                                           GREG       A B B O T T


                                            September 2 1,2007


The Honorable Bill Moore                              Opinion No. GA-057 1
Johnson County Attorney
Guinn Justice Center                                  Re: Responsibility for selection and discontinuance
204 South Buffalo Avenue                              of financial software used by the office of the
Fourth Floor, Suite 4 10                              county auditor (RQ-0583-GA)
Cleburne, Texas 76033-5404

Dear Mr. Moore:

        You ask about the Johnson County Auditor's responsibility and authority regarding the
selection of financial software.' Your specific questions are:

                 1.    If the County Auditor decides that the financial software
                       currently being used is unsatisfactoryand creating problems and
                       issues in the performance of his duties, does the County Auditor
                       have the authority under Sections 112.001 or 84.901 of the
                       Local Government Code to choose the computer software for
                       use by the county auditor's office?

                 2.    If the financial software offered by two or more vendors meet[s]
                       the specifications as requested by the County Auditor, does the
                       County Auditor have the authority under Sections 112.001 or
                       84.901 of the Local Government Code to determine which
                       computer software to purchase assuming that there is not a
                       substantial difference in the costs of purchasing one or the
                       other?

                 3.    If the Commissioners Court votes to discontinue the use of the
                       financial software being used by the County Auditor's Office
                       and to replace that financial software with another financial
                       software, does the County Auditor have the authority under
                       Sections 112.001 or 84.901 of the Local Government Code to
                       continue usage of the current financial software over objections
                       of the Commissioners Court?

Request Letter, supra note 1, at 1.

         'See Letter from Honorable Bill Moore, Johnson County Attorney, to Honorable Greg Abbott, Attorney General
of Texas, at 1 (Apr. 19, 2007) (on file with the Opinion Committee, also available at http:/lwww.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable Bill Moore       -   Page 2          (GA-0571)



        As background, you inform us that Johnson County ("County"), with a population of less
than 190,000, has acentralized computer system. See id. This system provides a "computer network
for use by all of the elected officials' offices and county departments." Id. at 2. Recently, because
of the commissioners court's dissatisfaction with the then-current software and based on a local
committee's recommendation for new software, the County purchased a new financial software
package. See id. You tell us that, after months of using the new software, various county
departments reported significantly different evaluations. See id. While the auditor was satisfied with
the operation of the software and the purchasing agent considered it suitable despite some problems,
the personnel department and the treasurer's office found the software cumbersome and inefficient.
See id. After reviewing a report detailing the problems associated with the new software and
meeting with the vendor, the commissioners court "decided to discontinue use of the financial
software and evaluate [reverting] to the previous software." Id.

        You inform us that the commissioners court's decision to discontinue the use of the software
was made over the objection of the auditor, who suggested the matter be postponed for further study
and consideration. See id. You state that when the commissioners court changed the financial
software, the auditor filed suit against various county officials. See id. You further inform us that
the commissioners court, in an effort to avoid litigation costs, "rescinded its decision to change
software" and settled with the auditor by agreeing not to "take any action that purports to direct or
dictate what computer software is necessary for the proper discharge of the County Auditor's
Office." Id. at 3. Though the matter has been settled for the present, you inform us the issue is
"subject to repetition" and seek our "clarification as to the authority of the County Auditor to
determine computer software for use by the County Auditor's Office." Id.

        You qualify your first question by asking about "software for use by the county auditor's
office." Id, at 1. Thus we focus our consideration on the auditor's authority to direct the use of
particular software by the auditor's office without regard to any requisite use of the software by other
county offices. Section 84.901, Local Government Code, authorizes a county auditor to "purchase,
at the county's expense and in the manner provided by law, necessary ledgers, books, records, blank
forms, stationery, equipment, telephone service, and postage." TEX.LOC.GOV'TCODEANN. 8
84.90 1 (Vernon 1999). Section 112.001 of the same code authorizes a county auditor in counties
that have a population of less than 190,000 to

                 adopt and enforce regulations, not inconsistent with law or with a rule
                 adopted [by the Comptroller of Public account^],^ that the auditor
                 considers necessary for the speedy and proper collecting, checking,
                 and accounting of the revenues and other funds and fees that belong
                 to the county.

Id. § 112.001 (footnote added). Collectively, these provisions have been construed to clothe the
office of county auditor with an "impressive array of independent administrative duties and
discretionary powers." Comm 'rs Ct. ofHarris County v. Fullerton, 596 S.W.2d 572,576 (Tex. Civ.
App.-Houston [I st Dist.] 1980, writ ref d n.r.e.).


        2Section 112.003, Local Government Code, authorizes the comptroller of public accounts to "prescribe the
manner of keeping and stating the accounts of the [county] officials." TEX.LOC. GOV'TCODEANN. § 112.003(a)
(Vernon Supp. 2006).
The Honorable Bill Moore         - Page 3            (GA-0571)



        Pursuant to the authority under these two sections, a Texas court of appeals found in
Fullerton that a county auditor is authorized to provide his or her office with a computer, as well as
the equipment and services necessary for the computer, to enable the auditor to perform the statutory
auditor duties. See id. at 576-77 (construing statutory predecessors to sections 84.901 and 112.001).
In Fullerton, the court upheld the auditor's authority over the refusal of the commissioners court to
fund the computer, equipment, and services. See id, at 577. The court reasoned that when the
authority of a county auditor granted in sections 84.901 and 112.001 conflicts with the
commissioners court's authority over the county budget, the specific authority of the county auditor
prevails over the general authority of the commissioners court. See id. The court determined that
a commissioners court may review and reject an auditor's budget request only to the extent that an
item under section 84.901 or 112.001 is excessive or unreasonable in its financial impact on the
county. See id. And while the court determined that the commissioners court abused its discretion
in refusing to fund the equipment, the court did nothing to negate the commissioners court's
authority to determine whether a request is financially excessive or unreasonable. See id. at 578; see
also Guerrero v. Refugio County, 946 S.W.2d 558,567 (Tex. App.--Corpus Christi 1997, no writ)
overruled inpart on other grounds by NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 147 (Tex.
 1999) (recognizing based on Fullerton that the "County could only disapprove of the [auditor's]
purchases if they were excessive or an unreasonable demand on the county's funds").

        Thus, under Fullerton a commissioners court must approve a county auditor's request for
items necessary to the operation of the county auditor's office if the request is not financially
excessive or unreasonable. See Fullerton, 596 S.W.2d at 577 (deciding that the commissioners court
did not have authority to impose uniform computerized records system on auditor's office). But see
TEX.LOC.GOV'TCODEANN.$5 111.013, .044, ,074 (Vernon 1999) (adopted after Fullerton and
providing that an increase from one year to the next in the amount budgeted for expenses of an
auditor's office shall not exceed 5% without approval of commissioners court). To the extent you
are concerned about the auditor's choice of financial software to be used solely by the auditor's
office, we conclude that absent a financially excessive or unreasonable request, the auditor has
authority to choose the financial software for use in the auditor's office. And again, absent a
financially excessive or unreasonable request, that authority includes the discretion to choose
between vendors and to continue using a particular financial software over the objections of the
commissioners court. See Request Letter, supra note 1, at 1. At the same time, however, the
authority and discretion to determine what is financially excessive or unreasonable rests with the
commissioners court as the authority over the county budget and finances. See TEX.LOC.GOV'T
CODEANN.$5 111.008(a)-(b), .039(a)-(b) (Vernon 1999).3 The commissioners court may consider
in its determination the practical and financial ramifications of the auditor's choice of software on
other offices.




         3Seealso Randall County Comm 'rs Ct. v. Sherrod, 854 S.W.2d 9 14,927 (Tex. App.-Amarillo 1993, no writ)
("Article V, section 18 of the Texas Constitution establishes the commissioners court as the principal governing body
of the county. Under this authority, the commissioners court has the power to determine the county budget and
appropriate funds.").
The Honorable Bill Moore - Page 4            (GA-0571)



                                      S U M M A R Y

                      Absent a financially excessive or unreasonable request as
              determined by the county commissioners court, a county auditor has
              authority to choose the financial software for use in his or her office.
              Subject to the same limitation, that authority includes the discretion
              to choose between vendors and to continue using a particular
              financial software over the objections of the county commissioners
              court.




                                              ~ t t o r n u n e r aof
                                                                   l Texas


KENT C. SULLIVAN
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
