Untitled Texas Attorney General Opinion ( 1970 )

. .
Bon. Wiley L. Chmthun Opinion #o. M-756
Dietrict Attorney
. 24th Judicial District Re: Duty, if any, of County
Cuero, *exas .77954 . Auditor to examine county
jail records pertaining to
the ccmfinemenitand release
Dear Mr: Cheathsxnr of county prisoners.
In your letter requesting an official opinion of
this office, you state that the 24th Judicial District for
which you serve as District Attorney, consists of five counties.
You statefurther that the Sheriff of one of these counties has
appsrently been releasing soms of the prisoners from the county
,jailprior to the expiration of their lawful sentences. You
desire that a review of county jail reaards bs undertaken in
order to aetennine to what extent this may have occurred so
that the matter may be taken before the Grand Jury. You inquire
as to the proper statutory.~proceauresto be'follawed and also
expressly ask.the following question in this connectionr
*Whether it is the auty of the County
Auditor of the county in question to examine
county jail records pertaining to the confine-
ment and release of county'prisonersin aa= to
determine whether the Sheriff has released prisoners
from the county jail prior to the expiration of
their lawful sentences?"
Acceding to a standara reference work, *an'audit'
is an examination by a qualified expert of the financial state-
ments and accounting'recordsof a business enterprise, person,
agency or institution in oraer to enable him (the auditor) to
arrive at ana report an informed opinion as to the material
accuracy and reliability of the financial statements examined.*
q xianc@& (4th aa. 1968, Ronald Press .Company) .
Similar aefiaitiOn8'appearin Black's Law Dictfodarv (4th Ea. ~_
1957 1 l
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lion.Wiley.L. Cheatham, page 2 (M-756)
Both of the cited authorities appear to be in general
agreement in restricting the comon usage of the word *audit*
to a review of financial records and supporting evidence.
While Article 1646a, Vernon's Civil Statutes.,provides
that the Comiseioners' Court of any county under twenty-five!
thousand population *may have an auait made of'all the books of
the county" and *the district judge or grand jury may order said
audit if either so desires,* this statute was repealed in 1955.
Acts 54th Leg. R. S. 1955, Ch. 414, p. 1.117,1118, Sec. 4. Alao,
see Attorney General Opinion O-2684 (1940). holding it uncon-
stitutional.
Under Article 1641, Vernon's Civil Statutes, the Le9-
islature has provided that,
Commissioners'Court, when in its judg-
ment an imperative public necessity exists therefor,
shall have authoritv to employ a disinterested, cam-
petent and expert public accouhtant to audit all or
anv wrt of the books. records, or accounts of the
counti ... as well as for all matters relating to or
affecting the fiscal affairs of the county. The
resolution providing for such audit shall ret-
it0
the reasons and necessity existing therefor such
as that in the iudcsaentof said court there zts
official misconduct ...W (Emphasis added.1
This statute was intended.togive the Commissioners' Court the
power to secure an audit of the county records of county of-
ficers either independent of or in addition to any other audit
conducted by a county auditor. It is not limited to county fi-
nances or fiscal affairs, for the statute expressly confers
authority to audit "all or any part of the books, records or
accounts of the countyn ana concerns all officers, agents,. or
employees and county units and institutions "a0 well as fbr
all mstters* involving ufiscal affairs.*
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mn. Wi1ey.L. cheatham, page 3 (M-756)
When any sheriff permits a prisoner committed to jail
to remain out of jail without authority, he violates Article
2.18, 1040, 1046, Texas Code of Criminal Procedure; Articles
317, 318, 319, 323, 324,'Texas Penal Code, and Article 5116,
Vernon's Civil Statutes. uev v. Stat& 14 Tex.',400(1855);
pufek v. Harrison 289 S.W. 741 (Tex.Civ.App.1927, no writ]7
Rx Parte Wyatt, 29 Cr. R. 398, 16 S.W. 301 (1891). It ie the
duty of the Sheriff to give notice to'the district or county
attorney, where'there be one , on the first day of each faonth,
listing the names of all prisbners in his custody and showing
the authority under whichhe detains them. Article 2.19, Texas
Code of criminal Procedure. Consequently, the'.districtor
county'attorney,may, when he discwers that prisoners have been
unlawfully let.out of jail by the Sheriff, call such to the
attention of the Commissioners~Court for their appropriate
action, which may include, in the exercise of their discretion,
invoking the'prwis$ans of Article 1641. In the alternative or
in addifion to an audit of the official county records of the
Sheriff, the D$str$ct or County Attorney may take the matter
before the.giand jury for their appropriate action, which might
inalude a subpoena.of all the'pertinent records of ,the Sheriff.
Article 5118a, Vernon's civil 8tatuteo, providing
for conmutation for qood OonauOt of prisoners,,its ~forfeiture,
.and the keeping of a record of same, directs as follows:
* ....The sheriff shall keep or cause'to be
,kept a conduct record in card or ledger form and a
C&lendar.cardon each inmate showing all forfeitures
.ofaommutation time and the reasons therefor."
"We have concluded that the official prisoner records
required to be keptby the sheriff in this connection, however,
are not in the nature.of records relating to fiscal~matters or
county finances which the County Auditor is required to audit
under the statutes'pertainin~to'his'duties and authority.
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mm. Wiley L. Cheatham. page 4 (M-756)
Articles 1645, et. seq.. Vernon's Civil Statutes,set
out the specific duties and authority of the office of County
Auditor. An overall review of these statutes confirms that the
legislature,'sintent was to give to the office of County Auditor
statutory duties and responsibilitiespertaining to the examina-
tion and audit of such records and property as mav relate to
7. The County Auditor's office has been granted
'no general authority which would authorize or rewire such
officer to search through the records of other county officials
except as such a search might be required for verification pur-
poses under good accounting procedures in connection with a
financial audit, and, in this cotinection,it should be noted8
"The powers and duties of public officer8 are
quite generally presaibed by the (&) constitu-
tion aad statutes, and, subject to constitutional
limitations,these matters are under the control of
the legislature: in many instances the ~constitution
expressly gives it power to prescribe the duties of
particular officers. The term 'duties' in such a
want to the leuislature comwehends the further
idea of powe r a authoritv, and the lesislative act
will be looked to for the authoritv of the officer.
as well as for a definition of his duties. Powers
and duties are coexteneive, and an officer has no
authoritv to perform an act in respect of which no
dutv has bee made to devolve on him." 47 TexJur:
2d 138-39, Gblic Officers, Sec. 105. (Emphasis added).
"Public officers ... posses8 onlv such powers
as are exvresslv conferred on them bv law or are
necessarilv implied from the lowers 80 conferred.
Thev cannot lesallv oe f m acts not authorized
bv existins law." Lq.'a?pp. 139-40, Sec. 106.
Powers .entrustedto county officers generally emanate
from the legislaturealone. Consequently, I'.. . the measure
and limit of those powers are to be found in the statutes, and
whim a power claimed for them is not,conferred by some statute
it must be held not to exist . . .I' Tarrant Countv v. Ratt&kiq
Utle Co., 199 B.W.2d 269, 273 (Tex.Civ.App. 1947, no writ).
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Ron. Wiley L. Cheatham,.page 5 (M-756)
pursuant to the above discussion, we answer your first
question as follows:
The County Auditor has no general authority to examine
the records of public officials except as may be required for
verificationpurposes under good accounting procedures in con-,
nection with a financial audit. Therefore, the County Auditor
has no duty orauthority to examine county jail records psr-
taining to the confinement and release of county prisoners
unless he ia seeking informationas to the use or misuse.of
county funds. .,.,
Your second question inquires aa to who, if anyone.
has the authority to compel the County Auditor to examine county
jail records pertaining to the confinement a,ndrelease of county
prieone4rs.
Since we have found in response to your first question
that the County Auditor would have no duty'to examine county
jail records pertaining to the confinement and release of county
jail records under the facts presented (no alleQatfon of misuse
of carnty funds), it follows that the County Auditor cannot be
compelled to perform the examination of such records--i.e. a
public official cannot be cospelled to undertake a job that it
is not his auty to perform.
SUMMARY
1. When he discovers that prisoners have
been unlawfully let out of jail by the Sheriff,
the District or County Attorney may call such to
the attention.of the Cormissioners' Court for
their appropriate action, which may include, in
the exercise of th6'i.r
disaetion, invoking the
provisions of Article 1641, V.C.S. In the alter-
native or in addition thereto, he may present such
matter~sto the grand jury ~fortheir appropriate
.action,which may include a subpoena of all the
pertinent records of the Sheriff.
.
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.x&u.Wiley L. Cheatham. page 6 (M-756)
2. ft is not the duty of the County Auditor
to examine county jail records pertaining to the
confinemsntand release of county prisoners in
order to determine only whether the Sheriff has
released prisoners from the County Jail prior to
the expiration of their lawful sentences. The
County~Auditorwould have no duty or authority
to audit such records unless he were seeking.in-
formation as to the use or misuse of county funds.
3. Since the County Auditor has no duty to
~exasinethese records under the facts presented
(no allegation of misuse of county funds) it follows
.thst he cannot be compelled to undertake an exambm-
titan of these records.
G6mtral Of TexSS
Preparedby Larry J. craddock and,Austin Bray :
Assistant Attorney Generals
AFPRovBDr
OPIWIOW CCMWITTBE
Xerns Taylor, Chairman
W. E. Allen, Co-Chairman
Sam Jones
Jim Swearingen
Dyer noore
8. J. Aronson
MEADItF.GRIFFIN :
Staff Legal As8istant
ALFRED-
pxecutive Assistant
XOLA WxIm
First Assistant
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