                                ATTORNEY GENERAL OF TEXAS
                                             GREG        ABBOTT




                                                 March 31,2003



The Honorable Mark E. Price                                     Opinion No. GA-0053
San Jacinto County Criminal District Attorney
1 State Highway 150, Room 2 1                                   Re: Auditing of certain accounts held by a
Coldspring, Texas 7733 1                                        criminal district attorney (RQ-0624-JC)

Mr. Ray Stelly, C.P.A.
San Jacinto County Auditor
1 State Highway 150, Room Bl
Coldspring, Texas 7733 1

Dear Mr. Price and Mr. Stelly:

         Mr. Price’s predecessor in office and Mr. Stelly asked this office several questions relating
to an ongoing special audit authorized by section 115.032 of the Local Government Code. The
District Attorney’s office contends that certain funds are not subject to audit in this matter, and the
County Auditor’s office disagrees. The funds in question are (i) moneys distributed to the District
Attorney’s office pursuant to the Professional Prosecutors Act, chapter 46 of the Government Code,
(ii) grants from the criminal justice division of the governor’s office distributed pursuant to article
104.004 of the Code of Criminal Procedure, and (iii) the “hot check” fund created by article 102.007
of the Code of Criminal Procedure.

         As we understand the controversy giving rise to this request, a special auditor appointed by
the district judge pursuant to section 115.032 of the Local Government Code requested certain
records of these funds, and the Criminal District Attorney declined to comply with this request on
the ground that the County Auditor had no authority to inspect such accounts.’ Further, the special
auditor argues that a particular contract entered into by the District Attorney for the purchase of a
car for his office with “hot check” funds created an unconstitutional debt. To this, the District
Attorney’s office responds that the funds expended were subject to his sole discretion and did not
bind the county.*




         ‘Letter from Honorable Scott W. Rosekrans, San Jacinto County Criminal District Attorney, to Ray Stelly, San
Jacinto County Auditor (Oct. 11,2002) (on file with Opinion Committee).

         2Letter from Honorable Scott W. Rosekrans, San Jacinto County Criminal District Attorney, to Honorable   Joe
E. Adams, County Judge, San Jacinto County (Oct. 6,2002) (on file with Opinion Committee).
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         Section 115.032 of the Local Government Code provides for “a special audit of all county
records” to be performed in a county upon the petition of thirty percent of the number of its voters
in the last gubernatorial election. TEX.LOC.GOV’TCODEANN. 8 115.032 (Vernon 1999). A district
judge with jurisdiction in the county determines the validity of the petition and, if it is valid, employs
 a person who has the qualifications required of a county auditor to prepare and file the special audit.
Id.

         The first question is whether the state funds distributed to a district attorney’s office under
either the Professional Prosecutors Act or article 104.004 of the Code of Criminal Procedure are
subject to audit in this matter pursuant to section 115.032 of the Local Government Code.

         The District Attorney’s argument that the state funds in question are not subject to this audit
is rooted in section 115.0035(d) of the Local Government Code, which exempts such funds from
audit by the county auditor. But the authority for the audit in question derives rather from section
115.032, and the audit is conducted by the court-appointed special auditor. However, nothing in the
language of section 115.032 gives the special auditor powers greater than those of the county auditor,
and the county auditor is specifically denied the authority to audit these particular funds. See TEX.
Lot. GOV’T CODEANN. $5 115.032,115.0035           (Vernon 1999).

         As the District Attorney’s office has noted, the provision giving a county auditor authority
to audit funds collected by a district attorney or any county entity specifically exempts ‘-funds
received by the district attorney fi-om the comptroller of public accounts pursuant to the General
Appropriations Act” and federal and state grants. Id. 8 115.0035(d). Under section 46.004(b) of
the Professional Prosecutors Act, a district attorney is accountable to the state comptroller for the
funds provided to defray the costs of office. TEX.GOV’TCODEANN. $46.004(b) (Vernon Supp.
2003). Similarly, under article 104.004 of the Code of Criminal Procedure concerning grants made
by the criminal justice division of the governor’s office, “All money distributed to a county under
this article and its expenditure by the county are subject to audit by the state auditor.” mx. CODE
GRIM.PROC.ANN. art. 104.004(d) (Vernon Supp. 2003) (emphasis added). Section 115.0035(d)
excepts both of these funds fi-om county audit.

         The special audit provision, applying to “county records” generally, was first adopted in
1957. See Act of Apr. 17, 1957, 55th Leg., R.S., ch. 124, 1957 Tex. Gen. Laws 265. As the
emergency clause of the legislation makes clear, the concern behind the provision had to do with
“[tlhe fact that audits of county records under the present law are inadequate.” Id. Accordingly, the
emergency clause suggests that the intent of the legislation is for the special auditor to have oversight
authority of the county auditor. We conclude, therefore, that the powers of the two auditors are
coextensive and that the state funds in question are not subject to the special audit procedure.

       The next questions concern the “hot check” fund established under article 102.007 of the
Code of Criminal Procedure. See TEX.CODEGRIM.PROC.ANN. art. 102.007(a)-(f) (Vernon Supp.
2003). The District Attorney’s office contends that this fund is not subject to audit either by the
County Auditor or by the special auditor appointed under section 115.0032. In this instance,
however, we cannot agree. It is well established, as the District Attorney’s office argues, that the
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    “hot check” fund is “wholly outside of the county budgeting process.“3 However, it is equally well
    established that “[tlhe county auditor generally oversees the books and records of a county officer
    who receives or collects money ‘that is intended for the use of the county or that belongs to the
    county.“’ Tex. Att’y Gen. Op. No. DM-357 (1995) at 8 n.8 (citing TEX.Lot. GOV’T CODEANN.
    4 112.006(a) - General Oversight Authority of County Auditor). A county auditor may, for example,
    require the prosecutor to submit receipts for the purchase of goods and services from the fund. as an
    ordinary accounting and control procedure. Tex. Att’y Gen. Op. No. JC-0084 (1999) at 2. Given
    that the audit of the “hot check” fund is within the purview of the county auditor, it is within that of
    the special auditor as well.

              Because the “hot check” fund is a county fund, article XI, section 7 of the Texas Constitution
    applies to it. Article XI, section 7 provides in relevant part that “no debt for any purpose shall ever
    be incurred in any manner by any city or county” without provision for a tax to pay for the interest
    and a sinking fund. TEX. CONST.art. XI, $ 7. The District Attorney’s office has argued that it
    entered into a multi-year contract, but not one that involved county funds or bound the county. This
    argument attempts to distinguish the transaction in question from that under consideration in
    Attorney General Opinion JC-0395, which held that a district attorney may not bind the use of
    county funds for a long-term lease agreement. Tex. Att’y Gen. Op. No. JC-0395 (2001) at 2. The
    distinction, however, is unavailing. While opinions dating at least as far back as Attorney General
    Opinion MW-439 (1982) have noted that the county has no authority over the disposition of the “hot
    check” fund, the character of the fund, which is, pursuant to article 102.007, “deposited in the county
    treasury,” has not been disputed. TEX.CODECRIM.PROC. ANN. art. 102.007(f) (Vernon Supp.
    2003). Indeed, Attorney General Opinion MW-439 itself referred to the fund as a “special fund
    which is in the county treasury, but which is segregated from other county funds and earmarked for
    a specific purpose.” Tex. Att’y Gen. Op. No. MW-439 (1982) at 5 (emphasis added); see alsq Tex.
    Att’y Gen. Op. No. JM-313 (1985) at 9 (hot check fund “clearly comprised by county funds”).
    Attorney General Opinion DM-357’s conclusion that a county auditor had authority to oversee these
    funds, moreover, was premised on the funds in question being county funds. See Tex. Att’y Gen.
    Op. No. DM-357 (1995) at 8 n.8. Additionally, while the District Attorney has discretionary
    authority over the moneys in the “hot check” fund, nothing in the language of article 102.007
    purports to give him the contractual authority asserted here. “The district attorney had no authority
    to enter into a contract requiring the expenditure of county funds.” Tex. Att’y Gen. Op. No. JC-0395
    (2001) at 2. Accordingly, however these public fwnds may be denominated, the District Attorney
    has no authority to pledge them, whatever his power to expend them.

            The final question concerns the disposition of the funds granted to a district attorney’s office
    under chapter 46 of the Government Code, the Professional Prosecutors Act. While section 46.004
    does, as the District Attorney’s office argues, provide that the use of the funds is overseen by the
    comptroller of public accounts rather than the county auditor, it is silent as to where the moneys shall
    be deposited. Certainly the legislature could have provided for the money to be treated as a special
    fund in the county treasury as it did in the case of the “hot check” fund. See TEX.CODEGRIM.PROC.



\           3Letter fi-om Honorable Scott W. Rosekrans, San Jacinto County Criminal District Attorney, to Texas Attorney
    General at 5 (Oct. 17,2002) (on file with Opinion Committee) (citing Tex. Att’y Gen. Op. No. DM-357 (1995) at 6).
The Honorable Mark E. Price and Mr. Ray Stelly - Page 4           (GA-0053)




ANN. art. 102.007(f) (Vernon Supp. 2003). However, it did not. Accordingly, as the County Auditor
suggests, these funds are subject to section 140.003(f) of the Local Government Code, which
requires their deposit in the county treasury. See Tex. Att’y Gen. Op. No. DM-257 (1993) at 4 (law
“requires all funds of a specialized local entity to be deposited in the county treasury”).
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                                       SUMMARY

                       State funds distributed to a prosecutor under the Professional
               Prosecutors Act or article 104.004 of the Code of Criminal Procedure
               are not subject to the special audit provision of section 115.032 of the
               Local Government Code. “Hot check” funds established under article
               102.007 of the Code of Criminal Procedure are subject to such audit.
               A district attorney’s authority over the disposition of “hot check”
               proceeds does not empower him to make multi-year contracts binding
               them in violation of article XI, section 7 of the Texas Constitution.
               Funds distributed to a district attorney under the Professional
               Prosecutors Act are to be deposited in the county treasury.

                                               Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General - General Counsel

NANCY S. FULLER
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee
