Honorable Sam Burris         Ooi,nion
                              .~-    No. S-149
District Attorney
79th Judicial District       Re: Duties of County-Auditor,
Alice, Texas                     approving claims, ~bills
                                 and accounts against the
                                 county and.related ques-
DearMr.   Burris:                tions.
          You have requested an opinion.on the following
questions:
          1; Are theprovisions of Articles 1660'
     and 1661 of Vernon's.~CivilStatutes, providing
     that'all bills and accounts shall.be examined
     and approved by the County~Auditor'and that?all
     warrants on the County Treasurer except warrants
     for jury service must be signed by the County
     Auditor-,mandatory?    ,.
          2; .If claims~arepaid'by the Commissioners'
     Court without the'approval'of the.County Auditor,
     will it constitute an unlawful expenditure of county
     funds?
          3~. 'If warrants other than warrants for
     jury~service'are'issued~'dh the County Treasurer
     without being countersigned by the County'Auditor+
     is the County Depository authorized to cash such
     warrants?
          4. May'moneys paid outon bills not approved
     by the County Auditor be recovered‘.bythe county?

          5’. May moneys paid out on warrants not
,    countersigned by the County Audi.torbe recovered?
          The office of County Auditor was originally created
by the Legislature~in 1905 -by the enactment of 'the provisions
of Senate Bill 2’58, Acts~ of the 29th Legislature, Regular
Session, 1905, Chapter 161, Page 381. Section 1 of the
original Act required each county having therein a 'citywith
a population of 25,000 orover to.have a County Auditor.
Section 2 provided that the.Auditor.shall be appointed by the
Judges of the County and District Courts having jurisdiction
Hon. Sam Burris, Page 2   (S-149)


in the county.   Section 12 provided that:
         ."A11 warrants on the county-treasurer,
     except warrants for jury service, must be
     countersigned by the county auditor. . . "
Section 15 provided:
         "All'claims, bills and accountsagainst the
    county must be filed'in ample time for the auditor
    to examine and approve same before the.meetings of
    the.commissioners- coiirtr.~andno claim, bill or
    adcount shall Abe allowed'or paid until same shall
    have been examined and.approved by the county auditor.
    It shall'be the.duty of the auditor to examine.and
    stamp his approval thereon. If deemed necessary all
    such accounts~must be verified by.affidavittouching
    the correctness of same.before some person authorized
    to ~administeroaths~,and the auditor is hereby
    authorized to administer oaths."
A study of the original Act together with ~the various amend-
ments to date reveals that the legislative ,purpose in creating
the office'of County Auditor was to provide~~ademocratic
system~of'checks and balances in relation to county finances.
Therefore/the appointment was left to the Judges having
jurisdiction in the.county rather thanthe Commissioners'
Court. The statutory duties prescribed for ,the County Auditor
are first;to'assist inthe preparation of,the county budget
and second,.to act as a~watchdog over the county funds.
          If a Commissioners' Court could capriciously refuse
to seat the County Auditor or abolish.the office of'county
Auditoras~Was~attempted~in Duval County, (In Dan Tobin, Jr.
eta1 v. Donato Serna; now pending in the Court of Civil
Appealsforthe Fourth Supreme'Judicial'District; the trial
court etijdined-~theCounty Judge and County Commissioners 'of
Duval County~from Interferingwith'Donato Serna's.occupandy
end enjoyment of the bffice of~coiintyAuditor,of Duval County
or from preventing ~him~~from~assumingEthelduties~of County '~
Auditor of'Duva1 County to.%hich officehe- had been appointed
by the'District Judge)it would be a~mockery'of~not'only the'
purpose of this us~efuland worthtihile'office,'butwould 'in
fact allow 'the Commissioners' Court to dictate to the person
who would be checking upon it. The history of the legisla-
tive enactments reveal that the Legislature has never permitted
this to happen,. As you will recall, during the past year in
Duval County we have seen the amazing philosophy advanced that
those charged and under investigation should be allowed'to sit
on the grand jury actually investigatingthemselves, and that
Hon. Sam Burris, Page 3    (S-149)


they should be prosec.uted'bya person of their mown choice,and
selection a.3well as to be tried by a Judge of their own ,choice
and:selection.             :
          In answering your questions;~it must be keptin'
mind'the'legislative purpose and history in the creation of
the office of County Auditorand his statutory'duties 'pre-
scribed by the Legislature;. Article 1645,~Vernon"sCivi1 :
Statutes, requires that Duval County have a County Auditor.
          Articles 1666 and 1661 of Vernon's ~1~11 Statutes
contain almost'the identical language contained ,in the -' ~~
oqiginal 1905 Act above quoted. These Articles now provide:
          Article ~1660;
          "All claims, bills and accountsagainst the
     county.must be'filed in ample,'timefor the auditor
     to examine andapprove,same before.the meetings-of
     the commissioners ~court. iJo~claim;'billor account
     shall be.allowed orpaid:'until ithas been examined
     and approved by the .countyauditor.. The audit& shall
     examine the same and stamp,his approval thereo~n. -~
     If he de~ems:itnecessary, all,such accounts, bill,:or
     claims .mustbe verif.ied..byaffidavit~fouching 'the
     correctness -of the same..-'Theaudito'rishereby
     authorized to.administer oaths forthe 'purposeso'f
     this iaw.~"
          Article 1661.
           "He shall not,~auditor approve any such claim
      unless it has ~been contracted as provided by law, nor
      any accountfor the purchase of supplies or materials
      for-the use of said county or any of itsofficers,
      unless, in addition to other requirements of law, there
      is attached thereto a requisition signed by the officer
    ~ ordering'same and approved by the co~untyjudge. Said
      requisition must be made~out and signed and approved
      in triplicate by the said officers, the triplicate
      to remain with the officer desiring the purchase, the
      duplicate to be filed with the county auditor, and 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.treasurer. except
      warrants for jury service, must be~,countersignedby
      the county auditor."
          Article 1660 specifically prohibits~the payment
of any claim, bill or account until it has been approved by
c




    Hon. Sam Burris, Page 4   (S-149)


    the County 'Auditor. Article 1661 requires thatall~ warrants
    on the'county Treasurerexcept warrants for jury service be
    countersigned by the County Auditor. !l!he language in these
    Articles is-written in mandatory.terms and it is our opinion
    that its provisions are mandatory.
              Since Article 1660 prohibits any claim, bill or .'
    account from being paid~until it has been examined and approved
    by the County Auditor, payment of such~claims would constitute
    an unlawful expenditure of county'moneys if the same has not
    been approved by the County Auditor. Wyatt Metal'&.Boiler
    Works v. Lipscomb, 87 S.W.2d 331 (Tex.Civ.App..l935, error
    ref.).
              In ~Wyatt Metal & Boiler Works v. Lipscomb, supra
    the Court stated:




        right ~&bring :suit against the county~on his.~claim
         is the same whenthe~.claim has been re'jectedby the
         county auditor as it is when the claim hasp~been rejected
         by the ~omis$ioners ' ~court in counties which.have no
        ;auditor;~'Falls County v. Bdzeman, supra;'Andersonv.
        Ashe, supra. Inthe light of the above authorities,
        hit is clearthat' theeplaintiff inerror had a right to
         Pile'suitto establish its~claim‘against the .'county
        when't~e.'Budi~or~'refused~
                                  tomapprove':its:claim;..but:
        the ~~~ts~wiIl"n~t'~dompel'b~~~alldamus~ anauditor to
         approve'such a claim. Anderson v: Ashe, supra. It
         seems to this court that the county auditoracted
        wisely in refusing to approve the claim of plaintiff in
        ,error"under,the.factq as disc~losedby the'record, a
         part only of .which.wasset out above. Such facts
         show~a total disregard for the law with respect to the
         purchase.of supplies-for the county, and by refusing
         to a~pprovethe claim, plaintiff in error was relegated
         to the courts where all partiesrights may be
Hon. Sam Durris, Pag'e5   (S-V-Q)   .'


    determined and allowed in accordance with all of the
    facts developed on.a~hearing. The Irelief sought
    in this proceeding .is a'mandamus‘only, and we are not
    here..concerned.nor called upon to determine-the rights
    of:plaintSffPin error'to any otherrelief.    Togrant
    the mandamus,in this suit would,have the.effect of
    forcingFannin~ county to pay,a'.claim,whichhad not
    been;approvedby anyone.with'power..to.allow,9the
    same, sin& such cl~aim' was rejected by:the.c.ounty
    auditor and thencommissioners' courthad:no ~jUris- :
    diction .to allow it, and their attempted approval
    was a nullity."
          In'order.:to:~insure
                             the county against,the unlawful
expenditure of.county,funds,'%~the
                                 Legislature has provided in
Article"1661 that all-warrants except warrants for jury ser--
vice'mu~,F~'~~~ounter~ig~ed.‘.~jjr.the
                                  County Auditor.. Therefore,
any warrant not.countersignedl.bythe County Auditor is
invalid.          :,   Y"
          Such'invalid warrant may not be cashed ~by the
County Depository and.the cashing'of an in&lid'warrantby
the Depository'would~constitute negligence :on the part of'~
the County Depository as,.
                         a~matterof~ law; Padgett vi Young
County ,204 S.W. 1046 (Tex.Civ..App.1918, error dism. 111
Tex. 96, 229 S.W. 459).
          In view ~of the foregoing, we answer your questions
specifically as follows:
          1. The provisions .of Article 1660 and.1661,
Vernon's Civil Statutes, are mandatory.
          2. The payment of claims, bills or accounts
which'have not been examined and approved by the County
Auditor constitutes unlawful expenditure of county funds.

       . 3. The dounty Depository is not authorized to
cash warrants other than'warrants for jury service which have
not been countersigned by the County Auditor.
          4: Moneys paid'out on claims, bills, or accounts
which have not been approved by the County Auditor may be
recovered by the county.     /

          5. Moneys paid out on warrants which have not
been countersigned by the County Auditor may be recovered.
Ron. Sam Rurris, Page 6 (S-149)

                           SUMMARY

        !Ihe.provisionsof Articles 1660 and 1661
    Vernon's Civil Statutes, are mandatory and require
    the payment of.claims, bills or accounts against
    the county~to be examined and approved by the
    County Auditor and require that all warrants on
    the County Treasurer except warrants for jury
    service to be countersigned by the County Auditor.
    Moneys paid out on claims, bills or accounts which
    have not been approved by the County Auditor and
    moneys paid out on warrants which have not been
    countersigned~by the County Auditor may be recoverd.
