Untitled Texas Attorney General Opinion ( 2011 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 1,2011
The Honorable Elton R. Mathis Opinion No. GA-0869
Waller County Criminal District Attorney
846 Sixth Street, Suite I Re: Whether a county auditor is responsible for
Hempstead, Texas 77445 oversight of a constable's continuing education funds
allocated under section 1701.157, Occupations Code
(RQ-0944-GA)
Dear Mr. Mathis:
The Legislature has directed the comptroller to allocate money to local law enforcement
agencies "for expenses related to the continuing education of persons licensed" as law enforcement
officers. TEX. OCe. CODE ANN. § 1701.157 (a)(West Supp. 20 10). You ask three questions related
to the authority and duties of the county auditor and county constable with regard to funds held for
this purpose in the state law enforcement officer standards and education fund account ("LEOSE
funds") 1
You first ask if the county auditor has "oversight of the books and records of the constable
which are related to LEOSE funds made available under [Occupations Code] section 1701.157."
Request Letter at 2. The Local Government Code gives the county auditor "general oversight ofthe
books and records of a county, district, or state officer authorized or required by law to receive or
collect money or other property that is intended for the use of the county or that belongs to the
county." TEX. Loc. GOV'TCODEANN. § 112.006(a)(West2008) (emphasis added); id. § 115.901(a)
(West 2008) (requiring that the county auditor examine the accounts ofthe constable). This office
has consistently concluded that "a county auditor is authorized ... to audit all funds held by
an officer in his official capacity, whether or not they are county funds." Tex. Att'y Gen. Op. No.
GA-0704 (2009) at 2. Your question arises, however, due to language in Occupations Code
subsection 1701.157 (c) stating that LEOSE funds received by law enforcement agencies are "subject
to audit by the comptroller," and funds spent are "subject to audit by the state auditor.,,2 TEX.OCC.
'Letter from Honorable Elton R. Mathis, Waller County Criminal District Attorney, to Honorable Greg Abbott,
Attorney General of Texas at 2 (Feb. 15, 2011), https://www.oag.state.tx.us/opiniindex_rq.shtml ("Request Letter").
2A statutory predecessor to Occupations Code section 1701.157 required counties and municipalities to conduct
their own audit of these funds and send the results of the audit to the comptroller annually. This requirement was deleted
(continued ... )
The Honorable Elton R. Mathis - Page 2 . (GA-0869)
CODE ANN. § 1701.l57(c) (West Supp. 2010). You ask whether, because LEOSE fund audits are
performed at the state level, the county auditor is prohibited from auditing LEOSE funds. Request
Letter at 2.
When possible, we are to harmonize potentially conflicting or overlapping statutes so that
effect is given to both. TEx. GOV'T CODE ANN. § 311.026(a) (West 2005). While Occupations Code
section 1701.157 grants authority to the named state officials to perform audits on LEOSE funds,
it does not expressly revoke the general statutory duty of a county auditor to "examine the accounts,
dockets, and records of each ... constable ... to determine if any money belonging to the county and
in the possession of the officer has not been accounted for and paid over according to law." TEX.
Loc. GOV'T CODE ANN. § 115.901 (West 2008); see also id. § 115.0035. It is therefore possi\lle to
harmonize these statutes by construing them to provide overlapping audit authority to the State
comptroller and state auditor and to the applicable county auditor.
You next ask whether the county constable must maintain LEOSE "funds in a bank that has
a contract with the county as an official depository of county funds." Request Letter at 2. Chapter
116 of the Local Government Code requires that county officials designate a general county
depository where county funds-and funds under the county's control-must ordinarily be
deposited. See TEX. Loc. GOV'T CODE ANN. §§ 116.001-.155 (West 2008); Tex. Att'y Gen. Op.
No. JC-0195 (2000) at4. Under section 116.021, the commissioners court must select "one or more
banks in the county ... for the deposit of the county's public funds.'~ TEX. Loc. GOV'TCODEANN.
§ 116.021 (a) (West 2008). Thereafter, the "county treasurer shall transfer to the depository all ofthe
county's funds." !d. § 116.113(a). Chapter 116 applies to "money collected or held by a district,
county, or precinct officer in a county." Id. § 116.002(a). A constable is a county officer. See TEX.
CONST. art. V, § 24 (including "constables" in a list of county officers that may be removed by
district court judges). Thus, LEOSE funds allocated to a county officer, including a constable, must
be maintained in the manner required by chapter 116.
Your final question asks about potential alternative methods a county auditor may use to
access account records in the event that no direct authority exists. Request Letter at 2. Because we
conclude that the county auditor has general oversight over the constable's financial books and
records related to LEOSE funds, we need not address your third question.
'( ... continued)
in 1997. See Act of May 23, 1997, 75th Leg., R.S., ch. 915, 1997 Tex. Gen. Laws 2901, 2902 (codified as an
amendment to former Government Code section415.0845), repealed by Act of May 13, 1999, 76th Leg., R.S., ch. 388,
§ 6(b)(l), 1999 Tex. Gen. Laws 1431, 2440. Although county auditors have been relieved of their mandatory duty to
annually audit and report their audit results to the comptroller, the repeal of that mandatory obligation does not detract
from the county auditor's general oversight and auditing authority.
The Honorable Elton R. Mathis - Page 3 (GA-0869)
SUMMARY
Pursuant to Local Government Code section 112.006, the
county auditor has "general oversight of the books and records of a
county ... officer authorized or required by law to receive or collect
money ... that is intended for the use of the county or that belongs to
the county." TEx. Loc. GOV'TCODEANN. § 1 12.006(a) (West 2008).
Such authority includes oversight of funds allocated to a constable
from the state law enforcement officer standards and education fund
account ("LEOSE funds"). Accordingly, LEOSE funds must be
maintained in an official county depository pursuant to chapter 116
of the Local Government Code.
Very truly yours,
~
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chair, Opinion Committee
Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee