                THE   ATTORNEY        GENERAL
                         OF   TEXAS



                          July 18, 1990



Honorable James Warren Smith, Jr.     Opinion No. JM-1186
Frio County Attorney
P. 0. BOX V                           Re: Authority of a county
Pearsall, Texas 78061-1138            auditor to require    con-
                                      stables   to   submit
                                      monthly report  (RQ-1878;

Dear Mr.   'Smith:

     YOU ask the following questions   relative to    the
authority of the county auditor to require constables  to
submit monthly reports.

           (1) May the Frio County Auditor require the
           four Frio County Constables    to provide   a
           monthly report . . . listing the civil pro-
           cess instruments and criminal warrants   that
           they receive and the date that they served
           them even though they do not collect fees or
           moneys when serving these instruments?

           (2) Will failure     on the    part of    the
           constables to fill out and turn in such
           reports  authorize the County Auditor      to
           withhold payment, to them of their monthly
           mileage which has been approved   and set by
           Frio County Commissioners Court.

     You advise that the county auditor has required       the
county's four constables to report in writing      all civil
process and criminal warrants    they serve.   You enclose   a
monthly report form prepared by the auditor.        The form
provides  spaces for the constable to enter          (1) date,
(2) style and notice of   instrument, (3) date received,   and
(4) date served. The form provides for the instrument to be
sworn and subscribed    by the constable before     a notary
public.

     You state that the constables use their own vehicles in
discharging  the duties of their office.       They   submit
separate monthly mileage   reports logging the miles they




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Honorable James Warren Smith, Jr. - Page 2   (JM-1186)




travel   in  the    performance    of   their  duties.   The
commissioners court has fixed a sum for each mile traveled
by a constable   in the discharge of official duties.    YOU
relate that the constables     feel that they should not be
required to prepare an additional report relating to the
service of each civil and criminal process      they receive
since they do not collect any money or fee in the course of
serving such instruments.1

     You advise that the auditor's position is that she has
the authority to require such a report under section 115.001
of the Local Government  Code. Section 115.001 provides   in
pertinent part:

        The county auditor shall have     continual
        access to and shall examine and investigate
        the correctness of:

           (1) the books, accounts, reports, vouch-
        ers, and other records of any officer.

     Section 152.011 of the Local Government Code authorizes
the commissioners court to set the amount of compensation
and office and travel expenses for county and precinct
officials and employees paid wholly      from county   funds.
Attorney General Opinion JM-879 (1988) concluded that the
county auditor could not require documentation from members
of the commissioners court who receive fixed monthly   travel
allowances.   However, the opinion noted that the sum must be
fixed by the commissioners court at a figure that reasonably
relates to expenses actually incurred in the commissioners'
discharge of county business. Unlike      the fixed monthly
travel allowance   in Attorney  General Opinion JM-879,   the
commissioners court in your county has provided for a sum
per mile   for the constables in the discharge      of their
official duties.



     1. Section    112.001 of the Local Government       Code
authorizes the county auditor in counties with less than
190,000 population to adopt and enforce regulations that the
auditor  considers   necessary  for the speedy and proper
collecting, checking, and accounting of funds that belong to
the county.    Section   112.006 provides  that the county
auditor has oversight of the records of an officer who     is
required by law to receive or collect money that is intended
for the use of the county or that belongs to the county.




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 Honorable James Warren Smith, Jr. - Page 3   (JM-1186)




      Section 113.064 of the Local Government Code concerns
 approval of claims by the county auditor. Section  113.064
 provides:

             (a) In a county that has the office of
         county auditor, each claim, bill, and account
         against the     county   must be   filed    '
         sufficient time for the auditor to exami::
         and approve   it before the meeting   of the
         commissioners   court.   Aclaim.
         account mav not be allowed or naid until   it
         &4    been examined    and annroved bv    the
         auditor.

             (b) The auditor shall stamp each approved
         claim, bill, or ,account.     If the auditor
         considers   it necessary, the auditor      mav
         reauire
             . . that   a clqgm. bill.  or  account  be
          errfled bv an affidavit      indicatina   1ts
         correctness.
             (c) The auditor may administer oaths for
          the purposes  of this section.     (Emphasis
          added.)

       Section 113.065 of the Local Government Code provides
  that the "county auditor may not audit or approve a claim
  unless the claim was incurred as provided by law.n        The
. county auditor has .the responsibility,  before approving   a
  claim against the county, to determine whether it strictly
  complies with county finances.   Smith    McC y  533 S.W.2d
  457 (Tex. Civ. App. - Dallas 1976, writvdism'z):

       The matter    of   whether the auditor    *   under
  ministerial duty to approve salary payments o&ed     by thz
  commissioners   court was considered by Attorney     General
  Opinion JM-1099 (1989). It was noted that the most recent
  group of opinions of this office has concluded that where a
  person's right to a salary is established as a matter      of
  law, the auditor is under a ministerial duty to approve   the
  claim. m     Attorney General Opinion JM-986 (1988).    Under
  your scenario the auditor is dependent on the correctness of
  an unsubstantiated claim for miles traveled.

       Attorney General Opinion JM-1099 at 6 stated that while
  "it is arguable that the county auditor has discretion    to
  approve or disapprove  salary payments pursuant to section
  113.064 of the Local Government Code, we believe the auditor
  nevertheless may require county officials   to supply basic




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Honorable James Warren Smith, Jr. - Page 4 (JM-1186)




information  necessary  to   the accomplishment   of   other
duties."  However, we are not here addressing a question  of
salary payments.

     The auditor has the responsibility     for establishing
financial procedures   and internal accounting controls    for
the county.   Attorney   General Opinion W-579    (1970).   We
believe that a county auditor may require a county officer
or employee to substantiate a claim with documentation    that
the claimed mileage for which he is seeking payment was     in
the conduct of the official business.       However,   as was
pointed out in Attorney General Opinion JM-1099, it is not
generally within the province of the auditor to ensure that
county officers and employees are complying with the duties
of their office or employment   imposed on them by law where
such efforts are not necessary to the accomplishment of the
auditor's statutory duties.

     Under the scenario you have submitted, the auditor  has
instituted a reporting requirement for the constables rather
than examining   the correctness   of an officer's    or an
employee's records under section 115.001. We do not believe
that section  115.001 authorizes  the auditor to require   a
reporting system solely for the purpose      of determining
whether an officer or employee is discharging the duties  of
his office.

     While the form in question that you have submitted    may
bear some relevance    to mileage traveled  in performance  of
official duties,    in our opinion it falls far short of
substantiating a claim. A report that only reflects        the
date process was received,    the identity of the instrument,
and the date served reveals nothing more than the fact that
the instrument was served and the lapse of time between
receipt and service. While such information may be relevant
to the determination of the validity of a claim for mileage
reimbursement, it does not, standing alone, supply the
auditor with enough    information to approve the claim.    At
most, the form in question only shows that the constable    is
performing   duties   imposed on his office by law.
heretofore noted, it is not a proper function of the count;
auditor to ensure that a county officer or employee         is
performing the duties of his office or employment unless the
inquiry is in furtherance of a discrete statutory duty of
the auditor. The form you have supplied does not accomplish
this. A different conclusion might be indicated if the form
prescribed by the auditor required additional      information
reflecting the place of service and the mileage traveled     in
serving each instrument.




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    Honorable James Warren Smith, Jr. - Page 5     (JM-1186)
.




         We find it unnecessary  to answer your second     question
    in light of our disposition of the first question.

                           SUMMARY
               The county auditor may not require county
            constables  to provide    a monthly     report
            listing only the identity of civil         and
            criminal instruments they  receive, the   date
            of their receipt by the constables, and the
            date they are served.




                                       Ldzb
                                          JIM     MATTOX
                                          Attorney General of Texas

    MARYXRLLRR
    First Assistant Attorney General

    Lou MCCREARY
    Executive Assistant Attorney General

    JUDGE ZOLLIE STEAXUY
    Special Assistant Attorney General

    RENEA HICKS
    Special Assistant Attorney General

    RICK GILPIN
    Chairman, Opinion Committee

    Prepared by Tom G. Davis
    Assistant Attorney General




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