Untitled Texas Attorney General Opinion ( 2012 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
November 20,2012
The Honorable Craig D. Caldwell Opinion No. GA-0978
Cherokee County Attorney
Post Office Box 320 Re: Whether the Cherokee County Community
Rusk, Texas 75785 Supervision and Corrections Department may prescribe
a procedure that permits the issuance of checks without
the signature of the county auditor (RQ-1069-GA)
Dear Mr. Caldwell:
You ask whether the Cherokee County Community Supervision and Corrections Department
(the "CSCD") may prescribe a procedure that permits the issuance of checks without the signature
of the county auditor. 1
Section 76.002 of the Government Code requires the "district judge or district judges trying
criminal cases in each judicial district and the statutory county court judges trying criminal cases in
the county or counties served by the judicial district [to] establish a community supervision and
corrections department[.]" TEX. GOy'TCODEANN. § 76.002(a)(1) (West Supp. 2012). "The judges
described by Section 76.002 may appoint for the department a fiscal officer, other than the county
auditor." [d. § 76.004(c). Among other duties, the fiscal officer "is responsible for ... prescribing
accounting procedures for the department." !d. § 76.004(c)(3). One such accounting procedure,
prescribed by the CSCD's fiscal officer, provides "for the payment of bills ofthe CSCD [under] the
signature of the Cherokee County Treasurer and for the counter signature to be that of the Director
of the CSCD, instead of the County Auditor." Request Letter at 1. You inquire about the validity
of this procedure.
The CSCD is a "specialized local entity" under the terms of section 140.003, Local
Government Code, which includes in its definition "an adult probation office or department
established for a judicial district." TEX. Loc. GOY'T CODE ANN. § 140.003(a)(3) (West 2008).
Another portion of section 140.003 states that the "county auditor, if any, ofthe county that manages
a specialized local entity's funds has the same authority to audit the funds of the entity that the
auditor has with regard to county funds." [d. § 140.003(g). In a prior opinion, this office concluded
lLetter from Honorable Craig D. Caldwell, Cherokee Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen.
(June 7, 2012), http://texasattorneygeneral.gov ("Request Letter").
The Honorable Craig D. Caldwell - Page 2 (GA-0978)
that a probation department's funds must be deposited in the county depository and that the county
auditor is required to countersign a check or warrant drawn on those funds, as provided by section
113.043 of the Local Government Code. See Tex. Att'y Gen. Op. No. DM-257 (1993) at 3-5, 8.
In reaching this conclusion, the Attorney General stated that subsection 140.003(f) "incorporates the
requirements of sections 111.0922 and 113.043 of the Local Government Code and makes them
generally applicable to payments made by specialized local entities." Id. at 5 (footnotes deleted).
Attorney General Opinion DM-257 (1993) is directly applicable to the situation you pose.
N either section 76.004 nor any other provision of chapter 76 of the Government Code defines
the "accounting procedures" that the fiscal officer of the CSCD may prescribe. See TEX. GOv'T
CODE ANN. §§ 74.001-.018 (West 2008 & Supp. 2012). Section 113.043 of the Local Government
Code, however, makes clear that the county auditor may not be removed from the process of paying
checks or warrants:
In a county with a county auditor, the county treasurer and the
county depository may not pay a check or order for payment unless
it is countersigned by the county auditor to validate it as a proper and
budgeted item of expenditure.
TEX. Loc. GOV'T CODE ANN. § 113.043 (West Supp. 2012). Section 76.004 does not create an
exception to this clear statutory rule.
As was the case in Attorney General Opinion DM-257 (1993), whatever the scope of the
"accounting procedures" that the fiscal officer of the CSCD may prescribe, they may not include a
directive that removes the county auditor from the process of countersigning checks or warrants.
2Section 111.092 provides that "[t]he county auditor shall oversee the warrant process to ensure that the
expenses of any department do not exceed budget appropriations for the department." TEx. Loc. GOV'T CODE ANN. §
111.092 (West 2008).
The Honorable Craig D. Caldwell - Page 3 (GA-0978)
SUMMARY
Whatever the scope of the "accounting procedures" that the
fiscal officer of the Cherokee County Supervision and Corrections
Department may prescribe, they may not include a directive that
removes the county auditor from the process of countersigning checks
or .warrants.
Very truly yours,
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chairman, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee