Untitled Texas Attorney General Opinion

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
August 8, 2017
The Honorable David P. Weeks Opinion No. KP-0160
Walker County Criminal District Attorney
1036 I Ith Street Re: Whether a commissioners court may
Huntsville, Texas 77340 enter an order authorizing the treasurer to pay
certain types of claims and bills prior to
presenting the actual claims or bills to the
commissioners court (RQ-0150-KP)
Dear Mr. Weeks:
You ask on behalf of the treasurer and the auditor of Walker County whether a
commissioners court may enter an order authorizing the treasurer to pay certain types of claims
and bills prior to presenting the actual claims or bills to the commissioners court. 1 You state that
the county's biweekly payroll schedule does not always coincide with the commissioners court's
regular meetings, held the second and fourth Mondays of each month, such that the commissioners
court may timely approve payroll at a regular meeting. Request Letter at 1-2. You also tell us the
county auditor proposed an order to provide for expedited payment to timely meet payroll, ensure
continuity of service, and avoid late fees for credit cards. Id. at 1.
The proposed order recites that a prior order of the commissioners court waived the
requirement that all claims be approved in open court. Id. at Exhibit "A." Under the proposed
order, the commissioners court would provide blanket approval for the following items before they
accrue:
• Payroll, related employee deductions.and benefits and payroll taxes
• Debt Service Payments .
• Payments to the State and Federal Government and their agencies
• Orders of District Courts and County Court at Law
• Grant related payments to meet grant timing deadlines
• Utility and telecommunications services to assure continuation of service
• Fuel cards to assure continuation of service
• Credit card bills that are paid by drafts initiated by the Credit Card Company
Id. Such claims could be paid "after the invoice/claim has been presented with appropriate
documentation and authorizations by department heads and elected officials and following
1
Letter from Honorable David P. Weeks, Walker Cty. Crim. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y
Gen. at I (Feb. 21, 2017), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
The Honorable David P. Weeks - Page 2 (KP-0160)
approval thru the audit process." Id. Thereafter, the treasurer would present the commissioners
court with a report of the bills paid. Id. The treasurer and auditor stated that without the proposed
order, they will ask the commissioners court for twenty-five special sessions throughout the year
to be held on Wednesdays rather than on Mondays. Id. at 2. You ask whether the proposed order
complies with the treasurer's duties under section 113.041 of the Local Government Code and the
commissioners court's duties under sections 115.021 and 115.022. Id.
The Local Government Code specifies the method to approve claims against the county
and to disburse county funds to pay the claims. Under section l 13.041(a) of the Local Government
Code, the county treasurer must disburse county funds "as required by law and as the
commissioners court may require or direct." TEX. Loe. Gov'T CODE§ 113.04l(a). The treasurer
may not disburse county money without an order of an authorized officer. Id. § 113 .041 (c). Under
the Local Government Code, the treasurer has no authority to approve claims and may not pay
claims without commissioners court approval. See Tex. Att'y Gen. Op. No. H-171 (1973) at 4-5.
Section 115.021 requires the commissioners court to "audit and settle all accounts against
the county and shall direct the payment of those accounts." TEX. Loe. Gov'T CODE§ 115.021.
Further, the commissioners court must examine county financial accounts and reports, compare
them with accompanying vouchers, and correct the accounts and reports as appropriate. Id.
§ 115.022(a). These statutes impose a duty on the commissioners court to examine and approve
or disapprove claims against the county. Id. §§ 115.001-.022; see also Navarro Cty. v. Tullos,
237 S.W. 982, 987 (Tex. Civ. App.-Dallas 1922, writ ref d). County funds may not be expended
without the commissioners court's approval. Smith v. McCoy, 533 S.W.2d 457, 459 (Tex. Civ.
App.-Dallas 1976, writ dism'd).
A commissioners court transacts a county's business as its principal governing body and is
a "governmental body" subject to the Open Meetings Act. TEX. Gov'T CODE§ 551.001(3)(B);
Comm 'rs Court v. Agan, 940 S.W.2d 77, 79 (Tex. 1997). Generally, all of its meetings to discuss
public business or take formal action must be open to the public. TEX. Gov'T CODE
§§ 551.001(4)(A), .002. Thus, a prior opinion of this office concluded that under the Open
Meetings Act, "a claim, invoice, or bill must be approved by a commissioners court at a meeting
held pursuant to the Act." Tex. Att'y Gen. Op. No. JC-0307 (2000) at 1; see also Swaim v.
Montgomery, 154 S.W.2d 695, 696-97 (Tex. Civ. App.-Amarillo 1941, writ ref d) (stating that
commissioners do not act individually; rather, "[t]hey meet as a court and transact the county
business in open session"). The commissioners court lacks the authority to "waive" its duty to
order payment of claims only in an open meeting. See id.; see also Acker v. Tex. Water Comm 'n,
790 S.W.2d 299, 300 (Tex. 1990) (requiring "exact and literal compliance with the terms" of the
Act); Tex. Att'y Gen. Op. No. GA-0412 (2006) at 2 (stating that a governmental body may issue
an order concerning meetings only if they "are consistent with the Texas Open Meetings Act and
other laws applicable to the governing body").
Thus, the pertinent issue is whether the commissioners court may approve claims before
they accrue, to be paid as the claims are presented with "appropriate documentation and
authorizations" and approved through the county audit process. Request Letter at Exhibit "A."
The proposed order does not expressly address who determines whether a particular claim satisfies
requirements to qualify for payment, implicitly leaving the decision to the treasurer or the auditor.
The Honorable David P. Weeks - Page 3 (KP-0160)
See id. Thus, such an order would not constitute the examination and approval the commissioners
court must undertake under the Local Government Code; rather, the order would delegate the
commissioners court's oversight responsibilities to the treasurer and the auditor. A commissioners
court may not delegate its powers requiring the exercise ofjudgment and discretion absent a statute
expressly authorizing it to do so. See Guerra v. Rodriguez, 239 S.W.2d 915, 920 (Tex. Civ. App.-
San Antonio 1951, no writ); see also Tex. Att'y Gen. Op. Nos. KP-0052 (2015) at 2 n.2
(determining that a commissioners court may not delegate its budget authority), JC-0370 (2001)
at 3 (determining that a "commissioners court has a nondelegable duty to review county payrolls
and to issue warrants"). 2 Accordingly, a commissioners court cannot delegate to the county
treasurer or the auditor the commissioners court's duty and authority to approve payment of county
claims and payroll. See Smith, 533 S.W.2d at 459 (commissioners court's duties to examine and
direct payment of claims are nondelegable duties); Tex. Att'y Gen. Op. Nos. JM-192 (1984) at 5
(determining that payment of salaries to county employees requires commissioner court approval);
H-977 (1977) at 6 (determining that county commissioners court cannot delegate its authority to
audit and settle claims against the county); 0-5049 (1943) at 2-3 (determining that commissioners
court may not in a standing order authorize the county auditor to pay officers and employee salaries
and utility bills). Thus, the proposed order authorizing the treasurer to pay certain types of claims
and bills prior to presenting the actual claims or bills to the commissioners court does not comply
with the commissioners court's duties under sections 115.021 and 115.022 of the Local
Government Code.
Finally, you ask whether the commissioners court "may approve payment of the claims
and bills described in the proposed order in a special session held on a day other than when the
Court usually meets for its regular session." Request Letter at 2. You advance no reason why the
commissioners court's authority to approve a claim or other disbursal is any less for a meeting
called for a day other than the commissioners court's regular meeting day. Section 81.005 of the
Local Government Code requires commissioners courts to "designate a day of the week on which
the court shall convene in a regular term each month," but the section also authorizes special
meetings. TEX. Loe. Gov'T CODE§ 81.005(a), (g). The treasurer must make a financial report,
exhibit the treasurer's books and records, and submit vouchers for audit and approval "[a]t least
once a month at a regular term of the commissioners court," implying that claims may be presented
for approval more often. Id. § 114.026. Provided it complies with any statute applicable to the
particular subject matter, a commissioners court may review and direct payment of payroll and
claims at a meeting called for a day other than the commissioners court's regular meeting day. 3
2
For counties with a population greater than 190,000, the Local Government Code authorizes county officers
to issue warrants against the salary fund of the county to pay salaries and draw checks on the county treasurer to pay
salaries. TEX. Loe. GOV'T CODE §§ 113.047, 154.043. You inform us that Walker County's population is
approximately 67 ,861. Request Letter at 1.
3
While the auditor and the treasurer assert that more commissioners court meetings are needed to meet various
payment deadlines, it may be possible to adjust the county's payroll and other payment schedules to more closely
conform to the commissioners court's regular meeting schedule.
The Honorable David P. Weeks - Page 4 (KP-0160)
SUMMARY
Under sections 113.041, 115.021, and 115.022 of the Local
Government Code, the commissioners court must approve claims,
and the treasurer and auditor do not have the authority to pay claims
without the commissioners court's approval. A commissioners
court cannot delegate to the county treasurer the commissioners
court's duty and authority to approve payment of county claims.
Provided it complies with any statute applicable to the particular
subject matter, a commissioners court may review and direct
payment of payroll and claims at a meeting called for a day other
than the commissioners court's regular meeting day.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
WILLIAM A. HILL
Assistant Attorney General, Opinion Committee