Untitled Texas Attorney General Opinion ( 1984 )

. ,
The Attorney General of Texas
JIM MAlTOX .k1gust 13, 1984
Attorney General
Suprm Ceurl Bulldlnp Honorable Patrick. If. Simmons Oplnlon No. Jn-192
P. 0. Box 12548 District-County Attorney
AUSlirl,-I%. 76711-2543 Limestone county Ile: Whether salary payments of
51214762501 P. 0. Box 146 county employees mmt be approved
wex 91(y87~1307
Groesbeck, Texas 76642 monthly by a c&ssioners court
l.IecOpler 5121475.0255
Dear Mr. Stins:
714 Jackeon.Suite 700
Dallas. lx. 75202.4508 You have asked whether payment of salaries to county officials
2l4n42ao44
require monthly rlpproval either by the comPliseiooers court or the
county auditor. Although you specifically inquire as to the effect of
4524AIberIa Ave., Sulle 150 article 1660. V.!!. C.S., other relevant statutes must be considered In
El Paso. TX. -2793 resolving this qclc:stion. We conclude that each county warrant paid to
01- an official or InPployee of the county requires cotissioners court
approval. ~Tylfr ‘I. Shelby County, 47 F.2d 103 (5th Cir. 1931). The
10011exaa.Suite 700 county auditor s rsrlor approval is not required. however.
Nc.uetcn.TX. 77w2-3111
71Y223a56 A comlssiaoers court is required to “audit and settle all
accounts against the county and direct their payment.” V.T.C.S. art.
2351(10). All ptlyments must comply with the county’s budget with
SO5Bmadray. &It. 312
iegard to those or.laries which have been approvid for county officials
L&bock. TX. 7940+34To
Kef747.5232 and ,amployees. 1r.T.C.S. art. 689a-11; art. 166611. The funds are
actually :disbursc!cl by the county treasurer under the direction of the
comifmioners can’t. Article 1709s. V.T.C.S.; generally requires that
43W N. Tenth, Buile B all county money be deposited with the county treasurer or in the
McAllm, lx. 7s501-lw5
5lmS24547
county depository and that
[n]o m~leys shall be expended or withdrawu from
200 MaIn Plaza,Sul1e400 the cmnty treasury except by checks or warrants
Ssn Antonlc. lY.. 7S20&2297
drawn OII the county treasury . . . .
512l2254191
V.T.C.S. art. 17OIla. 14. It Is the duty of the county treasurer, upon
An Equal oppoftunlcy/ the presentation of a warrant drawn by the proper authority. to
AfflmmtlveActIon Emplw~ endorse said wsrrknt for the benefit of the named payee if there are
sufficient funds znallable. Id. W(d). Thus, the proper authority in
the payment of ,slaries is-he- commissioners court, whose order
directing paynenl: , i.e. the, warrant. is attested by the county clerk.
-Id. 14(e).
Although the county auditor has broad authority to “see to the
-. ..
strict lnfo r c em4 nt or cne law governing county finances.” article
Honorsble Patrick H. Simmone - Page 2 (JM-192)
1651, V.T.C.S.. and the potter to disapprove certain claims against the
county unless contracted for according to law, he does not have the
authority to require prior approval of salary “claims.” Of course,
the auditor may refuse to s:o-sign a salary warrant which he believes,
in good faith, to be unauthorized. Without his signature. the county
warrant is invalid and camzot be paid by the depository. Attorney
Caneral Opinion S-149 (1955). The courts have been inconsistent in
their discussion of a count:r auditor’s authority to disapprove salary
warrants. The rule to be tlczived from the cases. however. is that if
the county employee, as a clatter of right, is entitled to be paid a
sum certain, the county autl:Ltor has a ministerial duty to co-sign the
warrant and may be subject to a writ of mandamus to do so; however, if
the auditor has reasonable grounds on which to question the salary
payments, he may. in his dA,Ecretion , refuse to co-sign the warrant, in
which event the employee’s remedy is a suit against the county rather
than a mandamus action agaj,r,st the auditor. In any event, it is clear
that salary payments are n>t “claims” under articles 1660 and 1661
which require prior approval by the auditor of such claims before
action of the commissioners court. Article 1660. V.T.C.S.. provides
that
1411 claims, t8illa and accounts against the
county must be fj.led in ample time for the auditor
to examine and allprove same before the meetings of
the comissionerci court. No claim. bill or
account shall be r.llowed or paid until it has been
examined and app:cc)ved by the county auditor. The
auditor shall examine the sams and stamp his
approval thereon, If he deema it necessary, all
such accounts, ‘bill [sic], or claims must be
verified by affi,iwit touching the correctness of
the same. The auditor is hereby authorized to
administer oaths l’or the purposes of this law.
Article 1661, V.T.C.S.. metalwhile. states the following:
Section 1. E,e shall not audit or approve any
such claim unl~s it has been contracted as
provided by law, nor any account for the purchase
of supplies or materials for the ,use of said
county or any of !.ts officers, unless, in addition
to other reqdirrments of law, there is attached
thereto a requisition signed by the officer
ordering same an2 approved by the county judge.
Said requisition must be made out and signed and
approved in triplicate by the said officers, the
triplicate to raprlin with the officer desiring the
p. 839
Honorable Patrick H. Slwons - Page 3 (JH-192)
purchase, the &rplicate to be filed with the
county auditor. cmd the original to be delivered
to the party from whom said purchase Is to be made
before any purchase shall be made. All warrants
on the county tlz!asurer. except warrants for jury
service, must be-counter signed by the auditor.
‘Sec. 2. The county judge of a county having an
auditor may waive by his owu written order the
approval of the county judge on requisitions. The
order shall be .recorded in the minutes of the
Cowissloners (Iourt. If the county judge’s
approval is waived. all claims must be approved by
the Conm&Monexs Court in open court. @mphesis
added).
The above requirements for the approval of claims do not apply to
payments out of the county treasury for salaries, judgments against
the county which are settl.c!d by the commissioners court. or purchases
under special contract. Attorney General Opinion 8-977 (1977).
The most recent ca;ltr discussing the auditor’s authority to
withhold his signature fxom salary warrants Is Smith v. I4cCoy. 533
S.W.2d 457 (Tax. Civ. App. - Dallas 1976. writ dlsm’d). In this case
three deputy sberiffs had been suspended without pay by the sheriff
and later reinstated. TCz sheriff requested the commissioners court
to award back pay for the period of the suspension. The comdssioners
court agreed to do so a:iLi issued the warrants, which the auditor
refused to co-sign, ques:::loning the legality of back payments for
salary to suspended couhty employees. The deputy sheriffs, as
plaintiffs, sued for a writ of mandamus against the auditor. seeking
to compel his co-signaturr:. The court found that the auditor did not
abuse his discretioh in r8eCusing to co-sign the warrants because the
matter of back payment prc!clented a “difficult legal question,” or, In
other words, that the plaintiffs did not as a matter of law have a
right to the salary payments.
Where a claimsnt’s r!L(:ht is established as a matter of law, the
auditor has a ministerial tluty to approve payment. Thus, in the case
of Jackson v. Leonard, 578 S.W.2d 879 (Tex. Civ. App. - Houston [14th
Dist.1 1979, writ ref’d n.r.e.), the court held that the audit6r could
not question the salary increases awarded justices of the peace
pursuant to the salary Ii::ievance committee procedures. The court
found that these claims were not claims subject to the auditor’s
approval authority under articles 1660 and 1661, but that he was under
a ministerial duty to cc-sign the warrants. See also Nacogdoches
COUlltY V. Jinkins. 140 S,,\l.Zd 901 (Tex. WV. App. - Beaumont 1940,
writ ref’d) (the county auditor had no authority to disapprove
district clerk claim for salary under articles 1660 and 1661).
p. 040
Honorable Patrick H. Simmons - Page 4 (JM-192)
In the case of Guerra v. Weathbrly, 291 S.W.2d 493 (Tex. Civ.
APP. - Waco 1956, nowrit),: the county had employed an attorney for
which the conmissioners court had ordered three separate warrants to
be issued serially as compensation. The county auditor refused to
co-sign the warrants and t’h: attorney sued for a writ of mandamus.
The court did not discuss al,ticles 1660 and 1661, as to whether or not
these payments were claims :subject to auditor approval, but held that
the conrmlssionera court was r,uthorized to employ an attorney and order
warrants for his compensatlc~r, to be Issued.
Earlier opinions from the attorney general’s office have been
less than ,clear regarding the’ auditor’s authority to disapprove salary
payments. None of the opinL,ns clearly conclude that the auditor may
simply withhold his signature if he believes that the expenditure
would be illegal. Attorney General Opinion O-6624 (1945) concerned
the employment and payment ol’ an inventory clerk for the county. This
opinion concluded that, pursuant to article 1651. regarding the
auditor’s authority to see to the strict enforcement of county
finances, the auditor would be authorized to inquire as to whether the
clerk was actually performing duties contracted for by the
commissioners court. The olbz.nion simply concluded that if the auditor
believes that an employee is not discharging his duties, he should
simply refuse to counter-sign the employee’s warrants. Attorney
General Opinion O-4053 (1541) concerned the authority of a county
attorney to continue salary payments to an individual not working on
account of personal injury. This opinion advised that the auditor has
the authority under article 1660 to require an affidavit from the
county commissioner for ir>m the injured employee worked, to the
effect that indeed the individual was employed and working. Ewever,
as we have discussed above!,, article 1660 does not apply to salary
payments, since they are not accounts or claims. Similarly. in
Attorney General Opinion O-5890 (1944). it was found that payrolls
signed by the respective county officials were’ required to be
submitted to the county autl:ltor for his approval under article 1660.
We believe that to the exta!nt that either of these opinions conclude
that articles 1660 and 1661 require prior approval by the county
auditor of salary payments, they are in error and are hereby
overruled.
In Attorney General Opinion O-5049 (1943). St was concluded that
the commissioners court’s duty to audit and settle claims against the
county pursuant to article 2351(10) cannot be delegated to the county
auditor under a standing o:c&er authorizing the auditor to pay county
officials and employees wIthJut periodic approval by the comlssioners
court. In other words, tbe monthly payroll reports prepared by the
respective county offlcialll are turned in to the commissioners court
for its approval and its order issuing salary warrants. See V.T.C.S.
art. 1637. Attorney General Opinion O-5049 concluderthat the
commissioners court cannot clelegate this responsibility to the county
p. 841
Honorable Patrick H. Slmorr - Page 5 (J&192)
suditor. In summary, we conclude that salaries paid to county
employees require c~issicl~,ers court approval before any warranxs may
be issued. The auditor’s prior approval is not required, but his
co-signature must be affixciil to the warrant before it may be paid.
SUMMARY
Salaries paid to county employees require
approval by tl~ co&ssloners court before
warrants may be issued but do not require prior
approval by tht! county auditor, although his
co-signature is required.
(l$&Y&b
Attorney Gsneral of Texas
TOM GREEN
First Assistant Attorney Grleral
DAVID R. RICHABDS
Bxecutive Assistant Attoane-r General
Prepared by David Brooks
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpio, Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellitiger
Nancy Sutton
p. 042