Untitled Texas Attorney General Opinion ( 2011 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 7, 2011
The Honorable D. Matt Bingham Opinion No. GA-0839
Smith County Criminal District Attorney
100 North Broadway, 4th Floor Re: Authority of a county judge to unilaterally grant
Tyler, Texas 75702 access to county financial records to a volunteer
financial consultant (RQ-0908-GA)
Dear Mr. Bingham:
You ask whether a county judge is authorized to unilaterally grant access to county financial
records to a volunteer financial consultant. 1 You inform us that the county judge, in his capacity as
the county budget officer, has accepted the offer of a professional financial consultant "to assist with
assessment of financial information and budget recommendations." Request Letter at 2. Although
you do not specify what tasks the judge has asked the consultant to perform, you enclose the judge's
letter to county officials asking them to assist the volunteer consultant "to understand the operation
and financial requirements of each department" in preparing for the county's upcoming budget.
Request Letter at Exhibit A. The consultant has asked county officers for information such as job
descriptions and salary amounts, and has indicated that any confidential information should be
redacted. Request Letter at 2. On behalf of one of the members of the commissioners court, you
first ask whether a county judge, as the county's budget officer, may unilaterally grant access to the
county's financial records to a volunteer financial consultant without obtaining permission from the
full commissioners court. Id.
The powers of a public officer, such as a county budget officer, are limited to those
"expressly authorized by law or implied from the law." In re J.P., 296 S.W.3d 830, 836 (Tex.
App.-Fort Worth 2009, no pet.) (citing Fort Worth Cavalry Club v. Sheppard, 83 S.W .2d 660, 663
(Tex. 1935)). Similarly, a county commissioners court is limited to the powers expressly granted
by the Texas Constitution and statute and those necessarily implied therefrom. City of San Antonio
v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003). While the commissioners court has broad fiscal
responsibility, "the County Commissioners Court is not charged with the management and control
of all of the County's business affairs." Pritchard &Abbottv. McKenna, 350 S.W.2d 333, 335 (Tex.
1961). An elected official, such as the county judge, "has the sphere [of authority] that is delegated
to him by law and within which the Commissioners Court may not interfere or usurp." Id.
I See Request Letter at 1-2 (available at http://www.texasattorneygeneral.gov).
The Honorable D. Matt Bingham - Page 2 (GA-0839)
Consequently. to determine whether the county judge as budget officer may take an action
independently of the commissioners court, we examine the Legislature's delegation of county
budgeting duties.
You indicate that Smith County operates under chapter 111, subchapter A, with the county
judge as budget officer. Request Letter at 3.z
Subchapter A expressly requires the judge to prepare
and file a proposed budget, and specifies the categories of financial information the judge must
include in the proposed budget. TEX. Lac. GOV'T CODE ANN. §§ 111.002-.004, .006 (West 2008).
With respect to obtaining information to prepare the proposed budget, the county judge is authorized
to "require any county officer to furnish existing information necessary for the judge to properly
prepare the budget." Id. § 111.005(a). By contrast, subchapter A gives the commissioners court few
express duties concerning the preparation of the prop'osed budget. The commissioners court
determines when the county judge should prepare a proposed budget. !d. § 111.003(a). Once the
county judge has filed the proposed budget, the commissioners court must set the proposed budget
for public hearing. Id. §§ 111.006-.007. And, at the county judge's request, the commissioners
court may issue an order to a county officer that has failed to provide the information sought by the
county judge. Id. § l11.005(b ).3
Subchapter A's allocation of authority to the judge to require information from county
officers and to request the commissioners court to issue an order requiring such information strongly
suggests that the county judge need not seek the commissioners court's permission before exercising
authority under section l11.005(a). Id. § l11.005(a). Your concern, however, is not with the county
judge's authority to require information under section l11.005(a), but with the means the county
judge has chosen to exercise that authority through the volunteer consultant.
An elected officer who has been charged with a statutory duty has a degree of discretion in
the means of discharging that duty. See Hooten v. Enriquez, 863 S.W.2d 522,531 (Tex. App.-El
Paso 1993, no writ) (determining that county clerks have "exclusive authority" to choose individuals
to assist them in the discharge of statutory duties of office and to dictate the assistant's duties).
Generally, when an officer has been assigned a duty or power by statute, the officer may not delegate
that duty or power to another. Lipsey v. Tex. Dep't of Health, 727 S.W.2d 61, 64-65 (Tex.
App.-Austin 1987, writ ref'd n.r.e.). Nevertheless, a public officer or entity generally may obtain
assistance from others to perform nondiscretionary ministerial and administrative tasks necessary
to carry out the officer's or entity's statutory duties. See, e.g., City of San Benito v. Rio Grande
Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003) (recognizing that a governing body may not
2Compare TEX. Loc. GOV'TCODEANN. §§ 111.001-.002 (West 2008) (providing that the county judge is the
budget officer in a county operating under subchapter A), with id. §§ 111.032 (providing that the county auditor is the
county budget officer in a county operating under subchapter B), and 111.062 (providing that an individual appointed
by the commissioners court is the budget officer in a county operating under subchapter C).
3The commissioners court is authorized and required to act on the proposed budget at the conclusion of the
budget hearing, making "any changes in the proposed budget that it considers warranted by the law and required by the
interest of the taxpayers." !d. § 111.008(a)-(b).
The Honorable D. Matt Bingham - Page 3 (GA-0839)
delegate the right to make decisions but may delegate the right to perform acts and duties necessary
to the body's decision).4 Thus, we conclude that the county judge may designate ministerial and
administrative tasks to be performed by the consultant necessary to carry out the county judge's duty
to prepare a proposed budget and in aid of the judge's authority to obtain budget information from
county officers under section 111.005(a) of the Local Government Code.
You also inform us that the consultant has filed Public Information Act ("PIA") requests with
the county officers seeking the same information, and you ask whether it was necessary to file such
requests to obtain access to the pertinent budget records. Request Letter at 2, 4. As discussed above,
the consultant may receive budget information to the extent authorized by the county judge's
authority under section 111.005(a). Chapter 111, subchapter A neither expressly nor implicitly
invokes the provisions of the PIA. Rather, the only enforcement mechanism under the subchapter,
should a county officer fail to provide information as required by the county judge, is the county
judge's authority to seek an order from the commissioners court directing the officer to produce the
information. TEX. Loc. GOV'T CODE ANN. § 1l1.005(b) (West 2008). Consequently, a consultant
is not required to submit PIA requests in order to seek information on behalf of the county judge
under section 111.005(a) of the Local Government Code.
'See also Tex. Att'y Gen. Op. No. JC-OS44 (2002) at 2 (superceded by statute on unrelated point) (determining
that mayor authorized to require other city officers to provide budget information may delegate nondiscretionary
ministerial and administrative tasks necessary to carry out statutory duties as city budget officer).
The Honorable D. Matt Bingham - Page 4 (GA-0839)
SUMMARY
A county judge is not required to seek approval before
delegating nondiscretionary and administrative tasks to accomplish
a county judge's statutory duties as county budget officer. Should a
county officer fail to provide budget information requested by the
county judge, the county judge's remedy is to seek an order from the
commissioners court.
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee