Untitled Texas Attorney General Opinion ( 2008 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April 9, 2008
The Honorable Dan W. Heard Opinion No. GA-0618
Calhoun County Criminal District Attorney
211 South Ann Street Re: Authority of a county auditor to refuse
Port Lavaca, Texas 77979 payment to a former employee of a county
hospital on the ground that such payment is
unconstitutional (RQ-0640-GA)
Dear Mr. Heard:
You write to inquire about the authority of a county auditor to refuse to approve a payment
proposed and approved by a county-owned hospital. 1 After providing details regarding the proposed
payment and describing the county auditor's concerns, you ask whether the county auditor has the
"right to refuse payment of county hospital payroll on grounds that [the payment] is a[n]
unconstitutional grant ofpublic money, or must the county auditor accept the hospital administrator's
determination that there is adequate quid pro quo so as to avoid the payment being a violation ofthe
Texas Constitution[.]"2 Request Letter, supra note 1, at 2.
The subject of your question is a payment proposed by the hospital administrator of the
county-owned hospital to a former employee. See ide at 1. You inform us that the employee has
terminated employment and that the proposed payment is being offered to the former employee by
the hospital for some continuing obligations. 3 See ide You tell us the hospital administrator has
obtained a legal opinion concluding that the proposed payment conforms to the requirements of
article III, section 52 of the Texas Constitution. See id.; see also Odefey Letter, supra note 3. You
also tell us that the county auditor has consulted with your office regarding the legality of the
ISee Letter from Honorable Dan W. Heard, Calhoun County Criminal District Attorney, to Honorable Greg
Abbott, Attorney General of Texas, at 1 (Oct. 15, 2007) (on file with the Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter].
2See TEX. CONST. art. III, § 52(a) (prohibiting counties and other political subdivisions from making gifts or
grants of public funds to any individual or private entity).
3See also Letter from Anne Marie Odefey, Roberts, Roberts, Odefey & White, on behalfofBoard ofManagers,
Memorial Medical Center, to Shannon Salyer, Assistant District Attorney, Calhoun County (Oct. 10, 2007) (attachment
to Request Letter) [hereinafter Odefey Letter] (quoting Letter Memo, dated September 19, 2007, from hospital
administrator to former employee, outlining employee's continuing obligations).
The Honorable Dan W. Heard - Page 2 (GA-0618)
proposed payment but is unconvinced by the hospital administrator's argument "and continues to
believe the payment would violate" article III, section 52. Request Letter, supra note 1, at 1. In this
context you ask about the county auditor's authority. You do not ask us to evaluate and opine on the
constitutionality of the proposed payment. See generally id You instead seek our opinion as to
whether it is the county auditor or the hospital administrator who has authority to determine whether
the proposed payment meets the requirements of article III, section 52. See ide at 1-2.
County hospitals are governed by chapter 263 of the Health and Safety Code. See TEX.
HEALTH & SAFETY CODE ANN. chI 263 (Vernon 2001). Chapter 263 authorizes the commissioners
court of a county to create a county hospital. See id § 263.021. A county hospital is governed by
a board of managers, the members of which are appointed by the county commissioners court. See
ide § 263.041(a). The board ofmanagers is charged with the general management and control ofthe
hospital including management and control ofthe hospital's employees and "all matters relating to
its government, discipline, contracts, and fiscal concerns." Id. § 263.046(a). And as the governing
body of the county hospital, the board of managers has a duty to expend its public funds in
accordance with article III, section 52. See Tex. Att'y Gen. Ope No. JM-I030 (1989) at 4
(recognizing that the "determination ofwhether a particular expenditure ofpublic funds meets those
constitutional requirements is left, at least in the first instance, within the sound discretion of the
governing body that proposes to pay public funds to a private entity") (citing Dodson V. Marshall,
118 S.W.2d 621 (Tex. Civ. App.-Waco 1938, writ dism'd). Chapter 263 requires the board of
managers to "certify all bills and accounts, including salaries and wages, and transmit them to the
commissioners court, which shall provide for their payment in the same manner that other charges
against the county are paid." TEX. HEALTH & SAFETY CODE ANN. § 263.053(b) (Vernon 2001)
(emphasis added).
Charges against the county are paid by the county treasurer as required or directed by the
county commissioners court. See TEX. Lac. GOV'T CODE ANN. § 113 .041 (a) (Vernon 2008). Before
the commissioners court may direct a payment, each claim, bill, and account against the county must
be examined and approved by the county auditor. See id § 113.064(a); see also Anderson V. Ashe,
90 S.W. 872, 874 (Tex. 1906) (stating that the language of the predecessor statute of Local
Government Code section 113.064(a) "is mandatory, and makes the approval of the auditor a
condition precedent to the exercise of jurisdiction over the claim by the commissioners' court");
Crider V. Cox, 960 S.W.2d 703, 706 (Tex. App.-Tyler 1997, writ denied) (stating that the county
auditor's approval of a claim is a requisite to the commissioners court's approval and that without
approval, the commissioners court's approval of a claim is void). This is so because the county
auditor, as an independent officer appointed and removed by the district judges, is an important part
of the "delicate system of checks and balances" designed to protect county funds. See Smith V.
McCoy, 533 S.W.2d 457, 459 (Tex. Civ. App.-Dallas 1976, writ dism'd); see also TEX. Lac.
GOV'T CODE ANN. §§ 84.003 (Vernon 2008) (providing for appointment ofcounty auditor by district
judges), 84.009 (authorizing removal of county auditor by district judges for official misconduct or
incompetence).
As one component of the "system of checks and balances," the county auditor has a duty to
ensure that claims paid by the county strictly comply with the law. TEX. Lac. GOV'T CODE ANN.
The Honorable Dan W. Heard - Page 3 (GA-0618)
§ 113.065 (Vernon 2008); see Smith, 533 S.W.2d at 459-60. In the fulfillment of this duty, the
county auditor must examine and approve any presented bills and accounts of the county hospital
before the county commissioners court can order payment. See Tex. Att'y Gen. Ope Nos. MW-12l
(1979) at 2 (concluding that approval and audit by the county auditor is a prerequisite for the bills
and accounts ofa county hospital), V-1265 (1951) at 4 ("Although the management of the county
hospital is vested in the board ofmanagers, the commissioners[] court must approve all accounts."),
V-l100 (1950) at 9 ("[I]t is our opinion that the general duties of the County Auditor in regard to
auditing county hospital accounts are, in the main, the same of those in regard to any other county
office."); Tex. Att'y Gen. LO-89-100, at 2 (stating that "bills and accounts of the county hospital
must be submitted to the county auditor for his examination and approval prior to their presentation
to the commissioners court for its approval and order authorizing payment"). Accordingly, we
conclude that because county.hospital bills and accounts are paid in the same manner as other
accounts of the county and because the county auditor has a duty to ensure county funds are spent
in strict compliance with the law, the county auditor has authority, in the exercise of reasonable
discretion, to refuse to approve a payment of a county hospital on the grounds that it is prohibited
by the Texas Constitution. See TEX. HEALTH & SAFETY CODE ANN. § 263.053(b) (Vernon 2001);
TEX. Loc. GOV'TCODEANN. § 113.064(a) (Vernon 2008); Tex. Att'y Gen. Ope No. JM-133 (1984)
at 2 (recognizing that auditor's authority to withhold approval of payments may not be arbitrary)
(citing Smith, 533 S.W.2d at 460).
We believe it important to note, especially in the circumstances you describe, that the county
auditor's authority and discretion is not unfettered. The county auditor may "neither arbitrarily nor
in contravention oflaw withhold approval ofpayment." Smith, 533 S.W.2d at 460. In circumstances
such as you describe where the county auditor has withheld approval of a payment that· the
appropriate governing body has evaluated and approved under article III, section 52, the courts would
be the final arbiter ofwhether the payment satisfied the constitution. See ide (discussing a challenge
to a county auditor's withholding of approval of a payment and contrasting the circumstances that
support a mandamus action against the ~uditor or a suit against the county); Tex. Att'y Gen. Ope No.
GA-0247 (2004) at 7 (distinguishing between mandamus action against county auditor and suit
against county); see also Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers' Compo
Comm 'n, 74 S.W.3d 377, 383-84 (Tex. 2002) (setting out three-part public purpose standard by
which to examine the merits of a payment under article III, section 52).
The Honorable Dan W. Heard - Page 4 (GA-0618)
SUMMARY
The bills and accounts of a county hospital must be certified
by the hospital's board of managers and transmitted to the county
commissioners court. All bills and accounts, including salaries and
wages, of a county hospital are paid in the same manner as charges
made against a county, which charges must be approved by the
county auditor and paid by order of the commissioners court. The
county auditor has authority to determine whether any proposed
payment strictly complies with the law. The county auditor, in an
exercise of reasonable discretion, may refuse to approve a payment
on the grounds that it is unconstitutional. As between the county
hospital board of managers and county auditor, a court would be the
final arbiter of whether the payment satisfied the constitution.
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee