to its payment. Id. 5113.064(a). The auditor's
approval may not be given unless the claim was incurred as
provided by law. Id. 5113.065. The auditor may not audit
or approve an account for the purchase of supplies if it is
not accompanied by a requisition signed by the officer
ordering the supplies and approved by the county judge
unless the county judge's approval is waived. Id. 5113.901.
Furthermore, the county treasurer and the county depository
may not pay a check or warrant, other than one for jury
service, unless it bears the auditor's countersignature.
Id. 5113.043.
Article XVI, section 44, of the Texas Constitution
creates the office of county treasurer and, in a few
counties, authorizes its abolition. In counties in which
the office is not abolished, the county treasurer is an
elected officer and performs those duties prescribed by the
legislature for the office.
The legislature has designated the county treasurer as
chief custodian of county funds. Local Gov't Code §113.001.
He is required to receive all money belonging to the
county, id, S113.003, and to deposit such funds in various,
designated accounts. Id. 55113.004: 113.021. He must keep
records of all transactions of the treasurer's office,
including all receipts and expenditures of money he receives
by virtue of the office, id. 5113.002, and a register of all
claims presented against the county. Id. 5113.061. At, each
regular term of the commissioners court, the treasurer is
required to make a detailed report of all transactions and
proceedings in his office and exhibit the books and accounts
of the office for the commissioners court's audit and
approval. Id. 5114.026. The treasurer also must submit a -\
monthly claims report to the county clerk. Id, 5114.061.
The treasurer shall examine the records of various officers
to determine if money belonging to the county in the posses-
sion of the officers has not been accounted for and paid
over according to law. Id. L3115.901. The treasurer is also ?
P. 4533
Honorable Mike Driscoll - Page 5 (JM-911)
,-
empowered to direct the prosecution for the recovery of any
debt owed the county and to supervise the collection of the
- debt. J& 5113.902.
1
The county treasurer may charge prescribed fees for
performing certain enumerated services. Id. §5118.141-
118.144. In a county in which the county treasurer is
compensated on a fee basis, the legislature has provided a
schedule for determining the officer's commissions. Id.
§153.001..
The county treasurer is also given broad powers
concerning the disbursement of county funds. Section
113.041 of the Local Government Code provides the following
in pertinent part:
(a) The county treasurer shall disburse
the monev belonainc to the countv and shall
pav and aDDlV the monev as required by law
and as the commissioners court may require or
direct, not inconsistent with law.
(b) A person may not spend or withdraw
money from the county treasury except by
a check or warrant drawn on the county
treasury, whether or not the money is in a
county depository as required by law.
Cc) The county treasurer may not pay
money out of the county treasury without a
certificate or warrant from an officer who is
authorized by law to issue the certificate or
warrant.
Cd) If the treasurer doubts the legality
or propriety of an order, decree, certifi-
cate, or warrant presented to the treasurer
for payment, the treasurer may not make the
payment. The treasurer shall report the
matter to the commissioners court for
the court's consideration and direction.
(Emphasis added.)
Local Gov't Code 5113.041. The county treasurer must
r endorse warrants, checks, vouchers and orders drawn by a
proper authority if there are sufficient funds in the
account from which it is drawn, but may not issue a check
to take up a warrant drawn by a proper authority. Id.
5113.042(a), (b).
-
P. 4534
Honorable Mike Driscoll - Page 6 (JM-911)
As we mentioned at the outset of this opinion, a number
of statutes assign various functions associated with the
county payroll to various officers, though none expressly
assigns the duty of preparing the county payroll and
printing county paychecks. Several of these statutes assign
certain functions to the county auditor, while others
designate the county treasurer as the official responsible
for performing certain payroll functions.
Chapter 155 of the Local Government Code authorizes and
enumerates deductions that may or must be made from the
compensation of county employees. In counties with 20,000
or more inhabitants, county employees may request payroll
deductions for payments to a credit union, payment of
membership dues in a labor union or bona fide employees
association, or payment of fees for parking in a county-
owned facility. Id. §155.001. The employee's written
request must be submitted to the county auditor, and the
request remains in effect until the county auditor receives
a written notice of revocation signed by the employee. Id.
§155.002.
Section 155.021 enumerates certain payroll deductions
that are either authorized or required by other statutes. -,
The section provides that the "county treasurer or, if
another officer is specified by law, that other officer
shall make the deductions from, or take other similar
actions with regard to, the compensation of county employees
as required" by the enumerated statutes. Of these statutes,
only two expressly designate the treasurer as the officer
to make the authorized or required payroll deductions.
V.T.C.S. art. 69%, 59 (social security contributions);
Title llOB, 355.403(e) (retirement system contributions).
One statute designates the "disbursing officer of the
county." V.T.C.S. art. 6252-3, §1 (purchase of United
States savings bonds). Another speaks of the "appropriate
officer designated by the county." V.T.C.S. art. 6252-313,
593, 3A (deferred compensation plans). Article 6229a-5,
V.T.C.S., which authorizes deductions for the purchase of
annuities or investment, is silent as to the officer
responsible for making payroll deductions. A statute not
listed in section 155.021, V.T.C.S. article 6252-3c, which
authorizes the establishment of a "cafeteria plan" benefits
program for county employees, is also silent on this issue.
?
Chapter 156 of the Local Government Code authorizes
counties to establish and operate an electronic funds
transfer system to transfer county officers' and employees'
net pay and all forms of compensation, payments, or
reimbursement to their accounts in financial institutions.
P. 4535
Honorable Mike Driscoll - Page 7 (JM-911)
Id. §156.001. The county auditor, or the chief financial
officer in counties without an auditor, is responsible for
P establishing "the procedures for administering the system."
Id. 5156.003.
Subchapter D of chapter 152 of the Local Government
Code concerns the withholding of compensation of elected
county officers who elect not to be paid. Section 152.051
defines "county payroll officer" for the purposes of
administering this subchapter as "the county auditor or
other appropriate county officer who issues paychecks to
county personnel." Id. 5152.051. Subchapter D, however,
was enacted in response to the efforts of a single elected
officer:
Mr. Bill Finck, the County Treasurer in Bexar
County, ran on the platform of abolishing the
office. Mr. Finck does not want to accept
his paychecks, but the County Auditor has
stated that every elected official must
accept [his] paycheck. There is presently no
law on the books which permits an elected
county official to refuse compensation for
his services. H.B. 1991 has been introduced
to alleviate this situation.
Bill Analysis to H.B. No. 1991, 68th Leg., prepared for
House Comm. on County Affairs (1983). The office of county
treasurer in Bexar County was eventually abolished. Tex.
Const. art. XVI, 944(b). Subchapter D, therefore, should be
considered in that light. Gov't Code 5311.023(3) (legisla-
tive history may be consulted when construing a statute).
Finally, we note that section 151.903 of the Local
Government Code establishes procedures regarding the
preparation and reporting of payroll information in counties
with a population of 500,000 or more. The county auditor is
given seemingly broad powers regarding the county payroll,
but, as we shall discuss later in this opinion, they are no
broader than those already possessed by the auditor.
II.
The confusion surrounding the issue of which county
official is responsible for the payroll is reflected in a
series of inconsistent opinions issued by this office over a
period of 40 years. We will now examine these opinions and
reevaluate some of their conclusions regarding the proper
roles of different county officers with respect to the
county payroll and delivery and preparation of warrants.
P. 4536
Honorable Mike Driscoll - Page 8 (JM-911)
Attorney General Opinion O-6624 (1945) concerned the
duty of the county auditor with respect to the approval
of warrants for the payment of a county employee. The
opinion concluded that the auditor's chief duties were to
ascertain whether the employee was engaged in performing the
duties authorized by his contract of employment with the
commissioners court and whether such duties were in the
discharge of "county business." If the auditor d,etermined
that the employee was not discharging the duties for which
he was employed, the auditor's sole remedy was to refuse to
countersign the warrants drawn on the county treasurer for
the purpose of paying the employee. See also Smith v.
MCCOY, 533 S.W.2d 457 (Tex. Civ. App. - Dallas 1976, writ
dism'd w.0.j.). The opinion did not hold, nor did it imply,
that the auditor bore m duty respecting the payment of
county employees beyond the approval and countersignature of
warrants issued to county employees in payment of their
services.
Other opinions employed similar reasoning. In Attorney
General Opinion O-5049 (1943), the question was whether the
commissioners court could adopt an order authorizing the
county auditor, inter alia, to my county and precinct
officials and employees. The question was answered in the
negative because the county auditor was not subject to the
orders of the commissioners court and because the commis-
sioners court could not delegate its duty to audit and
settle accounts against the county and direct their payment.
See also Local Gov't Code s115.021 (formerly V.T.C.S. art.
2351(10)).
Attorney General Opinion V-487 (1948) concluded that
the county auditor could not collect and pay group insurance
premiums for county employees. The opinion emphasized the
absence of language granting such power to the auditor in
the statute authorizing the group plan. Attorney General
Opinion V-711 (1948), considering another group insurance
plan authorized by statute, reached the same conclusion:
[Nleither the collection nor the deduction of
the contributions from the salaries of the
county employees constitutes any function of
the County Auditor. . . . The collection and
deduction should be performed by the proper
county officer who issues the checks on the
County Treasurer for the payment of the
salaries of the employees included in the
wow insurance plan. . . . The County
Auditor, of course would necessarily have -,
to countersign the checks of the county
P. 4537
Honorable Mike Driscoll - Page 9 (JM-911)
officer under the . . . provisions of Article
1656a. . . .
Attorney General Opinion V-711 (1948) at 2. Attorney
General Opinion V-1387 (1952) concluded from a reading of
the version of V.T.C.S. article 695g then in effect that it
was the duty of the county treasurer to assess and collect
county employees' social security contributions and to
transmit such amounts to the State Department of Public
Welfare.6 The county auditor's duty was to "check, compare,
and audit" the county treasurer's computations and to
certify the results to proper officials.
Attorney General Opinion WW-1107 (1961) considered
whether the county auditor could make payroll deductions for
county employees to be paid over to a credit union. After
quoting a portion of former article 1656a, V.T.C.S. (now
section 113.047 of the Local Government Code), the attorney
general advised that the county treasurer had authority to
disburse funds in the payment of salaries and expenses.
This, despite the fact that the statute provided that the
officer who collected the funds disbursed in payment of
salaries "may draw checks on the county treasurer to
disburse said funds." Attorney General Opinion ww-1107
(1961) at 2. Attorney General Opinion V-711 (1948) was
affirmed, but because no statute granted the commissioners
court the express power to make payroll deductions for
credit union payments, the commissioners court could not
delegate such authority to either the county auditor or the
county treasurer.
In Attorney General Opinion C-218 (1964) the issue was
whether the "Tabulating Department" of Jefferson County fell
under the "jurisdiction" of the county auditor. At stake
was control of the county's data processing equipment, with
which a number of functions were performed, including
processins oavrolls. orintina checks, re-
gisters and various reports: cash claims,
warrants, registers and reports, budget
6. The Employees Retirement System is now the state
- agency designated to administer the program. V.T.C.S. art.
695g, 551(d), 2. The county treasurer remains the official
officer responsible for assessing, collecting, and trans-
mitting employees' contributions. Id. 59; Local Gov't Code
5155.021(l).
P. 4538
Honorable Mike Driscoll - Page 10 (JM-911)
:
-_
appropriations, expenditures, encumbrances,
controls and reports. (Emphasis added.)
Attorney General Opinion C-218 (1964) at 1. A substantial
part of the department's work related to the county's
accounting system and the forms used by county and precinct
officers in the collection and disbursement of county funds.
After quoting parts of former V.T.C.S. articles 1651, 1654,
1656, 1656a, 1666 and 1666a (now codified throughout Local
Government Code chapters 111, 112, 113, 114, and 115), the
opinion abruptly concluded that
the County Auditor has jurisdiction and
control of the tabulating department which
performs the functions described in your
statement of facts.
Attorney General Opinion C-218 (1964) at 4. The opinion
provided no analysis of the various functions of the
department, but simply declared that all fell into the
general area of accounting and were under the control of the
county auditor.
Attorney General Opinion M-299 (1968) also arose as a
result of the consolidation of various governmental func-
tions into a single computer system which was under the
county auditor's control. The relevant question was whether
the commissioners court could adopt an order directing the
county auditor to issue checks or warrants for the payment
of salaries and expenses for all district, county, and
precinct offices. Relying on that part of article 1656a now
codified as Local Government Code section 113.047, which
authorized officers to draw checks on the county treasurer
to pay salaries and expenses, and subsections 19(i) and
19(l) of former article 3912e (now sections 154.042 and
154.043 of the Local Government Code). which created
officers' salary funds and authorized bif cers to issue
warrants against the fund to pay salaries the attorney
general concluded that district, county, and precinct
officers were authorized to "issue" or "draw" county
"warrants" for the payment of deputies' and employees'
salaries. Attorney General Opinion M-299 ( 1968) at 7-8.
But the opinion also concluded that the comm .issioners court
could direct the auditor to "prepare" county and district
payroll warrants. Id. at 8. The attorney general did not
explain the difference between "issuing" or "drawing"
warrants for salaries and "preparing" payroll warrants,
though he obviously perceived a difference. Instead, he
simply concluded that county officers would not be deprived
-.
of their authority to issue warrants for salaries. Attorney
P. 4539
Honorable Mike Driscoll - Page 11 (JM-911)
General Opinion C-218 (1964) was cited as authority for
allowing the auditor to process county payrolls and print
r‘- county warrants and checks.
In Attorney General Opinion M-657 (1970), the question
was which county official was responsible for delivering
county warrants and county jury checks to the payee. Former
article 2554, V.T.C.S., now section 113.042 of the Local
Government Code, described the county treasurer's duty to
endorse checks and warrants presented to him. Former
article 1632, V.T.C.S., required the treasurer to obtain an
acknowledgment of the receipt of amounts paid from the party
receiving payment from the county. See Local Gov't Code
5113.062. Former article 1709, V.T.C.S., provided in part
that the county treasurer shall "receive all moneys
belonging to the county" and "pay and apply the same." See
Local Gov't Code §5113.003, 113.041(a). In view of these
statutes, the attorney general concluded that the county
treasurer was the proper official to make delivery of county
warrants to the payee. See al Attorney General Opinion
O-4462 (1942) (county treasurershall endorse and deliver
warrants drawn by proper authority to the payee).
In Attorney General Opinion M-965 (1971), the issue was
whether the county clerk could "continue the writing of
payroll checks" and "continue to write checks in payment of
any and all bills" approved by the commissioners court. The
attorney general determined that amendments to former
article 1709, V.T.C.S., relating to the duties of the county
treasurer did not diminish the duties of the county clerk.
Thus, under the provisions of articles 1656a, 3912e, and
3912e-4, the clerk could continue to issue warrants for
salary and expenses "incurred in the conduct of his office
(emphasis added)." Attorney General Opinion M-965 (1971) at
4. He concluded that the amendments merely enlarged article
1709 to include language from statutes governing the duties
of other officers and that there was no legislative intent
to repeal those other statutes.
Attorney General Opinion H-977 (1977) held that the
requisition requirement of former article 1661, V.T.C.S.
(now section 113.901 of the Local Government Code), did not
apply to claims for, inter alia, labor and services. The
opinion quoted Nacoadoches County v. Jinkins, 140 S.W.2d 901
P (Tex. Civ. App. - Beaumont 1940, writ ref'd), which held
that articles 1660 and 1661 did not apply to claims by
county officers for the recovery of their statutorily
established salaries.
p. 4540
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Honorable Mike Driscoll - Page 12 (JM-911)
.’
--.
Attorney General Opinion H-1242 (1978) considered
whether the commissioners court of Harris County could
assign the preparation of warrants of a flood control
district to either the county clerk or a data processing
center created to serve the commissioners court and other
county officers. The opinion consisted of two terse
paragraphs which said that the commissioners court could not
assign the preparation of county warrants to any officer or
department, since control of the preparation and processing
of warrants was vested in the county auditor, and cited
former V.T.C.S. articles 1656a and (oddly) 1650. Without
explanation, and apparently without regard to the opinions
that preceded it, the attorney general approved greater
exertion of control by the county auditor over the county
payroll; control that, because of advances in technology,
the legislature could not have anticipated when it created
the office of county auditor.
Attorney General Opinion JM-192 (1984) appears to
retreat from some of the broader implications of the
opinions just discussed. In that opinion, we held that
commissioners court approval of salaries paid to county
employees is required before salary warrants may be issued.
Prior approval of the county auditor is not necessary,
although the auditor's countersignature is required. We
advised that the auditor's broad authority to "see to the
strict enforcement of the law governing county finances,"
and the power to disapprove certain claims not contracted
for according to law, did not empower the auditor to require
his prior approval of salary payments.. Attorney General
Opinion JM-192 (1984) at 4. We emphasized the auditor's
ministerial duty to countersign warrants for salaries where
the claimants had a right to such payments as a matter of
law, but we noted his authority to refuse to countersign
such warrants where the claimants did not as a matter of law
have a right to the payments. Comoare Jackson v. Leonard,
578 S.W.2d 879 (Tex. Civ. App. - Houston [14th Dist.] 1979,
writ ref'd n.r.e.) and Nacoadoches Countv v. Jinkins, 140
S.W.2d 901 (Tex. Civ. App. - Beaumont 1940, writ ref'd) with
Smith v. McCoy, 533 S.W.2d 457 (Tex. Civ. App. - Dallas
1976, writ dism'd w.o.j.) and Attorney General Opinion
O-6624 (1945). We also provided a brief description of the
procedures followed when paying county employees:
?
A commissioners court is required to 'audit
and settle all accounts against the county and
direct their payment.' V.T.C.S. art. 2351(10).
All payments must comply with the county's
budget with regard to those salaries which -
have been approved for county officials and
p. 4541
Honorable Mike Driscoll - Page 13 (JM-911)
employees. V.T.C.S. art. 689a-11; art. 1666a.
The funds are actually disbursed by the county
treasurer under the direction of the com-
missioners court. Article 1709a, V.T.C.S.,
generally requires that all county money be
deposited with the county treasurer or in the
county depository and that
[n]o moneys shall be expended or with-
drawn from the county treasury except
by checks or warrants drawn on the
county treasury. . . .
V.T.C.S. art. 1709a, §4. It is the duty of
the county treasurer, upon the presentation
of a warrant drawn by the proper authority,
to endorse said warrant for the benefit of
the named payee if there are sufficient funds
available. Id. §4 (d) . Thus, the proper
authority in the payment of salaries is the
commissioners court, whose order directing
payment, i.e. the warrant, is attested by the
county clerk. Id. 44(e).
Later in the opinion, we noted that "monthly payroll reports
prepared by the respective county officials are turned in to
the commissioners court for its approval and its order
issuing salary warrants," Attorney General Opinion JM-192
(1984) at 4, citing former V.T.C.S. article 1637 (now
section 115.022 of the Local Government Code). We observed
that Attorney General Opinion O-5049 (1943) had held that
this responsibility could not be delegated to the county
auditor.
The most recent opinion bearing on the responsibilities
of county officers with respect to payroll matters is
Attorney General Opinion JM-585 (1986). There we were asked
whether the county auditor or the county treasurer was the
county payroll disbursing officer for purposes of section
55.403 of Title llOB, V.T.C.S., in counties with a popula-
tion of 10,000 or more. We concluded that, based upon the
plain language of section 55.403(e), the county treasurer
was the payroll disbursing officer in those counties in
which the office has not been abolished. The language of
- former articles 1709 and 1709a also made it clear that the
county treasurer, the officer given the responsibility to
disburse county funds, was the proper officer to deduct
member contributions to a retirement system established by
Title 1lOB. The result of Attorney General Opinion JM-585
/--
P. 4542
Honorable Mike Driscoll - Page 14 (JM-911)
is now codified in section 155.021(5) of the Local Govern-
ment Code.
III.
Three sections of the Local Government Code have a
direct bearing on the duty of county officers to prepare and
distribute the payroll for Harris County. Section 151.903
affects counties with a population of 500,000 or more. It
requires district and county officers to file personnel
records for each deputy, assistant, or person employed or
appointed by the officer if the person is paid with county
funds or funds of a flood control district located entirely
in the county. The statute also provides for the filing of
payroll:
(c) Each county officer or department
head under whom the persons described by
Subsection (a) are employed shall file a
signed and sworn payroll at the close of
the month, or more often if authorized or
required by law. The payroll must state
the name of each employee and show the
employee's dates and hours of work, rate of
compensation, and amount due for the current
pay period. In the case of engineers and
employees in the field engaged in road, flood
control, or construction work, a signed
report must accompany the payroll stating the
nature, dates, and location of the work
performed and containing any other informa-
tion that may be needed for statistical or
accounting purposes.
Local Gov't Code §151.903(c). The statute does not
designate an office or officer to receive or process the
payroll, but it provides that the county auditor "shall
prescribe the forms and systems, including a system of
personnel and equipment records, necessary to carry out this
section." Id. 5151.903(d). The auditor also “may enforce
any rules adopted under this section." Id. The auditor may
withhold payment of salaries in the event that a person
fails to file records or information required under this
section. Id.
Section 151.903 would appear to vest the county auditor
with broad authority over county payroll procedures. How-
ever, we believe that this section must be read in conjunc-
tion with sections 113.047 and 154.043 of the Local
Government Code.
P. 4543
Honorable Mike Driscoll - Page 15 (JM-911)
Section 113.047 authorizes the disbursement of salaries
in counties of 190,000 or more and provides the following:
After the deposit of funds in a county
depository, an officer in a county with a
population of 190,000 or more mav draw checks
on the county treasurer to disburse the funds
as payment for a salary or expenses authorized
by law or in payment to the county or to the
person to whom the funds belong. (Emphasis
added.)
Section 154.043 establishes procedures for the payment of
employee salaries and provides the following in pertinent
part:
(a) A district, county, or precinct
officer may issue a warrant against the
salary fund to pay the salary of an employee
whose salary may be paid from the fund.
(Emphasis added.)
Statutes that relate to the same general subject matter
ic‘
are said to be in nari materia and are to be construed
together in arriving at the intention of the legislature.
Calvert v. Fort Worth National Bank, 356 S.W.Zd 918 (Tex.
1962). In the event of any conflict, the more specific
statute prevails over the more general provision. Aleios v.
State, 555 S.W.Zd 444 (Tex. Crim. APP. 1972). See also
Gov't Code 5311.026. We perceive no conflict between
section 151.903 and sections 113.047 and 154.043.
In our opinion, section 151.903 does no more than
acknowledge the authority of the county auditor to "pre-
scribe the system of accounting for the county" and to
adopt and enforce regulations for the "speedy and proper
collecting, checking, and accounting" of county funds.
Local Gov't Code 5112.002 (counties with a population of
190,000 and more). Section 112.002 is derived from former
V.T.C.S. article 1656a, as is section 113.047. Furthermore,
section 151.903 does not expressly purport to place in the
auditor's hands the duty of preparing payroll or distri-
buting paychecks, nor do we believe that it can reasonably
be construed to do so. The auditor's authority to withhold
- payment of salaries for failure to file the required records
or information merely reflects the auditor's power to refuse
to countersign salary warrants where no right to receive the
salary has been established as a matter of law. Attorney
General Opinion JM-192 (1984). Because sections 113.047 and
P 154.043 specifically provide that an officer may "draw
P. 4544
,
Honorable Mike Driscoll - Page 16 (JM-911)
checksI' and ltissue" warrants for the payment of salaries,
they must be given effect.
Additionally, section 154.044(a) of the Local Govern-
ment code states that each district, county, and precinct
officer shall file a report with the county auditor that
shows, inter alia, "the amount paid during the preceding
month to each employee of the officer and the name and
position of the employee." We believe that this provision
contemplates a situation in which an officer other than the
county auditor is responsible for preparing the county
payroll. If the auditor were authorized to perform this
function, it would serve no purpose to require officers to
submit the information required by section 154.044, since
the auditor presumably would already possess such informa-
tion. Accordingly, we believe that the Local Government
Code provisions applicable to Harris County do not grant the
county auditor the authority either to prepare the county
payroll or to print and distribute paychecks.
IV.
Article XVI, section 44, of the Texas Constitution
assigns no duties to the office of county treasurer. The
legislature is given the primary duty to prescribe the
duties, which it has done in intricate detail. However,
this opinion would be incomplete if we did not discuss the
greater constitutional implications of this issue. Consti-
tutional themes underlie the question at hand and suggest
that the county treasurer should exercise those functions,
such as the preparation of the county payroll, which
logically are a part of the functions of that constitutional
office. An answer to your question thus is incomplete with-
out reflection on the themes suggested by the Constitution.
Under our republican form of government, the power to
govern is vested in the people; the duty to govern is vested
in offices created under the Constitution and discharged by
officers responsible to the people. A constitutional office
is no empty honor or mere preferment. Rather, it is an
essential element of republican government. See, e.a.,
Wiecek, "Republican Form of Government," 3 Encvclopedia of
the American Constitution 1558 (1986). Each constitutional
office is essential to the whole scheme of freedom and
sovereignty established by the Constitution because it has
at its core certain irreducible functions which make up the
threads of the office. In turn, each constitutional office
is a part of the whole fabric of republican government.
P. 4545
Honorable Mike Driscoll - Page 17 (JM-911)
The core functions of a constitutional office may not
be taken away, or shared with another office, save by a con-
P The officer holding the constitu-
stitutional amendment.
tional office thus must be permitted to perform any tasks
properly emanating from the core functions of the office --
functions that are historically or logically within the
penumbra of power attached to the office as an element of
republican government. See Ex narte Hushes, 129 S.W.2d 270
(Tex. 1939). Our discussion of the role of the county
treasurer, above, indicates that the core functions of the
office should include the preparation of the county payroll.
To reiterate, the treasurer is the chief custodian of
county funds, Local Gov't Code 5113.001, and has broad
powers concerning the disbursement of those funds, id. at
5113.041, including the sole power to "disburse money
belonging to the county" and to pay the county's money s
directed bv the commissioner's court, id. The preparation
of the county payroll logically falls within the penumbra of
the ministerial duties created by these functions at the
core of the constitutional office of county treasurer. In
the main, the best reasoned prior opinions of this office
cited above fully support this conclusion.
Under our system of county government, there exists a
delicate system of checks and balances to protect the funds
of the county. The county auditor occupies a significant
role in this system. Smith v. MCCOY, 533 S.W.2d 457 (Tex.
Civ. App. - Dallas 1976, writ dism'd w.0.j.). As our
discussion of the duties of the office demonstrated, the
county auditor is given broad powers to oversee county
finances and prescribe systems for the accountability of
county funds. The effectiveness of this checks and balances
system depends, in large part, upon the independence of the
auditor from the influence and control of the county
commissioners court. Weaver v. Commissioners' Court of
Nacoadoches Countv, 146 S.W.2d 170 (Tex. 1941). The
independence of the county auditor is assured by placing the
power of appointment and dismissal in the hands of the
district judges rather than the commissioners court. Id.;
Local Gov't Code 584.002. That independence is compromised
when the auditor disburses county funds in the form of pay
checks.
P In the absence of express legislative authorization for
the auditor to prepare the county payroll and have the
checks printed and distributed, we are hesitant to conclude
that he may perform these responsibilities. The auditor's
primary responsibility is to review the books of others and
to see to the enforcement of the laws governing county
P. 4546
Honorable Mike Driscoll - Page 18 (JM-911)
finances. Local Gov't Code 5112.006. Unless the legisla-
ture expressly permits the auditor to perform administrative
work that is subject to audit, we would assume he would not
be in a position to audit his own work. See aenerallv 22
T.A.C. 95501.11, 501.15.
Thus, the county auditor, as we have detailed above,
may have critical duties to perform with regard to the
disbursement of county funds, even in the area of payrolls.
At the very least, the auditor has an over-arching assign-
ment to see that county funds are expended according to law
and under a system that allows for accountability. These
are critical elements in the scheme of checks and balances
imposed in general by the constitution, and in particular by
the numerous statutes we have cited. Most assuredly, the
auditor may not preempt a power which should be among the
core functions of an officer of full constitutional dignity.
V.
Based on the foregoing discussion, we believe that the
duty of preparing payroll and drawing paychecks falls on the
various county officers. See Attorney General Opinion Nos.
M-965 (1971); V-711 (1948). The act of "drawing" a check
does not, however, require the officer to actually perform
the clerical tasks of printing and writing in the figures on
the face of the check. Rather, the officer may "cause it to
be written," i.e
A, may delegate this task. We believe that
both logic and constitutional law dictate that the only
other official to whom .this function properly may be
delegated is the county treasurer, since the treasurer is
authorized tothe"p``mm``~io````y" county money as required
by law or court. Local Gov't Code
5113.041(a). See also Attorney General Opinion JM-585
(1986) (defining "disburse" as "pay or expend").
The commissioners court, pursuant to its authority to
"audit and settle accounts against the county" and direct
their payment, must give its prior approval before warrants
in payment of salary may be issued. Id. §115.021; Attorney
General Opinion JM-192 (1984). The county auditor may
prescribe.the forms and systems necessary to process the
county payroll. Local Gov't Code 5151.903(d). The auditor's
countersignature is still required on salary warrants. Id.
5113.043. Attorney General Opinion JM-192 (1984).
It is suggested that county officers in Harris County
are no longer authorized to issue warrants for salaries. We
are informed that the commissioners court has eliminated
officers' salary funds pursuant to former V.T.C.S. article
p. 4547
L
Honorable Mike Driscoll - Page 19 (JM-911)
*.
3912e, section 19(i) (now Local Government Code section
154.007). Under this provision, the commissioners court may
order that money that would otherwise be deposited in the
salary fund be deposited in the general fund of the county.
It is argued that this action, coupled with the commis-
sioners court power to fix salaries of county employees,
Local Government Code section 152.011, deprives county
officers of the authority to issue salary warrants. This is
not the case, however. The use of the general fund to pay
salaries in no way diminishes an officer's authority to
issue salary warrants. Indeed, section 154.007(b) states
that in a county where the general fund is made the source
of payment of salaries, a reference in chapter 154 to a
salary fund means the general fund. Consequently, -officers
in Harris County are authorized to issue warrants on the
general fund in payment of employees' salaries.
In view of our answer to your question, we conclude
that Attorney General Opinion Nos. M-299 (1968) and C-218
(1964) are in error to the extent that they conclude that
the county auditor may prepare the county payroll and print
paychecks, and they are hereby overruled. To the extent
that Attorney General Opinion H-1242 (1978) suggests that
the county auditor of Harris County may prepare warrants for
the payment of salaries of county officers and employees, it
is modified to conform with this opinion. The holding of
Attorney General Opinion JM-192 (1984), that prior approval
of the commissioners court, but not of the county auditor,
is required before salary warrants may be issued, involved a
county with a population less than 190,000. See Local Gov't
Code §§154.021-154.026 (salary provisions applicable to such
counties). To the extent that it suggests that the commis-
sioners court, rather than county officers, is responsible
for issuing salary warrants in counties with a population
greater than 190,000, it should not be followed.
Attorney General Opinion Nos. M-657 (1970) and O-4462
(1942) I which concluded that the county treasurer was the
proper official to make delivery of county warrants to the
payee, are not in conflict with this opinion because they
concern the treasurer's aeneral authority to pay and apply
county funds, rather than the specific duty to draw and
issue checks or warrants in payment of salaries. Comuare
Attorney General Opinion M-965 (1971). Attorney General
P Opinion VW-1107 (1961), which held that the county treasurer
has authority to disburse funds in payment of salaries, is
not in conflict with this opinion, since the authority to
disburse funds does not include the authority to issue
checks or warrants for salaries. Attorney General Opinion
-
JM-585 (1986), which dealt with specific statutory language
p. 4548
Honorable Mike Driscoll - Page 20 (JM-911)
concerning payroll deductions, is necessarily limited to its
facts, and is therefore not in conflict with this opinion.
To summarize, we conclude that the duty of preparing
county payroll and drawing and issuing paychecks belongs
to county officers in Harris County. Local Gov't Code
§5113.047; 151.903; 154.043; M Attorney General Opinion
Nos. M-965 (1971); V-711 (1948). The county treasurer may
properly be delegated such duties. The county auditor has
no authority to perform these specific functions.
SUMMARY
The duty of preparing county payroll and
drawing and issuing paychecks belongs to the
various county officers in Harris County.
Local Gov't Code 55113.047; 151.903; 154.043.
The county treasurer may properly be delegated
such duties. The county auditor has no
authority to perform these specific functions.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Steve Aragon and
Don Buston
Assistant Attorneys General
P. 4549