                           November 29, 1988



    Honorable Lloyd Criss                 Opinion No. JM-986
    Chairman
    Labor and Employment                  Re: Duties of the county
       Relations Committee                auditor and the county
    Texas House of Representatives        treasurer in less popula-
    P. 0. Box 2910                        ted counties  (RQ-1491)
    Austin, Texas   78769

    Honorable Mark W. Stiles
    Chairman
    Committee on County Affairs
    Texas House of Representatives
    P. 0. Box 2910
    Austin, Texas   78769

C
    Honorable Marcus D. Taylor
    Criminal District Attorney
    P. 0. Box 689
    Quitman, Texas   78783

    Gentlemen:

         In Attorney  General Opinion JM-911   (1988), we were
    asked to determine which county official   in Harris  County
    was responsible for preparing county payroll and printing
    and distributing county paychecks.   After a lengthy review
    of the relevant provisions of the Local Government Code and
    prior opinions of this office, we reached the following con-
    clusions:

               (1) In Harris County and counties with a
            population  greater   than 190,000,    county
            officers are authorized   to issue warrants
            against the salary fund of the county     (or
            general fund, if there is no salary fund) to
            pay salaries and draw checks on the county
            treasurer to pay salaries. LQC. Gov't Code
            55 113.047, 154.043.

               (2)  In Harris County and counties with a
            population  greater   than 500,000,    county
            officers and department heads are required to




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Honorable Lloyd Criss
Honorable Mark W. Stiles
Honorable Marcus D. Taylor
Page 2 (JM-986)




        prepare  the payroll  for          their respective
        offices or departments.            Lot. Gov't Code
        5 151.903.

           (3) Both functions      peay be    delegated   to
        the county treasurer.

           (4) The county auditor is not         authorized
        to perform either function.

      Each of you asks questions concerning   the effect of
Attorney General Opinion JW-911 on counties with populations
less than that of Harris County. Representative Criss asks
whether the county auditor may prepare payroll warrants
and/or checks   in a county with a population     &SS    than
190,000.     Representative Stiles asks whether the county
auditor is the proper county official to compute      county
payroll deductions and prepare paychecks in a county with a
population areater than 190,000, but less than 500,000. Mr.
Taylor asks about the general applicmity     of the opinion
to a county with a population of 190,000 or less. Represen-
tative Criss also asks a question about the roles of the
county treasurer and the county clerk in payroll matters   in
a county with a population under 190,000. For the purposes
of this opinion, we will presume that the office of county
treasurer has not been abolished by constitutional    amend-
ment.

     your questions are prompted by the concerns of offi-
cials in a number of smaller counties regarding the proper
division of payroll   duties in their counties.  Several   of
these officials    are uncertain   whether Attorney   General
Opinion J?4-911 requires a redistribution  of employees   and
budgeted funds to accommodate the transfer of such duties to
the county treasurer.      Other officials have     expressed
skepticism over the applicability of the opinion to their
counties, given the opinion's reliance on statutes with
population  brackets   exceeding the population    of   their
counties.  A closer reading of Attorney     General   Opinion
JM-911, however, will reveal that it bears relevance to all
counties of the state, particularly as it concerns        the
duties of the county auditor and county treasurer.

Countv navroll nrenaration and vrocessinq

     The question  of which officer in Harris     County  is
authorized to prepare and distribute payroll was resolved by
reference to three sections of the Local Government    Code.
Section 151.903 requires county officers     and department




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Honorable Lloyd Criss
Honorable Mark W. Stiles
Honorable Marcus D. Taylor
Page 3 (JM-986)




heads in counties with a population of 500,000 or more    to
file a sworn payroll at the close of each month under a
system prescribed by the county auditor. The section does
not designate an office or officer to receive or process the
payroll. We did not construe the provision     to grant the
county auditor any broader authority over payroll than that
already possessed by the auditor under section 112.002 of
the Local Government   Code.    Section 112.002 applies   to
counties with a population of 190,000 or more and authorizes
the county auditor to (1) prescribe a system of accounting
for the county and      (2) adopt and enforce    regulations
necessary for the speedy and proper collecting,    checking,
and accounting of county funds.

     In counties with populations of    less than 190,000,
county auditors have only the power to adopt and enforce
regulations that are not inconsistent with law or rules
adopted by the comptroller of public accounts prescribing
the forms for collecting and disbursing county funds and the
manner of keeping and accounting    of county  funds.   Lot.
Gov*t Code 55 112.001, 112.003. County auditors in these
counties, though, are not accorded authority over the county
payroll similar to that granted by section 151.903.    Thus,
our conclusion in Attorney General Opinion JM-911 that the
county auditor has no power to process the county payroll is
fully applicable  to counties with populations    less than
500,000.

Countv navroll deductions

     We.also determined in Attorney General Opinion JM-911
that the county auditor is not authorized to make payroll
deductions from the compensation of county-employees.      We
concluded that subchapter A of chapter 155 of the Local
Government Code did not give the county auditor the power to
make payroll deductions,     notwithstanding  its title    --
"CERTAIN DEDUCTIONS MADE BY COUNTY AUDITOR."   Nothing in the
provisions of subchapter A or its predecessor        statute,
former article 2372h-4, V.T.C.S., expressly authorizes    the
county auditor to '*make" payroll deductions.  At most, these
provisions require county employees in counties with popula-
tions of 20,000 or more to submit to the county auditor a
written request for payroll deductions or written notice of
revocation of the request.    Lax. Gov't Code § 155.002.   In
contrast stands section    155.021 of the Local Government
Code, which states that

        [t]he countv treasurer or, if another officer
        is specified by law, that other officer shall




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Honorable Lloyd Criss
Honorable Mark W. Stiles
Honorable Marcus D. Taylor
Page 4 (JM-986)




        m ak

        p nsa i n of countv emnlm        as required
        [Ey czzain enumerated statutes].    (Emphasis
        added.)

This provision concerns deductions other than those author-
ized by subchapter A, but it makes it clear that the county
treasurer,  and not the county auditor,      is the proper
statutory officer to make the authorized deductions from the
compensation of county employees.

     Representative Stiles asks whether the county auditor
may "compute" payroll deductions.   The authority    to calcu-
late and verify the amount of particular payroll     deductions
may be well within the county auditor's duty to oversee     and
report on the condition   of county finances, m    Lot. Gov't
Code §g 112.006-.007, 114.024-.025, 115.001-.003, but it is
certainly not within that authority to "make" or collect
such deductions.   That is, we do not believe it is within
the county auditor's power to take the administrative     steps
necessary to order amounts withheld from the compensation of
county employees.   Nor do we believe the county auditor      is
authorized to take actual or constructive      custody of the
deducted  amounts and transmit them to the appropriate
authority  or    entity.   See aenerally    Attorney    General
Opinions JM-585     (1986); V-711,    V-487   (1948).     These
functions are, in our opinion, more closely linked to county
treasurer's duties to act as custodian of county funds and
to disburse county funds.    m   Lot. Gov't Code 55 113.001,
113.041; Attorney General Opinion WW-1107 (1961).       Because
the duties of   the county treasurer and county auditor       in
this area do not depend on statutes bearing population
limitations, this aspect of Attorney General Opinion JM-911
is applicable to all counties of the state.

Prevaration of salary warrants and navchecks

     Attorney General Opinion JM-911 also determined        that
the authority to prepare warrants and/or checks in payment
of salaries was granted to county officers rather than to
the county auditor. This conclusion was based on sections
113.047 and 154.043 of the Local Government Code. The first
provision authorizes an officer in a county with a popula-
tion of 190,000 or more to draw checks on the office of
county treasurer to pay salaries and expenses: the second
authorizes a district, county, or precinct officer         in a
county with a    population  greater than   190,000   to   issue
warrants against   the  salary  fund of   the  county    to pay




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Honorable Lloyd Criss
Honorable Mark W. Stiles
Honorable Marcus D. Taylor
Page 5 (JM-986)




salaries of employees who may be paid from the fund. It was
our opinion that both of these functions could be delegated
to the county treasurer but not to the county auditor.
Several factors influenced this conclusion.     We realized
that to permit the county auditor to perform these functions
would be fundamentally   inconsistent with the system of
checks and balances erected by the legislature     to guard
county finances.  It would compromise the effectiveness    of
that system if the auditor were compelled to perform    func-
tions so closely connected to the disbursement of county
funds. .We concluded that the delegable acts of issuing
salary warrants and drawing paychecks, though ministerial in
nature, should be more appropriately delegated to the county
treasurer, given that officer's duties regarding the custody
and disbursement of county funds.

     We find nothing in the statutory provisions   affecting
counties with populations of 190,000 or less to suggest that
the county auditor possesses     any greater authority    to
prepare warrants and checks for the payment of salaries   of
county employees.    The significant   difference  in these
smaller counties  is that district,   county, and precinct
officers are not given statutory authority to issue warrants
or draw checks to pay salaries.

     Attorney General Opinion JW-911 has been criticized  as
failing to take into account the whole range of the county
auditor's responsibilities.  It is argued that the county
auditor's duties are comparable to those of a comptroller of
a private or public enterprise, and that payroll   functions
are compatible with the duties of such an officer.    It is
argued that the word "audit" includes preauditing        and
postauditing functions and thus contemplates the involvement
of the county auditor both before and after financial
transactions are completed.

     When applied to claims against cities, towns, and
counties, the phrase "to audit*' means to hear, examine,   and
determine a claim. Citv of Houston v. ChaDman, 145 S.W.2d
669, 672   (Tex. Civ. App. - Galveston 1940, writ dism'd
judgmt car.). In its proper sense, the phrase includes the
adjustment or allowance, disallowance,    or rejection   of a
claim. &       "Preaudit" has been defined to include the
examination of invoices, payrolls, and proposed    reimburse-
ments before payment. Kohler, A Dictionary for Accountants
362 (5th ed. 1975). This term is used to describe the "work
done to control the accuracy of the collecting and recording
of revenues and the incurring and recording of expenditures
and disbursements."   E. Lynn & R. Freeman, Fund Accountinq:




                              p. 5036
Honorable Lloyd Criss
Honorable Mark W. Stiles
Honorable Marcus D. Taylor
Page 6 (JM-986)




Theorv and Practice  881 (2d ed. 1983). "Postaudit"    means
simply to conduct an audit at some point after the occur-
rence of a transaction.    See id.; Kohler, suvra at 361
(definition of "postauditw).   None of these commonly used
definitions support the claim that a county auditor has the
authority to conduct the initial preparation and processing
of the county payroll prior to its presentation for approval
by the proper authority, to make payroll deductions, or to
prepare and distribute county salary warrants or paychecks.
If the county auditor has any statutory        authority  to
preaudit the county payroll, it is in pursuit of the county
auditor's duty to validate expenditures   prior to counter-
signing checks or warrants under section 113.043 of the
Local Government Code. See Attorney General Opinion JM-192
(1984), and authorities cited therein.
     Furthermore, the county auditor's performance of these
payroll duties would be fundamentally inconsistent with the
county auditor's  duty to audit county finances.       As we
observed  in opinion JM-911,    sound accounting   practices
dictate that the county auditor should not be placed in the
position of having to audit his own work. The fact that a
county*s finances may be subject to an independent     audit,
5ee LOC. Gov't Code §§ 115.031-.033, 115.041-.045,    neither
cures this inconsistency    nor overcomes   the absence    of
statutory authority delegating  payroll responsibilities   to
the county auditor.  In short, the county auditor simply has
no statutory power to assume payroll duties and, as the
following discussion reveals, the commissioners court has no
power to confer such duties on the auditor.

Deleaation of navroll duties~

     There are no statutory provisions applicable to smaller
counties similar to sections 113.047, 151.903, and 154.043.
This omission has led Mr. Taylor to ask which officer or
officers have the authority to delegate payroll functions in
such counties.  In Attorney General Opinion JM-192    (1984),
we concluded that in a county with less than 190,000 inhabi-
tants the county treasurer was responsible     for actually
disbursing funds to pay salaries.    We also said that the
proper authority in the payment of salaries was the commis-
sioners court, pursuant to its duty to "audit and settle all
accounts against the county and direct their payment"   under
section 115.021 of the Local Government Code. The commis-
sioners court accomplishes    this duty by examining      and
approving  monthly payroll   reports and issuing warrants
directing the payment of salaries. We noted that this
responsibility could not be delegated to the county auditor.




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Honorable Lloyd Criss
Honorable Mark W. Stiles
Honorable Marcus D. Taylor
Page 7 (JM-986)




     We adhere to the conclusions      of Attorney   General
Opinion JW-192. We'believe   the commissioners court's duty
under section 115.021 is sufficient  in itself to equip the
court with the power to approve the county payroll and issue
warrants directing  the county treasurer   to disburse   the
funds necessary to pay salaries. This does not mean that
the commissioners  court is responsible for prenarinq    the
county payroll, and for that reason this conclusion is not
in conflict with Attorney General Opinion JM-911.

     In opinion JM-911, we said that while the logic of the
constitution weighs in favor of the county treasurer's   pro-
cessing the county payroll,   the letter of the constitution
gives the legislature   the discretion to define the county
treasurer's duties.    We stated our belief that payroll
duties constitute part of the core functions of the office
of county treasurer, and but for sections 113.047,   151.903,
and 154.043, such functions should be performed       by the
county treasurer.   There are no similar impediments in the
laws applicable to counties with populations    of less than
190,000. Thus, we think that in these counties the county
treasurer must prepare the county payroll and present the
payroll to the commissioners court for its approval.   It is
the duty of the commissioners court to review the payroll
and, upon approval of the payroll, order the issuance of
warrants to pay salaries.

     In opinion JM-192 we said the commissioners court may
not delegate   its duty to approve the payroll      and issue
warrants to the county auditor, and we reach the same
conclusion with respect to the county treasurer.      See also
Attorney General Opinion O-5049 (1943). The commissioners
court may, however,    delegate the task of prenarinq    salary
warrants -- a,
             i e   the clerical task of writing the warrant
or filling   in blank spaces -- since this involves only
ministerial   actions.    Attorney   General Opinion    JM-911
(1988). We believe the county treasurer is the officer to
whom this function should be delegated.      Id.   It is also
worth noting that opinion JM-192 did not conclude that the
commissioners court was authorized     to draw checks to pay
salaries. That is a function which the county treasurer
performs by endorsing the face of a salary warrant with the
order to pay the named payee. Lot. Gov't Code S 113.042(a).
Only the people through constitutional     amendment, and not
the commissioners court, may deprive the county treasurer of
this essential duty. See Presidio County v. Walker, 69 S.W.
97 (Tex. Civ. APP. 1902, writ ref'd).          Therefore,   the
commissioners court may not draw checks to pay salaries.




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Honorable Lloyd Criss
Honorable Mark W. Stiles
Honorable Marcus D. Taylor
Page 8   (JM-986)




c 01                                              ' icates*'

     Representative  Criss asks    an additional    question
concerning the role of the county clerk in this process.

        Pursuant  to . . . sections     113.041(c)   and
        155.021 [of the Local Government Code], and
        where a county population is under     190,000,
        may the  county treasurer   prepare and issue
        individual payroll checks,    less authorized
        deductions,  to .county employees,     provided
        they are countersigned by the county auditor,
        if any, and issued in accordance        with a
        certificate prepared and issued by the county
        clerk, which does not contain words      'order'
        or 'bearer'; is marked 'Not Negotiable';     and
        attests therein that certain county employees
        are entitled    to    specified    compensation
        allowed and approved by the commissioners'
        court for a particular county payroll period?

     A brief submitted for our consideration of this gues-
tion urges us to conclude that the method of processing   the
county payroll proposed in your question is an appropriate
manner in which to authorize the county treasurer to prepare
and issue paychecks in counties not directly governed      by
opinion JM-911.  The portion   of our discussion  immediately
preceding, however, makes it clear that the county treasurer
needs no special authorization or permission from the county
clerk to draw paychecks in order to discharge his statutory
duties. As we noted earlier, the commissioners court is the
proper authority to order the payment of salaries. At-torney
General  Opinion JM-192    (1984).   We therefore   need not
consider the necessity of the alternative described in your
second question.

     To summarize, we conclude that in a county with a
population under 500,000, the county treasurer, and not the
county auditor, is the appropriate officer to prepare     the
county payroll and make deductions from the compensation   of
county employees.  In a county with a population of 190,oop
or less, the commissioners      court is responsible      for
approving the county payroll and issuing warrants in payment
of salaries.  These duties may not be delegated to either
the county auditor or county treasurer.     The ministerial
task of preparing salary warrants in such a county may be
delegated to the county treasurer.  The commissioners   court
may not draw checks in payment of salaries.




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 0
     Honorable Lloyd Criss
     Honorable Mark W. Stiles
 .
     Honorable Marcus D. Taylor
     Page 9 (JM-986)
P,




                             SUMMARY

                  In a county with a population       under
             500,000, the county treasurer and not the
             county auditor is the appropriate officer to
             prepare the county payroll   and make deduc-
             tions from    the compensation    of    county
             employees.  In a county with a population   of
             190,000 or less, the commissioners court    is
             responsible for approving the county payroll
             and issuing warrants in payment of salaries.
             These duties may not be delegated to either
             the county auditor or county treasurer.    The
             ministerial task of preparing salary warrants
             in such a county may be delegated 'to the
             county treasurer.   The commissioners    court
             may not draw checks in payment of salaries.

                                           Very truly yo   s


                                       J        A      ~
                                           JIM     MATTOX
                                           Attorney General of Texas

     MARY KELLER
     First Assistant Attorney General

     LOU MCCRKARY
     Executive Assistant Attorney General

     JUDGE ZOLLIE STEAKLKY
     Special Assistant Attorney General

     RICK GILPIN
     Chairman, Opinion Committee

     Prepared by Steve Aragon
     Assistant Attorney General




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