,   -

                  TEEAT&ZNEZY                        GENERAL
                                      OF    TEXAS
                                  Auarrmv. TKXASI 7B7ll


                                   September 30, 1977



        The Honorable Bob Bullock                    Opinion No.   H-1063
        Comptroller of Public Accounts
        State of Texas                               Re:  Audit authority of the
        Austin, Texas 78774                          Comptroller.
        Dear Mr. Bullock:
             You seek our opinion as to whether you possess audit
        authority under various statutes. Article 4344, V.T.C.S., pro-
        vides:
                  Among other duties the Comptroller shall:

                  .   .   .   .

                  3. Superintend the fiscal concerns of the
                  State, as the sole accounting officer
                  thereof, and manage the same in the manner
                  required by law.
        Article 1.03, Taxation-General, provides:
                  The Comptroller shall have power at any
                  time to examine and check up all and any
                  expenditures of money appropriated for
                  any of the state institutions or for any
                  other purpose or for improvements made
                  by the State on State property or money
                  received and disbursed by any board autho-
                  rized by law to receive and disburse any
                  State money. The Comptroller shall also
                  have power and authority and it is hereby
                  made his duty, to fully investigate any
                  State institution when so directed by the
                  Governor or required by information coming
                  to his own knowledge. He shall investi-
                  gate the manner of conducting the same and
                  the policy pursued by those in charge
                  thereof, and the conduct or efficiency of
                  any person employed therein by the State.
                  He shall examine into and report upon the




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The Honorable Bob Bullock    - Page 2   (H-1063)


         character and manner as well as the amount
         of expenditures thereof, and investigate
         and ascertain all sums of money due the
         State from any source whatever, the ascer-
         tainment and collection of which does not
         devolve upon other officers of this State
         under existing law; and he shall report all
         such facts to the Governor. When the Comp-
         troller, acting under the direction'of the
         Governor, calls on any person connected
         with the public service to inspect his
         accounts, records or books, said person
         so called upon shall submit to said agent
         all books, records and accounts so called
         for without delay.
     In addition you call our attention to the following pro-
vision contained in both the 1975 and 1977 appropriations acts.
           AUDITS. None of the appropriations herein
         made shall be used to employ any firm or per-
         son to audit the books of any department,
         board, commission, institution or State agency,
         this being the duty of the State Auditor. . . .
          .   .   .   .

            Notwithstanding other provisions of this
          Act, any state agency providing grants or
          operating funds for governmental programs to
          local governmental units, private corporations,
          or other organizations other than a state agency
          or a department, may require, as a condition to
          granting or providing such funds, that the re-
          ceiving entity have a yearly independent audit
          performed and transmitted to the state agency.
          If sufficient personnel are available, the
          state agency may have its internal audit staff
          make a yearly inspection visit to the local
          entity.
General Appropriations Act, Acts 1975, 64th Leg., ch. 743, at
2860 - 2861. General Appropriations Act, 65th Leg., art. V,
s 30.
     In essence, you inquire whether these provisions authorize
the Comptroller to exercise auditing authority over State agencies,
and if so, how certain practical problems with respect to such
audit authority should be resolved. We note that you inquire



                            p. 4561
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     ,




     The Honorable Bob Bullock     - Page 3    (H-1063)


     about the kind of investigation the Comptroller may make on his
     own motion, and not an investigation made at the Governor's
     request. Consequently, we do not address the Comptroller's
     authority when acting on the Governor's command.

          Although article 1.03 has been modified on various occa-
     sions, the basic language of the statute was enacted in 1899.
     Acts 1899, 26th Leg., ch. 23, at 26. The office of State Auditor
     was created 30 years later and was vested with broad auditing
     powers, Acts 1929, 41st Leg., 1st called session, ch. 91, at
     222. --
           See also Acts 1943, 48th~Leg., ch. 293, at 429.
          We believe the Legislature has manifested its intent
     over the years that the function of auditing other agencies
     belongs to the State Auditor. For example, the Legislature
     which created the Office of State Auditor did not interpret
     article 1.03 as providing the Comptroller with broad power to
     audit other agencies. The emergency clause of the 1929 Act
     establishing the Auditor's office and duties provided:
               The fact that there is now no State Auditor
               and no official designated to audit and
               investigate the custodians of public funds
               and the various departments of the State
               Government create an emergency. . . .
     Acts 1929, 41st Leg., 1st called session, ch. 91, at 225.
     (Emphasis added). Additionally the appropriations act rider
     quoted above clearly indicates the legislative understanding
     that the basic audit authority is vested in the State Auditor.
     The interpretation of a statute by a subsequent Legislature is
     not controlling, but it is entitled to great weight. Texas-
     Louisiana Power Co. v. City of Farmersville, 67 S.W.Zd 235
     (Tex. Comm'n. App. 1933, jdgmt adopted); Neff v. Elgin, 270
     S.W. 873 (Tex. Civ. App. -- San Antonio 1925, writ ref'd).
          In 1948, the Attorney General addressed the effect the
     creation of the State Auditor's Office had on other state
     officers who had statutory authority to conduct audits. The
     statute involved in that opinion was article 4400 which autho-
     rized the Attorney General to make a monthly inspection of the
     accounts of the Comptroller and Treasurer. Letter Opinion
     R-1404 (1948) at 6 concluded:
                 It is apparent . . .   that the duties
               imposed upon the State   Auditor and Ef-
               ficiency Expert by the   Act of 1929 and
               upon the State Auditor   by the Act of




                                 p. 4562
The Honorable Bob Bullock            - Page 4   (H-1063)


             1943 included the duties imposed upon
             the Attorney General by the first sentence
             in Article 4400. It is our opinion the
             effect of these Acts was to repeal the
             above-mentioned sentence by implication.

     Accordingly, we believe that the 1929 and 1943 legislation
removed any independent authority the Comptroller might have
previously had to initiate investigations and examinations of
the books and records of state agencies when those activities
would duplicate or parallel the duties of the State Auditor.
As far as we can determine, this interpretation has not been
questioned by prior Comptrollers. We believe this determina-
tion is reflected in the rider which prohibits agencies from
expending state funds for activities which are the responsibility
of the Auditor. See Attorney General Opinion M-1199 (1972) where
the same rider waxeld   to be valid.
                          SUMMARY
             The Comptroller of Public Accounts is not
             authorized to conduct audits of other state
             agencies when such audits would parallel
             or duplicate the duties of the State Auditor.
                                     Very truly yours,




APPROVED:


Y3sLLey
DAVID   M.   KENDALL, First   SSiStant




C. ROBERT HEATH, Chairman
Opinion Committee




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