Untitled Texas Attorney General Opinion ( 1987 )

THE ATTORSEY GESERAL
OF TEXAS
October 29. 1987
Honorable Dale Hanna Opinion No. m-818
Johnson County Attorney
Johnson County Courthouse Re: Whether a commissioners
Cleburne, Texas 76031 court is authorized or re-
quired to fund an independ-
ent audit of the county
clerk's office under certain
circumstances
Dear Mr. Hanna:
You ask:.
Can or must the commissioners court of
Johnson County, Texas pay for an independent
audit of the county clerk's office which was
done at the request of the county clerk
without prior commissioners court approval
in preparation for his trial on a charge of
theft and which resulted in his acquittal?
You furnish the following factual background:
During the summer of 1986 a misdemeanor
indictment charging theft was filed against
the county clerk of Johnson County, Texas.
The allegation was that the county clerk had
taken money from the office for personal
use. A jury trial was held and the county
clerk was found not guilty in October, 1986.
During the course of preparing for trial,
the county clerk hired an independent C.P.A.
'to do an audit of his office. This was done
at a cost of $7,700.00. After the trial,
the county clerk at a meeting of the Johnson
County commissioners court on December 8,
1986 asked the commissioners to consider
reimbursing him for the audit in view of his
acquittal and in view of the many recommen-
dations made by the independent auditor
p. 3879
Honorable Dale Hanna - Page 2 (JM-818) I
resulting in improvements in internal finan-
cial controls in the office of the Johnson
county clerk's office.
Additional factual information furnished by YOU
reflects that there was no reDresentation bv the county
clerk or anvone else that the countv was to be resDonsible
for the audit and there was no knowina acceDtance of
benefits bv the county.
At the time of the acts in question, article 1641,
V.T.C.S. (codified by the 70th Legislature as section
115.031 of the Local Government Code), provided in
pertinent part:
Anv Commissioners Court, when in its
iudoment an imDerative Dublic necessitv
exists therefor. shall have authoritv to
emDlov a disinterested, cornDetent and exDert
public accountant to audit all or any part
of the books, records, or accounts of the
county: or of-v district. countv or
precinct officers agents, or employees,
including auditors'of the counties, and all
governmental units of the county, hospitals,
farms, and other institutions of the county
kept and maintained at public expense, as
well as for all matters relating to or
affecting the fiscal affairs of'the county.
The resolution providing for such audit
shall recite the reasons and necessity
existing therefor such as that in the
judgment of said court there exists official
misconduct, willful omission or negligence
in records and reports, misapplication,
conversion or retention of public funds,
failure in keeping accounts, making reports
and accounting for public funds by any
officer, agent or employee. . . . (Emphasis
added.)
Article 1641 further provides the manner for giving
notice of such resolution and its adoption by the commis-
sioners court. It also requires that any contract entered
into by the court for such an audit shall be made in
accordance.with the statutes applicable to the letting of
contracts by the court.
p. 3880
Honorable Dale Hanna - Page 3 (J+818)
Article 1641 is explicit in vesting authority to
contract for an audit solely in the commissioners court.
Moreover, article 2351(10), V.T.C.S. (codified by the 70th
Legislature as section 115.031 of the Local Government
Code), provided at the time in question that the
commissioners court shall audit and settle all accounts
against the county and direct their payment. &S Attorney
General Opinion JM-725 (1987). 'Under the scenario you
have provided, the commissioners court did not enter into
the contract for the independent audit of the county
clerk. Clearly, there was no express contract upon which
the county is liable for payment of the audit.
Under certain circumstances, a county or city can be
held liable for benefits under a contract which is not
made in conformity with the constitution, state statute or
city charter. In Harris Countv v. Emmite, 554 S.W.2d 203
(Tex. Civ. App. - Houston [lst Dist.] 1977, writ dism'd),
the appellate court found that there was "some evidence"
which would support a jury finding that the county "know-
ingly accepted benefits" where the evidence reflected the
following:
Plaintiff and Harris County Commissioners
Court entered into two successive written
employment contracts providing that plain-
tiff would perform consultation services for
the county's Manpower project for a stipu-
lated number of hours at a stipulated hourly
rate. A third contract was prepared and the
plaintiff, in anticipation of its execution,
worked an additional 50 hours, but it was
not executed by the Commissioners Court and
plaintiff was not paid for that work.
. . . .
The record contains several references to
the county's knowledge, through its
representatives other than Commissioners
Court, of plaintiff's additional services.
Mr. Jeff Campbell, then director of the
Harris County Manpower program, testified
that he had asked plaintiff to continue with
his work pending the authorization of the
third contract, since the program#s standard
procedure was to pay for these over-runs by
making the contracts retroactive. co1 .
Dittman, iiason between Mr. Campbell's
p. 3881
Honorable Dale Hanna - Page 4 (JM-818)
department and the county judge , was
informed of the over-run and approved
it. . . . Mr. Campbell answered the
following guestion--
Q. Do you think that the over-run work
was beneficial to the county?
A. Absolutely.
544 S.W.2d at 204.
The court stated that the following principles of law
govern in such circumstances.
*It is the settled law in this State, as
established by the decisions of this court,
that where a municipality knowingly receives
property or services or an agreement which
it had power to enter into as a contract,
but which was not legally entered into so as
to make it binding as a contract, it will be
compelled to pay the reasonable value of the
property or services so received, as on an
implied contract. In such instances it is
not correct to say that the municipality is
estopped to deny that the illegal agreement,
as such, is a binding contract. The rule
correctly stated is that in such instances
the municipality is liable on an implied
contract to pay the reasonable value of the
property or services furnished to and
accepted by it. In the instances under
discussion the illegal agreement is not
enforced as a contract. To the contrary,
the illegal agreement such ' not
enforced at all. The %tract Fiat is
enforced is one that the law implies,
because justice demands that a municipality
shall not be permitted to receive and retain
the benefits of an agreement without paying
the reasonable value of such benefits.#
!Citv f Ho St Finn, 139 Tex. 111, 161
S.W.2: 776"(1::2;.
544 S.W.2d at 204-05.
Unlike !&unite, under your factual scenario you state
there was never any representation by anyone that the
p. 3882
Honorable Dale Hanna - Page 5 (JM-818)
county was to be liable for the audit and there was no
knowing acceptance of benefits by the county. It is our
opinion that under the foregoing facts the county is not
liable under the theory of implied contract for the cost
of the audit.
You also ask if the county is authorized to pay for
the audit. That which the commissioner's court could
authorize in the first instance could be ratified by it at
a subsequent date. Wilson v. Countv
s.W.2d 393, 397 (Tex. Civ. App. - Carp:: C,'~%n'l9``~
writ ref'd n.r.e.). This principle of law was applied in
Anaelina Countv v. Kent, 374 S.W.2d 313, 317 (Tex. Civ.
APP. - Beaumont 1963, no writ), where it was stated:
The fifth point asserts that since no
official action was taken by the Commis-
sioners Court instructing Kent to proceed
with the final plans, the Court acts only as
a body. and through its minutes, Kent was
entitled to recover only for the sum of
$2,000.00 representing his work on the
Hill-Burton Fund application. The answer to
this is 'that what the Commissioners Court
could approve in the first instance, it may
ratify, and its order and resolution of
December 30th, 1958, clearly ratified the
work he had done to that time.
This raises the question whether the commissioners
court of Johnson County could have entered into a contract
for an independent audit of the county clerk under the
provisions of article 1641 at the outset. This would
require the commissioners court to make a determination of
whether in its judgment an imDerative DUbliC necessity
existed for such audit. In addition the commissioners
court must comply with the other requirements of article
1641. It is our opinion that the commisioners court may
pay for the audit if it chooses to ratify the
authorization of such audit in accordance 'with the
requirements of article 1641.
SUMMARY
JohnsonCounty is not liable to pay for
an independent audit of the county clerk of
that county which was done at the request of
the county clerk. The commissioners court
of Johnson County may pay for the audit if
p. 3883
Honorable Dale Hanna - Page 6 (JN-818)
it chooses to do so by ratifying the hiring
of the independent audit or in accordance
with the requirements of article 1641,
V.T.C.S. (now codified as section 115.031 of
the Local Government Code).
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 3884