 .    ,




                               The Attorney               General           of Texas

JIM MAlTOX                                          .k1gust    13,   1984
Attorney General



Suprm Ceurl Bulldlnp          Honorable Patrick. If. Simmons                  Oplnlon   No.   Jn-192
P. 0. Box 12548               District-County  Attorney
AUSlirl,-I%. 76711-2543       Limestone county                                Ile:  Whether salary  payments of
51214762501                   P. 0. Box 146                                   county employees mmt be approved
wex 91(y87~1307
                              Groesbeck, Texas     76642                      monthly by a c&ssioners    court
l.IecOpler 5121475.0255

                              Dear Mr. Stins:
714 Jackeon.Suite 700
Dallas. lx. 75202.4508               You have asked whether payment of salaries         to county officials
2l4n42ao44
                              require   monthly rlpproval either     by the comPliseiooers court or the
                              county auditor.     Although you specifically     inquire as to the effect of
4524AIberIa Ave., Sulle 150   article   1660. V.!!. C.S., other relevant    statutes   must be considered In
El Paso. TX. -2793            resolving   this qclc:stion. We conclude that each county warrant paid to
01-                           an official     or InPployee of the county requires        cotissioners   court
                              approval.   ~Tylfr ‘I. Shelby County, 47 F.2d 103 (5th Cir. 1931).          The
10011exaa.Suite 700           county auditor s rsrlor approval is not required.        however.
Nc.uetcn.TX. 77w2-3111
71Y223a56                           A comlssiaoers        court  is required      to “audit    and settle      all
                              accounts against the county and direct         their   payment.”    V.T.C.S.    art.
                              2351(10).    All   ptlyments must comply with the county’s            budget with
SO5Bmadray. &It. 312
                              iegard to those or.laries which have been approvid for county            officials
L&bock. TX. 7940+34To
Kef747.5232                   and ,amployees.      1r.T.C.S. art.   689a-11;    art.   166611. The funds are
                              actually :disbursc!cl by the county treasurer        under the direction     of the
                              comifmioners     can’t.    Article  1709s. V.T.C.S.;    generally   requires that
43W N. Tenth, Buile B         all  county money be deposited        with the county      treasurer    or in the
McAllm, lx. 7s501-lw5
5lmS24547
                              county depository     and that

                                            [n]o m~leys shall     be expended or withdrawu from
200 MaIn Plaza,Sul1e400                     the cmnty    treasury   except by checks or warrants
Ssn Antonlc. lY.. 7S20&2297
                                            drawn OII the county treasury   . . . .
512l2254191

                               V.T.C.S.   art. 17OIla. 14.     It Is the duty of the county treasurer,        upon
 An Equal oppoftunlcy/         the presentation      of a warrant       drawn by the proper        authority.   to
 AfflmmtlveActIon Emplw~       endorse said wsrrknt for the benefit            of the named payee if there are
                               sufficient    funds znallable.       Id. W(d).     Thus, the proper authority in
                               the payment of       ,slaries     is-he-    commissioners    court,   whose order
                               directing   paynenl: , i.e.   the, warrant.    is attested  by the county clerk.
                              -Id. 14(e).

                                       Although   the   county auditor has broad authority  to “see to the
                                                                                         -.       ..
                              strict      lnfo r c em4 nt or  cne law governing county finances.”    article
Honorsble    Patrick   H. Simmone - Page 2         (JM-192)




1651, V.T.C.S..    and the potter to disapprove certain claims against the
county unless contracted        for according    to law, he does not have the
authority   to require    prior    approval of salary      “claims.”    Of course,
the auditor may refuse to s:o-sign        a salary warrant which he believes,
in good faith,    to be unauthorized.       Without his signature.       the county
warrant   is invalid    and camzot be paid by the depository.              Attorney
Caneral Opinion S-149 (1955).          The courts have been inconsistent          in
their discussion     of a count:r auditor’s     authority    to disapprove   salary
warrants.    The rule to be tlczived from the cases. however. is that if
the county employee, as a clatter of right,           is entitled     to be paid a
sum certain,    the county autl:Ltor has a ministerial        duty to co-sign the
warrant and may be subject to a writ of mandamus to do so; however, if
the auditor    has reasonable      grounds on which to question         the salary
payments, he may. in his dA,Ecretion , refuse to co-sign the warrant,             in
which event   the employee’s remedy is a suit against the county rather
than a mandamus action agaj,r,st the auditor.         In any event, it is clear
that salary    payments are n>t “claims” under articles              1660 and 1661
which require     prior  approval     by the auditor      of such claims before
action of the commissioners court.           Article   1660. V.T.C.S..     provides
that

             1411 claims,        t8illa     and accounts   against  the
             county must be fj.led in ample time for the auditor
             to examine and allprove same before the meetings of
             the    comissionerci        court.    No claim.   bill  or
             account shall be r.llowed or paid until it has been
             examined and app:cc)ved by the county auditor.         The
             auditor    shall   examine the sams and stamp his
             approval    thereon,       If he deema it necessary,   all
             such accounts,       ‘bill    [sic],   or claims   must be
             verified   by affi,iwit       touching the correctness  of
             the same.      The auditor        is hereby authorized  to
             administer oaths l’or the purposes of this law.

Article     1661, V.T.C.S..    metalwhile.   states   the   following:




                  Section 1. E,e shall not audit or approve any
              such claim      unl~s     it   has been contracted          as
              provided by law, nor any account for the purchase
              of supplies      or materials      for the ,use of said
              county or any of !.ts officers,        unless, in addition
              to other reqdirrments        of law, there is attached
              thereto    a   requisition      signed    by the     officer
              ordering   same an2 approved by the county judge.
              Said requisition      must be made out and signed and
              approved in triplicate        by the said officers,        the
              triplicate   to raprlin with the officer       desiring    the




                                          p. 839
Honorable   Patrick   H. Slwons    - Page 3      (JH-192)




            purchase,   the &rplicate   to be filed     with the
            county auditor.   cmd the original  to be delivered
            to the party from whom said purchase Is to be made
            before any purchase shall be made.      All warrants
            on the county tlz!asurer.  except warrants for jury
            service,  must be-counter signed by the auditor.

               ‘Sec. 2.   The county judge of a county having an
            auditor   may waive by his owu written      order the
            approval of the county judge on requisitions.       The
            order   shall  be .recorded in the minutes of the
            Cowissloners     (Iourt.   If  the   county    judge’s
            approval is waived. all claims must be approved by
            the Conm&Monexs Court in open court.         @mphesis
            added).

     The above requirements for the approval of claims do not apply to
payments out of the county treasury    for salaries,  judgments against
the county which are settl.c!d by the commissioners court. or purchases
under special contract.   Attorney General Opinion 8-977 (1977).

       The most recent         ca;ltr discussing    the auditor’s     authority     to
withhold      his signature     fxom salary warrants     Is Smith v. I4cCoy. 533
S.W.2d 457 (Tax. Civ. App. - Dallas            1976. writ dlsm’d).     In this case
three deputy sberiffs         had been suspended without pay by the sheriff
and later      reinstated.     TCz sheriff    requested the commissioners court
to award back pay for the period of the suspension.              The comdssioners
court agreed to do so a:iLi issued the warrants,                which the auditor
refused      to co-sign,    ques:::loning the legality      of back payments for
salary      to suspended      couhty employees.        The deputy     sheriffs,     as
plaintiffs,      sued for a writ      of mandamus against     the auditor.    seeking
to compel his co-signaturr:.          The court found that the auditor did not
abuse his discretioh        in r8eCusing to co-sign     the warrants because the
matter of back payment prc!clented a “difficult           legal question,”      or, In
other words, that the plaintiffs            did not as a matter of law have a
right to the salary payments.

       Where a claimsnt’s     r!L(:ht is established    as a matter of law, the
auditor has a ministerial        tluty to approve payment.      Thus, in the case
of Jackson v. Leonard, 578 S.W.2d 879 (Tex. Civ. App. - Houston [14th
Dist.1 1979, writ ref’d n.r.e.),          the court held that the audit6r could
not question       the salary      increases    awarded justices    of  the peace
pursuant     to  the salary     Ii::ievance committee procedures.       The court
found that these claims were not claims subject                  to the auditor’s
approval authority under articles           1660 and 1661, but that he was under
a ministerial       duty to cc-sign       the warrants.    See also Nacogdoches
COUlltY V. Jinkins.      140 S,,\l.Zd 901 (Tex. WV. App. - Beaumont 1940,
writ    ref’d)    (the  county auditor        had no authority      to disapprove
district    clerk claim for salary under articles        1660 and 1661).




                                        p. 040
Honorable    Patrick    H. Simmons - Page 4             (JM-192)




      In the case of Guerra v. Weathbrly,       291 S.W.2d 493 (Tex. Civ.
APP. -  Waco  1956,  nowrit),:   the county  had  employed an attorney for
which the conmissioners     court had ordered three separate warrants to
be issued   serially  as compensation.     The county auditor   refused to
co-sign  the warrants   and t’h: attorney   sued for a writ of mandamus.
The court did not discuss al,ticles    1660 and 1661, as to whether or not
these payments were claims :subject to auditor approval,     but held that
the conrmlssionera court was r,uthorized to employ an attorney and order
warrants for his compensatlc~r, to be Issued.

       Earlier     opinions     from the attorney general’s              office    have been
less than ,clear regarding the’ auditor’s             authority to disapprove salary
payments.       None of the opinL,ns clearly           conclude that the auditor may
simply withhold         his signature       if he believes          that the expenditure
would be illegal.           Attorney General Opinion O-6624 (1945) concerned
the employment and payment ol’ an inventory clerk for the county.                         This
opinion     concluded       that,    pursuant    to article          1651. regarding       the
auditor’s      authority       to see to the strict               enforcement      of county
finances,     the auditor would be authorized            to inquire as to whether the
clerk     was      actually      performing      duties       contracted       for    by   the
commissioners court.           The olbz.nion simply concluded that if the auditor
believes     that an employee is not discharging                   his duties,     he should
simply     refuse     to counter-sign         the employee’s          warrants.      Attorney
General     Opinion O-4053 (1541) concerned the authority                       of a county
attorney to continue salary payments to an individual                        not working on
account of personal injury.             This opinion advised that the auditor has
 the authority       under article       1660 to require          an affidavit       from the
county commissioner           for ir>m the injured             employee worked, to the
effect    that indeed the individual           was employed and working.              Ewever,
as we have discussed            above!,, article     1660 does not apply to salary
payments,       since    they are not accounts             or claims.         Similarly.      in
Attorney General Opinion O-5890 (1944).                   it    was found that payrolls
 signed    by the respective            county    officials        were’ required       to be
 submitted to the county autl:ltor for his approval under article                        1660.
We believe       that to the exta!nt that either of these opinions conclude
 that articles        1660 and 1661 require           prior      approval     by the county
 auditor     of    salary     payments,     they   are      in error       and are hereby
 overruled.

       In Attorney    General Opinion O-5049 (1943). St was concluded that
the commissioners court’s        duty to audit and settle     claims against the
county pursuant to article        2351(10) cannot be delegated to the county
auditor under a standing o:c&er authorizing          the auditor to pay county
officials    and employees wIthJut periodic      approval by the comlssioners
court.     In other words, tbe monthly payroll         reports   prepared by the
respective     county offlcialll   are turned in to the commissioners court
for its approval and its order issuing          salary warrants.     See V.T.C.S.
art.     1637.    Attorney    General   Opinion    O-5049 concluderthat        the
commissioners court cannot clelegate this responsibility            to the county




                                             p.   841
Honorable   Patrick    H. Slmorr      - Page 5      (J&192)




suditor.     In summary, we conclude         that   salaries paid   to county
employees require c~issicl~,ers       court approval before  any  warranxs may
be issued.     The auditor’s    prior    approval  is not required,    but his
co-signature   must be affixciil to the warrant before it may be paid.

                                      SUMMARY

                Salaries     paid   to    county   employees    require
            approval      by   tl~    co&ssloners       court    before
            warrants    may be issued but do not require          prior
            approval     by tht! county      auditor,    although    his
            co-signature     is required.




                                                (l$&Y&b
                                                    Attorney   Gsneral   of   Texas

TOM GREEN
First Assistant       Attorney   Grleral

DAVID R. RICHABDS
Bxecutive Assistant       Attoane-r   General

Prepared    by David Brooks
Assistant    Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpio,    Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellitiger
Nancy Sutton




                                           p. 042
