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DAN MORALES
 ATTORNEYGENERAL                             May 16.1997

   The Honorable Kenneth Armbrister             Opinion No. DIM-440
   Chair, Committee on State At&s
   Texas State Senate                           Re:     Whether the county treasurer or the county
   P.O. Box 12068                               auditor is responsible for various duties under chapters
   Austin, Texas 7871 l-2068                    112 and 113 of the Local Govemment Code, and
                                                related questions (RQ-634)
   The Honorable Ron Lewis
   Ch+r, Committee on County AtTairs
   Texas House of Representatives
   P.O. Box 2910
   Austin, Texas 78768-2910

   The Honorable Ramiro V. Martinez
   Webb County Auditor
   P.O. Box 3103
   Laredo, Texas 78044

   Dear Gentlemen:

           We have received requests for advice about certain duties of county treasurers and county
   auditors under chapters 112 and 113 of the Local Government Code, from Senator Armbrister’s
   predecessor as chair of the Senate Committee on State AfTairs, from Representative Lewis
   predecessor as chair ofthe House Committee on County Aflbirs, and t?om Mr. Martinez, the county
   auditor fbr Webb County. Because these queries raise sin&r issues and require us to cover similar
   ground, we address them together. The chair of the Senate Committee on State AtFairs asks whether
   the county tmamrerorthe.countyauditor%xeives        and pm-audits claims, and prepares and processes
   cash disbursements in counties with a population less than 190,000.” The chair of the House
   ~Committ~ on County Aiibirs asks how counties may establish a “6rst in time, tirst in line” claim
   register system for vendors, whereby claimants may secure their priority in order of payment by
   presentation of a claim to the proper officer prior to approval by the commissioners court. Fiy,
   Mr. Martinez asks whether the county auditor or the county treasurer should prepare and process
   payments for accounts payable.’




           ‘The officeof county-hasbeenabolisbcdinsopnc~~         SeeTex.Ccmt.art.XVI.Q44.    Notall
   ccmiesarelrqutedlohavcacolmlyauditor. seeLmaIGov’tcodeg84.002.  nisopiniollispcrtinontcmlytothosc
                                       mdaoMmtyaoditor.
   couotiestllathavebothecolmtytressllrer
The Honorable Kenneth Armbrister - Page 2            (DM-4 4 0 )
The Honorable Ron Lewis
The Honorable Ramiro V. Martinez



        We begin by addms!& questions &m the chair of the House Committee on County A%irs
about a “first in time, 6rst in line” claim register system for vendors. He refers to section 113.061
of the Local Government Code, which requires the county treasurer to register claims in the order
present4 and the0 asks the fbllowing questions with respect to the county auditor, the county clerk,
the county treasurer, or “the successor to the duties of the county treasurer”:

            1. The records of which. _ . county officers create and establish an “official
               order of payment” regiskr of claims or accounts presented against a
               county...?

           2. So that a claimant claiming against a countymay establish, insure and
              protect an appropriate “in line” position for payment of his/her claim
              withina~intime,firstinline”orderofpaymentandwheresuchclaim
              is subsequently approved for settlement, with which . . . county officers
              orcountyg~              bodies should the claimant present his/her claim or
              account for claim registration. . . ?

       We assume that he inquires only about claims which are subject to section 113.061 in
subchapter D of chapter 113 of the Local Govermnent Code. Section 113.061 provides in part:

                The county treasurer shall maintain a record in which the treasurex shall
           registerea&claimagainstthecomty.        Thetreasurershallregist~theclaims
           intheorderinwhichtheyarepresented.         Ifmorethanone&imispresented
           at the same time, the treasurer shall register them in the order of their date.’

Claims are to be registered in one of three categories: scrip issued to pay or feed jurors; scrip issued
under a road law or for work done on roads and bridges; or general county indebtedness? Section
113.061 provides that a claim must be registered pursuant to this provision before it is paid.’ Zn
addition see&on 113.061 expressly states that the county treasurerisrequkedto”payea&claimin
each class in the order in which it is registered.“5 Fm,  section 113.061 requires that the treasurer’s
registe entry for each claim must state the class of the claim, the name of the payee; the amount of




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The Honorable Kenneth hbrister   - Paae 3            (DM-440)
The Honorable Ron Lewis
The Honorable Ramiro V. Martinez



the claim, the date of the claim, the date of the xegistratio~ the claim registration nuahr,      the
authority under which the claim was issued, and the service for which the claim was issued.’

        Subchapter D of chapter 113 of the Local Govemrneut Code requires that the county auditor
and the commissioners court approve claims before they are paid,’ but it does not give the county
auditor or the commissioners court any role in the registration of claims or in the actual ministerial
act of paying claims. We have received numerous brie& on the timing of claims reghation, that is,
~claimsareregisteredbyttaecountytreasurerbeforeorafterthqrhavebeenapprovedbythe
cotmty auditor and the county commissioners court.

        In Attorney General Opinion H-171, this office considered whether a claim should be
                                                                                 * ‘oners court.
presented to the county treasurer before it has been approved by the county comuuss~
That opinion concluded that

           theproperpr~tobefo~owedwith~ctaimsagainstthecounty..                     . is
           for any claim, bii or account for any expense or indebtedness of the county
           to be submitted to the Commissioners Court for its approval. If it is
           approvedaawafiantdbedrawnbythecorurtyderkand~b~~tothe
           County Treasurer for his endorsement . . . . Itisatthattimethatclaims
           sbouldbeplacedupontheregistermaintainedbythecoUntyTreasurerinthe
           order of their date.*

        As this quote demoustrates, the “claim” presented v the treasurer for registhon            is
represented by a county warraut issued by the commissioners court or other officer authorized to
issuetkwarrant9 Someprmrisionsofchapter113usethetenn”claim”torefertoa                w-arrant issued
by the commissioners court. For example, sections 113.062 and 113.063 ,state pmcehres to be
followed when an individual tenders “a claim against the county” in payment of a he, judgment,
taxes, or other indebtedness owed the county. lo The officer who receives the claim in payment of a
debt owing the county shall 6le a report listing “the party in whose favor the claim was issue&




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The Honorable Ron Lewis
The Honorable Ramiro V. Martinez



hmguage that applies to a warrant.” The court in Howard v. Henderson Cotmy, 116 S.W.2d 479,
482 (Tex. Civ. App.-Dallas, 1938, writ refd), de&i       the process of paying an individual as
follows:

                [A]t the end of each month, Mr. Howard, having presented to the
            wmmissioned court a daim against Henderson County for services rendered
            ~yMr.Howard]askeeperofthepoorfamr,...andthecourthaving
            regularly audited and, alter deducting items of discount, allowed such claim
            and directed payment by warrant; and the warrants having been issud
            accepted, and registered with the county treasurer by Mr. Howard. _ . .I2

         -tie    wsrrant was registered with the treasurer after the commissioners court approved
the dqim and diiected payment by warrant. We a&m the conclusion in Attorney General Opinion
H-171. We tInther note that ifdaims were registered prior to their submission to the county auditor
and county commissioners court for approval, the payment of approved claims could be delayed
i&finitely pending the approval of disputed daims.

        A brief asserts that Attorney General Opinion H-171 is incorrect in part because it would
requiretl=county-            to regkter a claim under section 113.061 and to perform his or her duties
under section 113.942 simultaneously. Section 113.042 provides that “[o]n ~thepresentation of a
warmt, check, voucher, or order drawn by a proper authority, and ifthere are sutRcient tbnds for
paymendondepositintheaccountagainstwhichtheinstrumentisdrawo,thecountytreasurershall
endorse on the face of the instrument the order to pay the named payee and shah charge the amount
inthetreasurers~~tothefiundon~cbitisdrawn”Thebriefarguesthatthelegislaauenever
envisioned that the county treasurer should receive simultaneously claims for registmtion and
warrants drawn for their payment from either the commissioners court or the county auditor.

        A legi&tive purpose is served by registeting claims with the treasurer after approval by the
commissioners court and before endorsement. Ifthere are suflicient funds on deposit to pay the
warmnt, endorsement will occur soon after registration of the claim, but if funds are not sutEcient,
the registration number on the warrant will establish priority for payment in the future when the
county aqukes finds. For example, in Hmurd v. Henderson Gnu@, cited above, the court noted
thatregiste#dwanants were not paid until four or five years a&r registration because the county’s
general knd was in debt.” Provided that the county treasurer pays claims in the order registered, it
is possible to conform to the mandate of both provisions. The construction of section 113.961 in
Attorney General Opinion H-171 is not inconsistent with section 113.942.



        %ocd cbv’t co& 0 113.063(a)(l) (emphasisadded).

         %iy”   C%k? & Courtsv. Cmwfid. 161 S.W.2d 148 pat Civ. App.-Tz7..;                   (referring
to’[t]hc~        of&did cumkymts,”    thuadc6uiiiogaa“wmTaat”doamMt

        %nvard, 116 S.W.2d at482.




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The Honorable Ron Lewis
The Honorable Ramiro V. Martmez



        ForthefMegoiireasons,wewndudethatunderswtion              113.061 oftheLwalGovernment
Code, claims are registered by the county treasurer a&r they have been approved by the county
auditor and the county wmmissioners court. Thus, section 113.061 does not create a “tlrst in time,
first in line” order of payment, whereby claimants may secure. priority in payment before the
commissioners court approves the claim, nor are we aware of any other statute that does so. We
note, however, that the order in which a wunty commissioners wurt approves claims will have a
substantial effect upon the order in which the issued warrantsareregisteredbythetwasmer.

       We turn to the questions submitted by the Chsir of the Senate Committee on State Aflbirs and
by the County Auditor for Webb County. Both requesters wish to know which county official
prepares and processes disbursements of wunty fbnds.

       In Commissioners Court of Titus Gnmty v. Agan, 940 S.W.2d 77 (Tex. 1997) the Texas
Supreme Court answered a closely related question. The issue in Agzm was whethex the
commissioners court could divest the county treasurer of payroll preparation responsibilities and
tmnsfer these responsibiities to the county auditor.

       The court began its legal analysis with article XVI, section 44(a) of the Texas Constitution,
which provides in part:

               Bxwpt as otherwise provided by this section, the L&datum shall
           prescrii the duties and provide for the de&on by the qualiikl voters of each
           wuntyinthisState,ofaCountyTreasmer          andaCountySurveyor....

        Thus, the wnstitution establishes the office of wunty @asurer, but gives the legislaaue the
respor&iility to pmsaibe the tmasur& duties. The court reviewed provisions found in chapter 113
of the Local Government Code that gave the treasurer e-xchaive authority over receiving and
disbursing tlmds from the wunty treasmy. I4 It also found that c&sin other statues applied to the
county treasurer without granting that office the exchtsive power to perform specific limcti0ns.15
Neither the wnstimtion nor the legislature had assigned payroll preparation to any wunty official.r6




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The Honorable Ron Lewis
The Honorable Ramiro V. Martinez



-nloughtheLegislaauehas-                 severalfimctionsthatcannotbetalcenawaytbomtheCounty
Treasurer, preparing the payrol: is not one of them.“” The wurt tiuther stated that

             [t&e budgetary decision to transfer the payroU preparation responsibiities to
             the County Auditor’s office is a legi&tive kwtion for which the
             Commissioners Court receives broad discretion. . . . Because the Legislature
             hasnot~~payrOnpreparationresponsibilities~ecOmmissionerscourt
             acting in its legklative capacity may delegate the responsibiities to an
             appropriate county officiaL1*

        The county auditor was an.appropriate official to whom payroll preparation responsibilities
could be delegated, because the auditor has statutory authority to perform the clericat timctions
associated with payroll preparation. ” However, the wmmissioners wurt wuld not delegate to the
auditor the payroll preparation responsiiities that involved disbursing county timds, because the
kgi&mrehaddekgatedthesetothewuntytrewuer.            In the Agan case, the disbursement duties that
had to be Performed by the treasurer included the following: making federal income k&“ deposits
with the w     making child support deposits with the appropriate offices; depositing payroll funds;
paying insurance premiums; and wiring insurance payments to third party admh&mt~rs.~’ The
remaining duties wuld properly be assigned to the county auditor because they did not involve
disbursement, payment, or application of county fundsp The duties that could be assigned to the
auditor’s office included the foilowing: wllecting timesheets from wunty departments; entering
time&et data into the. county wmputex to generate payroll deductions for fxkral income tax, FICA,
Medicare. insurance, retirement, and child support payment; preparing insurance cl-       answering
questions about insuranw claims or payments; preparing and transmitting W-2’s and 1099’s; and
preparing payroll checksD A&r preparing the payroll checks, the clerk in the auditor’s office
delivered the payroU checks with the timesheets to the county treasurer for veritication, signatme,
and disbursement. The court concluded as follows:

                TheLeg&urehasassignedtheCountyTreasurercertrdnwrefbwtions.
             The Commissioners Court cannot allocate the County Treasurer’s core




       “Id

       ‘?d (citing Local G&t Code $0 152.05 1 (couatypayroll&LXX meanscountymditcswithinhis subchapter),
155002(a)(z) (requiring
                      pqdl d.Awtiioosto be submitted to camty axlitor)).

       =%ded’ mccmetaxisabbrcviatcd”FIT”inAgmopinioa

       =‘Agon, 940 S.W.zd at 82.

       =Id

       %




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The~HonorableKenneth Armbrister - Page 7             (DM-440~)
The Honorable Ron Lewis
The Honorable Kamiro V. Martinez



           timctions to any other officer, including the County Auditor. If the
           Legislature does not specifically assign a duty to the County Treasurer, that
           dutyisnotoneoftheCountyTmasurer        *s core limctions. The Chnmissioners
           Court may, witbin its discretion. assign those non-core functions to other
           wunty officials the Legislature authorizes to perform those ti~&ons.~

   In concluding that the wmmissioners wurt could assign payroU preparation fbnctions to the
county auditor, the Texas Supreme Court expressly disagreed with the conclusions of Attorney
Gweral Opiions JM-911 and JM-986 (1988). Accordingly, these opinions are ~overruled.

    ~TheSupreme Court’s decision in Agan establishes a rule for answering the questions before us.
Mr. Martinex asks who should prepare and process payments for accounts payable.= The Chair of
the State Affairs Committee asks whether the wunty auditor or the county treasurer “receives and
prsaudits claims, and prepares and processes cash disbursements in wunties with a population less
than 190,ooo.”

    Your questions enwmpass all of the dkbmsements of county tbnds that may be made for any
legal purpose. Since your question is general, our answer must be general also, and will not reach
statutorily~ted   exceptions applicable to specific tmnmctions. We believe, however, that the
general guidance provided by the Agm case. will enable wunties to resolve questions about
disbursement procedures for themselves.

    The rule established by the Agan case for payroU preparation also applies to the preparation.and
prows&g of claims for other wunty expenditures. Ifthe legislatme has not assigned a 5nction to
a specitic officer, the wmmissioners court acting in its legislative capacity may delegate that
responsibii to M appmpriate county official. The legislature has delegated to the wunty treasurer
theauthorityto~courrty~~andto~andapplythemoneyasrequiredbylawandasthe
commissioners court may require or direct.“26 The requesters inquire about procedures that are
preliminary to the disbursement of 5x&-the receipt and pre-audit of claims, preparing and
processing payments for accounts payable.n We believe that the legklatme has delegated the pre-
audit of claims to the county auditor, but we tind no statute dekgating the other 5nctions to a county
officer. Except for the pre-audit of claims, the wmnnssr   ’ ‘otters court may delegate the ministerial




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The Honorable Ron Lewis
The Honorable Ramiro V. Martinez



duties involved in the other procedures to a county official that has statutory authority to perfbrm
such clerical functions.

   The Standard l&u-&al Management System for Texas Counties (“SPMSTC”), an accounting
manual for counties prepared by the Comptroller of Public Accounts, deiines “pm-audit” as foUows
“A pm-audit wnsists of a routine examir4on of each invoice to verify its validity and awuracy.“m

     Inacountythathasacountyauditor.“eachclaim,bill,andaccountagainstthew~mustbe
filed in s&icient time for the auditor to examine and approve it before the meeting of the
commissioners wutt.“~ The auditor may require that a clabq bii or account be veritkd by an
aflidavit indicating its wrrectness and may administer oaths in wnnection with approving claims.”
The wmmissioners court may not assign to another officer the pm-audit duties that these provisions
give the county auditor.

    We have found no statutes that delegate to a specifk officer the receipt of claims, and the
preparation and processing of payments for accounts payable. The wmmissioners wurt has broad
discretion in the exercise of its legislative timction to delegate responsibiities to an appropriate
county officiaL3’Both the county treasurer and the county auditor have statutory authority to carry
out the clerical fimctions leading up to the disbmxment of county tbnds. The county tmasumr, in
addition to being responsible for the disbursement of wunty funds, may issue a duplicate instrument
ifan original check or other order drawn on the wunty treasury is lost or destroyed.= The uwunty
auditor shall maintam an account for each wunty, district, or state officer authorized or rewired by
law to receive or collect money . _ . intended .for the use of the county,” and in the account, “the
auditor shall detail the items of indebtedness charged against that officer and the manner of
discha@g the indebtedness.“” In addition, the auditor “shall see to the strict enforcement of the




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TheHonorableKemmthArmbrister     - Page 9        @M-440)
The Honorable Ron Lewis
The Honorable Kamiro V. Martinez



law goveming wunty tinances.“y In a wunty with a population of fewer than 190.~ people, the
auditor may adopt and enforce regulations not inwnsistent with law, while in a wunty of more thsn
190,000 people, the auditor %sU presmii the accounting system for the countyIn not inwmjstent
with the la~.“‘~ Section 113.042 of the Locsl Government Code indicates that individual wunty
offiwrs have authority to draw warrants and checks.~ Thus, the wmmissions court may delegate
to a county officer the responsiiity for preparing claims for his or her own department. The
wmmissionem wurt’s decision as to the delegation of the ministerial tasks involved in preparing
claims is a discretionq matter, subject to review for abuse of discretion.n

    The Chair of the State Airs Committee states that procedures for performing disbursement
related duties are set out in the wmptrolkr’s Standard Facial  Msnagement System for Texas
Counties (“SFMSTC”), but points out that the manual does not state which wunty official is the
proper official to perform these duties”

    The acwtdng systems in this manual are not intended as uniform procedures to be followed by
Texas wunties.” Counties must comply with the minimum accounting and tinanciai management
standa& stated in the SFWSTC, but within these general guidelines, all wunties are free to design
theirovmsystems.” ThemodelsystemsarepresentedintheSFMSTC”asa~~tothosewuaties
which wish to improve their fktancial systems but are uncertain as to how to go about making



       ?d   5 ll2.006@).
TheHonorableKenneth Armbrister - Page 10              (DM-440)
The Honorable Ron Lewis
The Honorable Ramiro V. Martinez



w.nc’       County offim might use relevant procedures to cany out duties delegated to them by
statutea or by the wmmissioners wmt, and the commissioners court might wish to consider the
procedures iu exercking tiscal powexs, including its delegation of ministerial duties to an appropriate
county officer.

                                        SUMMARY

               Under section 113.061 of the Local Govemment Code, claims are
           registered by the county treasurex afkr they have been approved by the
           county auditor and the wunti commissioners court. Section 113.061 does
           not create a “iirst in time, 61% in line” order of payment.

                In Commissioners Court of fiius County v. Agan, 940 S.W.2d 77, 82
           (Tex. 19!X’),the Texas Supreme Court concluded that the county treasurer’s
           wre functions wnsisted of those duties assigned to the treasurer by the
           legkhue and that the wmmissioners wurt could not allocate the treasurer’s
           core. ti~ons    to any other officer, including the county auditor. Duties not
           specificaUyassignedtothewuntytxamrer           by the leg&ture are not among
           &county treatmr’s core fimctions. The wmmissionexs ixtnt may, within
           its discretion, delegate “non-core” ministerial duties to a wuuty @icial that
           has statutory authority to perform these. clerical functions. Since the
           legislature had delegated payroll preparation respousiiities that involved
           disbursing county funds to the county treasurer, the disbursement
           reaponsibiiee could not be delegated to another officer. The wmmissioners
           court could delegate other mhisthl ihctions involved in payroll preparation
           to a county 05&l other than the treasurer.

               The rule established by the Agun case for payroU preparation also applies
           to the prepamtion and prowsSmg of claims for other county expenditures. If
           the legislature has not assigned a knction to a specific officer, the wmxnis-
           sioners court acting in its legislative capacity may delegate that responsiiity
           to an appropriate wunty official.




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TheHonorableKeunethArmbrister    - Page-11     (DM-440)
The Honorable Ron Lewis
The Honorable Ramiro V. Martiiez



              The Texas Supreme Court expressly disagreed with the conclusions of
          Attorney General Opiions TM-911 and JM-986 (1988). Accordingly, these
          opinions are overmled.




                                          DAN MORALES
                                          Attorney General of Texas

JORGE VEGA
Fti As&ant Attorney General

SARAH J. SHIRUY
Chair, Opiion Gmmittee

Prepared by Susan L. Garrison
Adstant Attorney General




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