Opinion   No. JM-1249   has been withdrawn.
       .




.n>xx.t-                               November    29, 1990
.,rToRsml- aPNRRAL



           Honorable Becky B. McPherson           Opinion   No. JR-1249
           District Attorney
           Ployd County                           Re: Supervisory authority of
           110th Judicial District                a district court over a com-
           Floyd County Courthoune                missioners court with regard
           Floydada, Texas    79235               to the    transfer    of  funds
                                                  from a county    attorney to a
                                                  district attorney     (RQ-2068)

           Dear Ms. McPherson:

                 You have reguested our opinion about a dispute    between
           your office and the district    judge relating to your   agree-
           ment with Floyd County   to act as county attorney pro     tern.
           For purposes   of this   opinion, we will     discuss  the   law
           applicable to the facts as you have presented them.

                 In September 1969, the county attorney of Floyd          County
           retired, and    after   a diligent    search,    the   commissioners
           court was unable     to find   a qualified     successor.    You,    as
           district attorney for a four-county district,            then made    a
           written proposal to the      commissioners    court that you     would
           undertake   misdemeanor      proeecution      responsibilities       in
           exchange for a monthly payment of $1750.00 plus an addition-
           al amount of approximately     $2165.00 per year to cover office
           supplies, travel, and liability insurance.          You specifically
           agreed that    no portion of this        money would     be used     to
           supplement your     salary,   but it could      be applied    to   the
           purchase of books and      equipment, and to supplementation         of
           staff   salaries.     The   commissioners     court,    in executive
           session, adopted your proposal       on October 23, 1969.        Funds
           paid to your office by the commissioners         court were    placed
           with a Floydada bank in a segregated account in the name             of
           We&y    UcPherson, District Attorney, County Trust          Account.w
           Each   misdemeanor    case you    handled was     accompanied by     an
           "order appointing special prosecutor," signed by the            county
           judge, pursuant     to article    2.07 of the Code       of Criminal
           Procedure.    You note    that more   than 100     such orders    were
           issued between October 1989 and July 1990.




                                              p. 6653
Honorable     Becky    B. McPherson   - Page 2   (JM-1249)




      Subsequently, the Honorable David Cave, Judge of the
110th District Court, under date of June 20, 1990, issued an
"order appointing a special  auditor."1

The order reads, in part:
               This Court, pursuant to the powers    vested
            in 'it by   the laws   of the State   of Texas
            hereby appoints LGvE, HAYS C BlDSICX 2514 026.
            Street, Suite   5, Lubbock, Texas     79423   to
            perform a complete audit    of all such  monies
            which were paid out of the Treasury of Floyd
            County, Texas to the said Beckie McPherson,
            including but   not limited   to the  $1,750.00
            per month which    was   paid over to her as
            hereinabove  set out.

               All persons   having access   to or control
            over any   and all   records, books,   receipts,
            bank statements or other financial     documents
            of whatsoever    kind   or nature    are hereby
            Ordered to prwide      and make  available    for
            audit, copying   and   inspection to the     said
            auditor at the places and times designated by
            the said auditor.

               The Auditor   shall make much audit    and
            examination with   all deliberate  speed  and
            shall make a full and complete report to this
            court.

               If at any time  during the performance  of
            such duties the auditor may need access to or
            copieu of any documents   or things   and may
            need Writs  from this  Court to procure   any



      1. Almost concurrently,   two other incidents    occurred:
On June 18, 1990, the commissioners    court entered a nunc pro
tune order  ratifying its actions of the previous October and
indicating,  in writing,  its agreement with your     proposals:
and under date of June 29, 1990, Mr. Larry Craddock, General
Counsel for   the Office   of Comptroller,   sent a letter     to
Judge Cave   which indicated   that after   reviewing   relevant
documents, he was persuaded    that you had   not acted in any
way to preclude    receipt of your state    salary as district
attorney.




                                      P. 6654
' Aonorable     De&y       0. McPherson    - Page 3     (JM-1249)




           document or thing then he imp Wereby EElPoWERED
           AND DIRECTED to employ the service8 of George
           Thompson, Attorney at Law, Lubbock, Texas    to
           file and prosecute such Writs or Petitions as
           the attorney may deem necessary and proper to
           effect and carry out the audit, the subject
           of this order.

 On July   2,  1990, the  mpecial   auditor made an   in-person
 demand upon you for all   financial records relating both    to
 the disputed funds   and to funds received    from the  state.
 You agreed to provide the former, but refused the latter     on
 the ground that such funds were not subject to commissioners
 court mupervimion.

       Also on July 2, 1990, Judge Cave issued a written order
  to the   county clerk  of Floyd County, instructing     her   to
  "turn over to . . . [the]   District   Clerk the tape   record-
  ings of the commissioners  meeting   held on October 23,    1990
  for her to place   in a safe deposit   box for safe   keeping."
  The judge also demanded an opportunity to listen to the tape
  recording.

        You amk first   about the propriety    of the    district
  judge's order appointing a special auditor.2    Section 84.002
  of the Local Government Code provides, in pertinent part:

              (b)        In a county   with     a population   of   less
              than      10,000:

                  (1)   the district judges may    appoint   a
              county auditor if the judges determine      that
              the county*5 financial circumstances    warrant
              the appointment: and

                  (2)       the district      judge5   shall appoint   a
              county      auditor if:




        2.    This office does not review judicial orders.             m
  Open   Records    Decision     No.  415   (1984).     In   this    case,
  however. the iudae is actinu in an administrative             caoacitv.
                 #S &*       of  Nat.                      , 141 -S.W.id
  764 (Tex.    Civ. App.       - 1940), rev'd    on the    area     , 146
  S.W.2d 170 (Tex. 1941).




                                           p. 6655
. Aonorable   Becky   B. McPherson   - Page    4   (JM-1249)




              (A)  the oommismionerm  court find5 that a
          county auditor  is necessary    to oarry   out
          county business and   enters an order in its
          minutes stating the reason for this finding;

              (B)      the  order  is      certified     to      the
          district     judges: and

              (Cl    the district judges find the reason
          stated b the commissioners caurt to be good
          end muff 1 cient.

 Floyd County     is a    county   with   a population        of less   than
 10,000.

       Chapter 84 of the Local Government Code, when read as a
 whole, make5 clear     that the only    authority conferred on      a
 district judge with regard     to the appointment of an auditor
 is to appoint an individual to fill the position of regular
 county auditor.    Section 04.003     speaks of the selection     of
 ma -5        as a county   auditor; section 04.004 5pecifie5        a
 *term of office5 of two years: and section 84.006         describes
 the minimum gualificationm     for the    position in terns of 'Ia
 ESBQD."      (Emphasis   added.)     Nothing    in chapter   64 or
 elsewhere gives any indication that the legislature         contem-
 plated the appointment     by a district     judge of an   auditing
 firp rather than an individual, nor that it contemplated         the
 appointment   of an auditor      for  the   specific  and   limited
 purposes set but in Judge Cave’s      order of June 28, 1990.

       Furthenuorm, Section   115.031 of the Local       Government
 Code pnen provide for specific     purpose audits by ma disin-
 terested, competent and expert public accountant.5        See als
 Local Gov*t   Code 95 115.041    (independent audit     in count!
 without office of county auditor),       115.042 (joint     special
 audits by counties of less than 25,000 population).         Section
 115.031, however, lodges the dimcretion'to      employ a specific
 purpose auditor squarely    in the   co~issioners     court.     The
 district judge is not a part of this process.

       Finally,   it might     be  contended    that   the  following
 constitutional    provision    justifies   the   appointment   under
 consideration    here:

          The   District    Court  shall   have    appellate
          jurisdiction   and general supervisory control
          war   the   County   com515510ner5    Court,   with
          much exceptions and under such regulations as
          may be prescribed by law.




                                     p. 6656
Honorable       Wecky   B. WcPhermon   - Page 5   (JM-1249)




Tex.   Conmt.     a*.   V,   i   8.

      In Attorney     General Opinion JW-708 (1987), we maid that
a district court Way exercise "general supervisory          control5
over the    actions     of a co55iSSiOner6     court  only   when    a
lawsuit 15 brought in district         court seeking rmview of     the
commissioners     aourt'm actions.     The  opinion noted that     the
courts have Wade clear that the legislature has not           wemtab-
limhed a procedure         for invoking the general      supervisory
control of     dimtrict   courts    wer actions    of commi5sioners
courts. * Saa SOOtt       V.  B,        292 S.W.td 324, 328      (Tex.
1956) 8 vd                         CO.  V.  Be                  Fregh
-t                               506 S.W.Zd 931 (Tex. Civ. App.      -
Tyler 1974, no writ): SS~ al5Q 1 G. Braden,         m
                                                                ative
w          415-16 (1977).      We conclude that the district judge
was without authority        to appoint a speaial auditor in the
circummtances     you describe.

      You also ask whether the   county is liable for   charges
incurred by the   county auditor.   Since  the appointment    of
the auditor warn void, and the commissioners     court had    no
part in his appointment, we know of no legal basis to assess
any charges against the county for services performed by the
auditor.

        You next  ask whether the     action of the district   judge
in obtaining physical custody of the tape recordings of the
commi5sioners     court   executive    session  violated   the  Open
Xeetinas A&.      article 6252-17.     V.T.C.S.  Section 2A of   the
statuti    prwides,    in part:     '

            (a)    In lieu of the requirements for main-
            taining a certified      agenda am provided    in
            Subsections   (a), (b), and (c) of this      sec-
            tion, a governmental body      may make   a tape
            recording   of the proceedings      which   shall
            include an announcement made by the presiding
            officer at the     beginning   and  end   of the
            meeting indicating the date and time.

            (4       The certified agenda    or tape shall   be
            available for      in camera inspection     by  the
            judge of a district       court if litigation   has
            been initiated involving an alleged violation
            of this    Act.   The court upon entry of a final
            judgmeningy       admit the   ;;rti;At;eagenda   '1;
            tape              evidence                   or
            pa*     . . . .




                                       p. 6657
* Honorable     Becky   B. McPhermon   - Page 6      (JM-1249)




              (f)   The    overnmental  body  shall  preserve
              the certif 1 ed agenda or tape for at least two
              yearm after the date of the meeting.

                     contemplate5   that   a district     judge  ;D;
 E$gg'g        !;A   oemera in5pection~    of the tape     only
 litigation has been initiated involving an alleged violation
 of this Act.”     Under the circumstances    you describe, no such
 litigation had been      initiated at the time     of the   judge's
 order of July 2, 1990.      The ngovenmental    body" that is the
 subject of the tape is its proper custodian and is required
 to preserve it "for at least two year8 after the date of the
 meeting.*

       The statute       further   provides   that

          0)    No individual, corporation,   or partner-
          ship shall, without   lawful authority,     know-
          ingly make   public  the certified   agenda    or
          tape reaording of a meetfng    or that   po*ion
          of a meeting that was closed under     authority
          of this Act.

 Thus, it appears both that   the district judge exceeded    his
 authority in taking possession    of the tape and that the
 county clerk acted in violation of subsection    (h) in releas-
 ing it to him.   We note, however, #at   subsection  (j) could
 provide an affirmative defense to the county clerk.

       Your final   guestion  asks whether   Judge    Cave    should
 recuse himself    in future litigation    over   these    matters.
 Since no   litigation    ham been  initiated,    we    decline     to
 speculate about what possible course     it might take, and        in
 accordance therewith, about the propriety of recusal.



                               BUMMARX
                 A district    judge    has no   authority     to
          appoint a *special         auditor"   to conduct      a
          limited inguiryr his authority is limited            to
          the appointment of a regular county            auditor
          under    the   requisite     ntatutory    provisions,
          chapter 84 of the       Local Government Code.
          district     judge   also    lack5   the   authorityA
          absent    pending    litigation     under   the   Ope;
          Weetingr Act,    article     6252-17, V.T.C.S.,      to
          order a county clerk to turn over          possession




                                        p. 6658
* Honorable        Secky   B. McPherson      - Page 7    (JM-1249)




              of    5 tape recording  of an executive    5e55ion
              of    a meeting of a commi55ioner5  court.




                                                  JIM        MATTOX
                                                  Attorney    General   of Texas

  MARY NNIJIER
  First Amsimtant          Attorney     General

  IOU x!cREARY
  Executive Assistant           Attorney     General

  JUDGE ZOLLIE STRAKLEY
  Special 'Umistant Attorney               General

  RBNEAHIcxs
  Special Assistant          Attorney      General

  RICK GILPIN
  Chairman, Opinion          Committee

  Prepared by Rick Gilpin
  Asmimtant Attorney Genmral




                                              p. 6659
