Honorable  Mike Driscoll              Opinion   No. JM-911
Harris County Attorney
1001 Preston, Suite 634               Re:   Which county official      is
Houston,  Texas   77002               responsible     for   preparation
                                      of the county payroll and the
                                      printing   and distribution      of
                                      its checks     (RQ-1135)

Dear   Mr.   Driscoll:

      You ask which      county official     is   responsible    for   the
preparation    of   county payroll      and   the printing     and    dis-
tribution   of    its   checks.     Presently,     the   Harris    County
Auditor    performs     these     functions.      The   Harris     County
Treasurer,   however,     claims    that    such   functions    properly
should be    performed    by   her office.       In two   well-prepared
briefs, your      office concludes      that the    county    treasurer,
rather than the county auditor,         is the official      responsible
for the preparation      and distribution     of county payroll.        We
agree that the      county auditor may       not perform these       func-
tions; however, we conclude that the various county officers
are by statute given the authority          to prepare and distribute
the county     payroll for      the employees     of their    respective
offices.    We believe that the county treasurer          may    properly
be delegated    the responsibility      of preparing    the payroll and
printing paychecks      in Harris County.

      It must be emphasized      at   the outset that no      constitu-
tional or statutory     provision    expressly   confers authority     on
any officer     to prepare    the county     payroll and     print    and
distribute   paychecks.     A number of statutes,      however,   assign
functions   directly   related to the county payroll to          various
officers,   including   the county auditor and county treasurer.
Both   officers    claim    that    those   payroll    functions      not
assigned by statute      should properly be       performed   by   their
respective   offices.




                                 P. 4530
Honorable    Mike   Driscoll   - Page   2      (J&l-911)




                                                                         the   ?
      The office of county auditor           was first created by
legislature   in 1905.     Acts 1905, 29th Leg., ch. 161, at 381.
The county    auditor     is   appointed     by   the   district     judges
having    'urisdiction     in the      county.      Local    Gov't     Code
584.002. 1   In a county with        a population     of two million      or
more, the county auditor must          be "elected"     by a    t,wo-thirds
vote of the district      judges present and votin          at a meeting
called for    that    purpose.       Id.    584.005(a). 1     The    county
auditor must     be of    unquestionable      character     and   intelli-
gence, thoroughly     competent     in public business      details,     and
a competent   accountant     with at least two years experience           in
accounting   and auditing.       Id. 584.006.3      The county      auditor
must file a bond conditioned         on the faithful performance          of
his official   duties, must take         the official    oath, and     must
provide a written oath         that states,       inter alia,     that    he
possesses   the prescribed     qualifications      and that he will not
be personally    interested     in a contract with the county.           Id.
584.007.4




      1.   Sections    1 and 2 of    Acts 1987, 70th Leg., ch.          57,
at 153 amended     former V.T.C.S.      articles    1645 and 1646,      now
Local    Government     Code   sections     84.002,    84.004,     84.007,
152.031, and 151.032.        Section 311.031(c)      of the    Government
Code provides     in part that the repeal of a statute by a code
does not     affect an    amendment   of   the statute      by the     same
legislature     which    enacted    the   code.      The   amendment     is
preserved    and given    effect as part      of the code      provision.
Articles    1645 and 1646     were repealed with the        simultaneous
enactment    of the Local Government      Code in 1987.      Acts    1987,
70th Leg., ch. 149, 549(l), at 1307.

      2.   Former    V.T.C.S.    article   1645a-10,  now          section
84.005, was amended       by Acts    1987, 70th Leg.,   ch.       192,   at
1466.    The amendment    is preserved    and given effect        as   part
of section     84.002.    Gov't   Code 5311.031(c).    See        note    1,
sunra.

      3.  Former V.T.C.S.    article 1648 (now section  84.006)
was amended by Acts     1987, 70th Leg., ch.  57, at 153.    The
amendment  is preserved   and given  effect as part of  section
84.006.   Gov't Code 5311.031(c).    See note 1, supra.

      4.    See   note   1, suora.




                                     P. 4531
     Honorable     Mike   Driscoll   - Page   3   (JM-911)




           The auditor is given the        duty to prescribe      the   system
     of accounting    for counties with      a population     of 190,000     or
     more.   &      §112.002(a).      In   all   counties,     he    is  given
     authority   to   adopt    and enforce     regulations     he   considers
     necessary   for the "speedy      and proper collecting,        checking,
     and accounting"     of county funds.      The regulations     cannot    be
     inconsistent    with law or rules adopted by the comptroller            of
     public accounts prescribing       the   manner for the keeping         and
     accounting   of    county   funds.     Id.    5§112.001;     112.002(b);
     112.003.    The county auditor is *en

                 general oversight      of the  books and   records
                 of a county,     district,    or   state   officer
                 authorized   or required by    law to receive    or
                 collect    money   or   other  property   that    is
                 intended   for the    use of the   county or   that
                 belongs to the county.

     Id. 5112.006(a).    He is     required also to maintain         accounts
     for such purposes,    section     112.005, and shall keep         records
     of county   financial    transactions,       section     112.007.      The
     county auditor must also "see        to the strict enforcement          of
     the law governing     county finances."        a     9112.006(b).       In
r-   counties with a population      of more than 225,000, the          county
     auditor serves as budget officer for the commissioners              court
     with the duty    of pre aring the       annual county budget.          Id.
     5111.032 and 111.033. !3

           The county    auditor is,    as his    title suggests,     given
     broad powers to audit      county finances.      The county   auditor
     has continual   access to commissioners      court orders    relating
     to   county   finances,    and   the   books,    accounts,   reports,
     vouchers,   and other records     of officers.     Local Gov't    Code
     ~115.001.    He has   a duty to    examine and investigate       these
     records, id., as     well as    reports about     the collection     of
     money for the county and the books and reports of the county



           5.   Sections    111.061 to 111.073 of the Local Government
     Code apply to      counties with a population       greater than       1.2
     million and authorize       the appointment    of a budget officer by
     the commissioners      court.    Section 4 of Acts 1987, 70th Leg.,
     ch. 57, at 155, amends section 1 of former V.T.C.S.               article
     1666b (now     sections     111.061    and 111.062)    to    reduce    the
     population     bracket      to   counties     in  excess      of 125,000
     population.     It appears, then, that a budget officer may             be
     appointed   in   all counties      with a population      greater     than
     125,000.    Gov't Code 53 11.031(c).       See note 1, suora.




                                        P. 4532
Honorable   Mike   Driscoll   - Page   4    (JM-911)




tax assessor-collector,     county   treasurer,   and   all   other
officers.   Id. 5115.002.    In   counties with a population      of
190,000 or more,    the county auditor     "shall audit,    adjust,
and settle   the   accounts   of   the   district  attorney,     the
district  clerk, and each    county or precinct   officer."      Id.
5115.004.

      The county auditor also         is given duties regarding        the
expenditure   of   county     funds.    The   auditor's     approval     of
each claim, bill, and account against            the county is a pre-
requisite   to its payment.        Id. 5113.064(a).       The   auditor's
approval may not be given         unless the claim was incurred          as
provided by law.      Id. 5113.065.       The auditor may not        audit
or approve an account for the purchase           of supplies    if it    is
not accompanied     by    a   requisition    signed    by   the   officer
ordering the     supplies     and   approved by     the    county    judge
unless the county judge's approval          is waived.     Id. 5113.901.
Furthermore,   the county treasurer        and the county     depository
may not pay    a check      or warrant,     other than     one for    jury
service, unless      it bears the       auditor's    countersignature.
Id. 5113.043.



      Article XVI,     section     44, of   the    Texas    Constitution
creates the     office   of    county    treasurer     and,    in  a   few
counties,   authorizes   its    abolition.     In   counties    in which
the office    is not    abolished,    the    county treasurer      is   an
elected officer and performs        those duties prescribed       by   the
legislature   for the office.

      The legislature     has designated    the county treasurer        as
chief custodian     of county funds.      Local Gov't Code §113.001.
He is   required     to   receive    all   money    belonging     to   the
county, id, S113.003,      and to deposit such funds in          various,
designated   accounts.     Id. 55113.004:     113.021.     He must    keep
records of     all   transactions     of   the   treasurer's      office,
including   all receipts and expenditures        of money he receives
by virtue of the office, id. 5113.002,          and a register      of all
claims presented     against the county.       Id. 5113.061.      At, each
regular term of      the commissioners     court,    the treasurer      is
required to make a detailed         report of all transactions         and
proceedings    in his office and exhibit the books and accounts
of the    office    for   the   commissioners      court's    audit    and
approval.    Id. 5114.026.      The   treasurer    also must submit       a   -\
monthly claims report        to the county     clerk.    Id,    5114.061.
The treasurer     shall examine the records of various           officers
to determine     if money belonging     to the county in the posses-
sion of the officers       has not    been accounted       for and    paid
over according     to law.    Id. L3115.901.    The treasurer      is also         ?




                                  P. 4533
             Honorable     Mike   Driscoll   - Page   5   (JM-911)



,-

             empowered  to direct the prosecution  for the recovery               of   any
             debt owed the county and to supervise   the collection               of   the
     -       debt.   J&  5113.902.
         1
                   The county     treasurer   may  charge prescribed      fees   for
             performing     certain    enumerated   services.     Id.    §5118.141-
             118.144.    In   a   county in which      the county    treasurer    is
             compensated    on a fee basis,     the legislature   has provided      a
             schedule   for   determining     the officer's    commissions.      Id.
             §153.001..

                   The  county    treasurer   is    also   given   broad    powers
             concerning   the    disbursement    of   county    funds.     Section
             113.041 of the Local Government      Code provides the      following
             in pertinent   part:

                             (a) The county   treasurer   shall   disburse
                         the monev belonainc  to   the countv and     shall
                         pav and aDDlV   the monev as    required by    law
                         and as the commissioners   court may require or
                         direct, not inconsistent   with law.

                             (b) A person    may not    spend or   withdraw
                         money from   the   county    treasury   except    by
                         a check   or  warrant    drawn    on  the    county
                         treasury,  whether or    not the money    is in    a
                         county depository   as required by law.

                             Cc) The   county   treasurer    may not   pay
                         money out of   the county    treasury without   a
                         certificate  or warrant from an officer who is
                         authorized  by law to issue the certificate    or
                         warrant.

                             Cd)  If the treasurer     doubts the     legality
                         or propriety     of an   order, decree,     certifi-
                         cate, or warrant     presented    to the   treasurer
                         for payment, the treasurer        may not make     the
                         payment.     The   treasurer     shall   report    the
                         matter   to    the   commissioners       court     for
                         the court's    consideration       and    direction.
                         (Emphasis added.)

             Local   Gov't   Code   5113.041.      The  county   treasurer     must
     r       endorse warrants,     checks, vouchers     and orders    drawn by     a
             proper authority     if there     are   sufficient   funds    in   the
             account from which it      is drawn, but may     not issue a     check
             to take up    a warrant drawn      by   a proper   authority.      Id.
             5113.042(a),   (b).
 -




                                                 P.   4534
Honorable    Mike   Driscoll    - Page   6   (JM-911)




      As we mentioned   at the outset of this opinion,        a number
of statutes    assign various     functions   associated     with    the
county payroll to     various officers,      though none     expressly
assigns   the   duty   of   preparing    the    county   payroll     and
printing  county paychecks.      Several of these statutes assign
certain   functions    to   the   county    auditor,   while     others
designate   the county treasurer      as the official     responsible
for performing   certain payroll functions.

      Chapter 155 of the Local Government         Code authorizes     and
enumerates   deductions     that may    or must    be made     from   the
compensation   of county employees.         In counties with      20,000
or more inhabitants,      county employees      may request      payroll
deductions   for   payments     to  a   credit    union,    payment    of
membership   dues   in a    labor union     or bona    fide   employees
association,   or payment     of fees     for parking    in a    county-
owned   facility.     Id.    §155.001.     The  employee's       written
request must be     submitted    to   the county    auditor,    and   the
request remains in effect until the county auditor              receives
a written notice of revocation        signed by the employee.         Id.
§155.002.

      Section 155.021 enumerates            certain payroll        deductions
that are either       authorized     or required       by other      statutes.         -,
The section      provides     that    the "county        treasurer     or,    if
another officer       is specified       by   law, that       other    officer
shall make     the    deductions       from,    or    take    other    similar
actions with regard to, the compensation               of county employees
as required"     by the enumerated       statutes.       Of these statutes,
only two expressly        designate     the treasurer        as the    officer
to make    the    authorized      or    required      payroll     deductions.
V.T.C.S.   art.    69%,      59    (social    security       contributions);
Title llOB,      355.403(e)     (retirement       system     contributions).
One   statute     designates      the    "disbursing       officer     of   the
county."    V.T.C.S.      art.     6252-3,     §1    (purchase     of   United
States savings bonds).          Another     speaks of the        "appropriate
officer designated       by the     county."      V.T.C.S.    art.    6252-313,
593, 3A    (deferred      compensation      plans).       Article     6229a-5,
V.T.C.S.,   which authorizes         deductions      for   the purchase       of
annuities     or    investment,      is   silent      as   to    the   officer
responsible    for making       payroll deductions.           A statute     not
listed in section 155.021,           V.T.C.S.     article 6252-3c,        which
authorizes    the establishment       of a "cafeteria        plan"    benefits
program   for county employees,         is also silent on this issue.
                                                                                   ?
      Chapter 156     of the   Local Government       Code   authorizes
counties    to   establish    and   operate    an   electronic     funds
transfer   system to transfer county officers'         and   employees'
net   pay   and   all   forms    of   compensation,     payments,      or
reimbursement    to their    accounts    in financial     institutions.




                                   P. 4535
    Honorable     Mike   Driscoll   - Page   7   (JM-911)




    Id. §156.001.   The  county auditor, or   the chief   financial
    officer in counties without   an auditor,  is responsible    for
P   establishing  "the procedures for administering   the  system."
    Id. 5156.003.

          Subchapter   D of chapter      152 of   the Local      Government
    Code concerns     the withholding     of compensation      of    elected
    county officers who elect not        to be paid.     Section     152.051
    defines    "county    payroll   officer"    for   the   purposes       of
    administering    this   subchapter    as "the    county    auditor     or
    other appropriate      county officer    who issues     paychecks      to
    county personnel."       Id. 5152.051.      Subchapter    D,   however,
    was enacted in response to       the efforts of a single         elected
    officer:

                Mr. Bill Finck, the County Treasurer        in Bexar
                County, ran on the platform      of abolishing     the
                office.   Mr. Finck    does not    want to     accept
                his paychecks,    but   the County     Auditor     has
                stated   that   every   elected    official      must
                accept [his] paycheck.      There is presently      no
                law on   the books    which permits     an   elected
                county official     to refuse    compensation      for
                his services.    H.B. 1991 has been       introduced
                to alleviate   this situation.

    Bill Analysis   to H.B.    No. 1991,    68th Leg.,    prepared     for
    House Comm. on County Affairs     (1983).   The office of      county
    treasurer  in Bexar   County was    eventually   abolished.      Tex.
    Const. art. XVI, 944(b).     Subchapter   D, therefore,    should be
    considered  in that light.    Gov't Code 5311.023(3)       (legisla-
    tive history may be consulted     when construing   a statute).

          Finally, we    note that     section    151.903 of    the   Local
    Government    Code     establishes    procedures     regarding      the
    preparation   and reporting    of payroll information      in counties
    with a population    of 500,000 or more.       The county auditor is
    given seemingly    broad powers     regarding   the county    payroll,
    but, as we shall discuss later in this opinion, they are             no
    broader than those already possessed        by the auditor.

                                         II.

          The confusion    surrounding   the    issue of    which   county
    official   is responsible    for the payroll      is reflected    in   a
    series of inconsistent     opinions   issued by this office over a
    period of 40 years.     We will now examine these opinions           and
    reevaluate   some of   their conclusions      regarding   the   proper
    roles of    different   county    officers with     respect    to    the
    county payroll and delivery and preparation         of warrants.




                                       P. 4536
Honorable     Mike   Driscoll   - Page   8   (JM-911)




      Attorney    General    Opinion O-6624        (1945) concerned       the
duty of    the county      auditor with      respect to      the   approval
of warrants     for   the   payment    of a county         employee.      The
opinion concluded      that    the auditor's     chief     duties were      to
ascertain    whether the employee was engaged in performing               the
duties authorized       by his    contract of       employment    with    the
commissioners     court    and whether      such    duties were      in   the
discharge    of "county business."          If the auditor       d,etermined
that the employee was not         discharging     the duties for        which
he was employed,     the auditor's      sole remedy was to refuse           to
countersign    the warrants     drawn    on the county treasurer           for
the purpose      of  paying the      employee.       See also     Smith     v.
MCCOY,   533 S.W.2d    457    (Tex. Civ. App.       - Dallas    1976,    writ
dism'd w.0.j.).       The opinion did not hold, nor did it imply,
that the auditor       bore m       duty respecting        the payment      of
county employees     beyond the approval and countersignature               of
warrants    issued    to county     employees     in payment      of    their
services.

      Other opinions employed      similar reasoning.      In Attorney
General Opinion O-5049      (1943), the question was whether          the
commissioners   court    could adopt     an order    authorizing      the
county auditor,     inter    alia,   to my     county    and   precinct
officials   and employees.     The   question was answered       in   the
negative because the county auditor         was not subject to        the
orders of the    commissioners     court and    because the      commis-
sioners court    could    not delegate     its   duty to     audit    and
settle accounts   against the county and direct their payment.
See also Local Gov't      Code s115.021    (formerly V.T.C.S.        art.
2351(10)).

      Attorney General     Opinion V-487     (1948) concluded     that
the county auditor could not collect and pay group insurance
premiums   for county employees.       The opinion emphasized      the
absence of language      granting  such power    to the auditor      in
the statute authorizing       the group   plan.   Attorney    General
Opinion V-711     (1948), considering     another group    insurance
plan authorized    by statute, reached the same conclusion:

            [Nleither the collection       nor the deduction     of
            the contributions       from the    salaries    of the
            county employees     constitutes    any function     of
            the County Auditor.      . . . The collection       and
            deduction   should be     performed    by the   proper
            county officer who issues         the checks on     the
            County    Treasurer     for   the   payment    of   the
            salaries of     the   employees    included    in   the
            wow      insurance      plan. . . .      The    County
            Auditor,   of   course    would    necessarily    have               -,
            to countersign      the   checks    of   the    county




                                   P. 4537
    Honorable    Mike   Driscoll     - Page   9    (JM-911)




                officer under      the   . . . provisions     of Article
                1656a. . . .

    Attorney    General    Opinion    V-711    (1948)   at   2.    Attorney
    General Opinion V-1387        (1952) concluded    from  a reading      of
    the version of V.T.C.S.      article 695g then in effect that          it
    was the duty of the       county treasurer    to assess and     collect
    county    employees'    social    security    contributions     and    to
    transmit   such   amounts to     the   State Department     of    Public
    Welfare.6    The county auditor's      duty was to "check, compare,
    and   audit"    the   county    treasurer's    computations     and    to
    certify the results to proper officials.

          Attorney    General    Opinion     WW-1107     (1961)    considered
    whether the county auditor could make payroll deductions                for
    county employees     to be paid     over to a credit union.          After
    quoting a portion of        former article       1656a, V.T.C.S.       (now
    section 113.047 of the Local Government           Code), the     attorney
    general advised that the        county treasurer      had authority      to
    disburse   funds    in the payment       of   salaries     and expenses.
    This, despite the      fact that the      statute provided      that    the
    officer who     collected   the    funds    disbursed    in payment      of
    salaries    "may   draw    checks    on   the    county    treasurer     to
    disburse   said   funds."     Attorney      General    Opinion    ww-1107
    (1961) at    2.   Attorney    General     Opinion V-711       (1948)    was
    affirmed,   but because no      statute granted the        commissioners
    court the    express    power    to make     payroll    deductions      for
    credit union     payments,   the    commissioners     court    could    not
    delegate   such authority    to either the county auditor or            the
    county treasurer.

          In Attorney General Opinion C-218 (1964) the issue      was
    whether the "Tabulating   Department" of Jefferson    County fell
    under the "jurisdiction"    of the county   auditor.    At  stake
    was control of the county's data processing    equipment,    with
    which a number of functions were performed,     including

                processins   oavrolls.         orintina    checks,    re-
                gisters and   various         reports:    cash   claims,
                warrants,   registers          and   reports,     budget



          6.  The Employees   Retirement    System is now the       state
-   agency designated   to administer    the program.   V.T.C.S.     art.
    695g, 551(d), 2.    The county treasurer     remains the    official
    officer responsible     for assessing,    collecting,   and   trans-
    mitting employees'   contributions.     Id. 59; Local Gov't      Code
    5155.021(l).




                                         P. 4538
Honorable     Mike   Driscoll   - Page   10   (JM-911)
                                                                                  :


                                                                                  -_

            appropriations,     expenditures,   encumbrances,
            controls   and reports.    (Emphasis added.)

Attorney   General Opinion C-218       (1964) at 1. A     substantial
part of    the   department's     work   related    to  the   county's
accounting   system and the forms used by county and          precinct
officers   in the collection     and disbursement    of county funds.
After quoting parts of former V.T.C.S.         articles  1651,    1654,
1656, 1656a, 1666 and       1666a (now codified throughout        Local
Government   Code chapters     111, 112,    113, 114, and 115),     the
opinion abruptly     concluded   that

            the   County    Auditor    has  jurisdiction     and
            control of    the tabulating     department    which
            performs    the    functions   described    in  your
            statement   of facts.

Attorney   General    Opinion C-218    (1964) at   4.   The   opinion
provided    no   analysis    of  the   various   functions    of   the
department,    but   simply   declared   that all    fell   into   the
general area of accounting      and were under the control of the
county auditor.

      Attorney    General Opinion M-299          (1968) also arose as         a
result of the      consolidation     of    various governmental         func-
tions into     a single     computer system        which was     under     the
county auditor's      control.     The relevant question was whether
the commissioners      court could      adopt an order directing           the
county auditor to issue checks            or warrants    for the      payment
of salaries     and    expenses     for all     district,      county,     and
precinct   offices.     Relying on that part of article 1656a now
codified   as   Local Government        Code section       113.047,     which
authorized    officers to draw       checks on the county          treasurer
to pay    salaries and      expenses,      and subsections        19(i)    and
19(l) of    former article       3912e      (now sections      154.042     and
154.043    of   the    Local    Government      Code).    which       created
officers'   salary     funds    and authorized        bif cers     to    issue
warrants   against     the fund     to    pay salaries       the    attorney
general    concluded      that   district,       county,    and     precinct
officers    were    authorized      to    "issue"     or   "draw"      county
"warrants"    for   the    payment     of    deputies'     and    employees'
salaries.     Attorney     General Opinion        M-299 ( 1968)     at    7-8.
But the opinion also concluded          that the comm .issioners        court
could direct the       auditor to "prepare"         county and      district
payroll warrants.       Id. at 8.       The attorney general did           not
explain    the    difference     between      "issuing"     or     "drawing"
warrants   for    salaries     and    "preparing"      payroll     warrants,
though he     obviously    perceived      a difference.        Instead,     he
simply concluded      that county officers would not be             deprived
                                                                                      -.
of their authority      to issue warrants        for salaries.      Attorney




                                   P. 4539
      Honorable   Mike   Driscoll   - Page   11   (JM-911)




      General Opinion   C-218 (1964)   was cited as   authority    for
      allowing the auditor   to process county  payrolls   and  print
r‘-   county warrants  and checks.

            In Attorney     General Opinion M-657 (1970), the            question
      was which     county official       was responsible       for   delivering
      county warrants      and county jury checks to the payee.            Former
      article 2554,      V.T.C.S.,    now    section 113.042      of the     Local
      Government    Code, described       the county     treasurer's     duty   to
      endorse     checks    and   warrants     presented     to   him.     Former
      article 1632, V.T.C.S.,       required the treasurer        to obtain     an
      acknowledgment     of the receipt of amounts paid from the party
      receiving    payment     from the    county.     See   Local Gov't      Code
      5113.062.     Former article 1709,        V.T.C.S.,    provided    in part
      that    the   county    treasurer       shall    "receive     all    moneys
      belonging    to the county" and "pay and apply the same."                See
      Local Gov't Code       §5113.003,     113.041(a).     In   view of     these
      statutes,    the   attorney general        concluded   that    the   county
      treasurer    was the proper official to make delivery             of county
      warrants    to the    payee.    See al       Attorney General       Opinion
      O-4462    (1942) (county     treasurershall        endorse and      deliver
      warrants    drawn by proper authority        to the payee).

            In Attorney   General Opinion M-965 (1971), the issue was
      whether the    county clerk      could    "continue   the   writing     of
      payroll checks" and "continue to write checks in payment                of
      any and all bills" approved by the commissioners            court.     The
      attorney    general    determined     that    amendments    to     former
      article 1709, V.T.C.S.,       relating to the duties of the county
      treasurer   did not diminish the        duties of the county       clerk.
      Thus, under     the provisions      of articles    1656a,    3912e,    and
      3912e-4, the     clerk could     continue     to issue    warrants     for
      salary and expenses      "incurred   in   the conduct of his       office
       (emphasis added)."     Attorney    General Opinion M-965 (1971) at
      4.   He concluded    that the amendments      merely enlarged     article
      1709 to include language from statutes governing            the    duties
      of other officers and that         there was no legislative        intent
      to repeal those other statutes.

            Attorney   General    Opinion H-977      (1977) held    that   the
      requisition    requirement    of    former article     1661,   V.T.C.S.
      (now section 113.901 of the Local Government           Code), did    not
      apply to claims      for, inter alia,      labor and services.       The
      opinion quoted Nacoadoches       County v. Jinkins,     140 S.W.2d 901
P     (Tex. Civ. App.      - Beaumont     1940, writ    ref'd), which     held
      that articles      1660 and    1661   did not    apply to    claims   by
      county    officers     for  the   recovery    of   their    statutorily
      established    salaries.




                                        p. 4540
                                                                                        ,



Honorable    Mike   Driscoll   - Page   12    (JM-911)
                                                                                  .’




                                                                                  --.




      Attorney     General    Opinion    H-1242     (1978)      considered
whether the     commissioners      court    of   Harris     County    could
assign the     preparation     of   warrants     of   a    flood    control
district   to either     the county     clerk or     a data     processing
center created to       serve the commissioners         court and     other
county    officers.      The   opinion     consisted     of   two     terse
paragraphs    which said that the commissioners          court could not
assign the preparation       of county warrants      to any officer       or
department,    since control of the preparation          and    processing
of warrants     was vested     in the    county auditor,        and   cited
former V.T.C.S.     articles     1656a and     (oddly) 1650.        Without
explanation,    and apparently     without     regard to the      opinions
that preceded      it,   the attorney      general    approved      greater
exertion of control        by the county     auditor over the        county
payroll;   control that,      because of     advances    in   technology,
the legislature     could not     have anticipated      when it     created
the office of county auditor.

      Attorney    General      Opinion     JM-192     (1984)     appears     to
retreat    from    some    of   the    broader     implications       of   the
opinions   just   discussed.       In   that    opinion, we       held    that
commissioners    court     approval     of salaries       paid    to   county
employees   is required before salary warrants             may be     issued.
Prior approval      of   the    county auditor        is   not    necessary,
although   the   auditor's      countersignature       is    required.       We
advised that the       auditor's    broad authority        to "see to      the
strict enforcement      of    the law     governing    county     finances,"
and the power     to disapprove       certain     claims not      contracted
for according    to law, did not empower the auditor to require
his prior    approval    of    salary payments..         Attorney     General
Opinion JM-192       (1984) at     4.   We    emphasized     the   auditor's
ministerial    duty to countersign        warrants    for salaries       where
the claimants    had a     right to such payments           as a matter      of
law, but we     noted his      authority    to    refuse to      countersign
such warrants    where the claimants        did not as a matter of law
have a right to the        payments.      Comoare Jackson v.         Leonard,
578 S.W.2d 879 (Tex. Civ. App. - Houston              [14th Dist.]       1979,
writ ref'd n.r.e.)       and Nacoadoches       Countv     v. Jinkins,       140
S.W.2d 901 (Tex. Civ. App. - Beaumont             1940, writ ref'd) with
Smith v.    McCoy, 533      S.W.2d 457       (Tex. Civ.      App. -    Dallas
1976, writ     dism'd    w.o.j.)      and   Attorney      General     Opinion
O-6624   (1945).    We also provided a brief description              of   the
procedures    followed when paying county employees:
                                                                                  ?
            A commissioners   court is required to 'audit
         and settle all accounts against the county and
         direct their payment.'    V.T.C.S.  art. 2351(10).
         All payments   must   comply with    the    county's
         budget with   regard   to those    salaries    which                         -
         have been approved    for   county officials      and



                                   p. 4541
      Honorable     Mike   Driscoll   - Page   13   (JM-911)




              employees.   V.T.C.S.    art. 689a-11; art. 1666a.
              The funds are actually disbursed       by the county
              treasurer  under    the   direction     of  the   com-
              missioners  court.      Article   1709a,    V.T.C.S.,
              generally  requires     that all    county money    be
              deposited  with the county treasurer       or in   the
              county depository    and that

                     [n]o moneys shall be expended or     with-
                     drawn from the    county treasury  except
                     by checks   or   warrants  drawn  on   the
                     county treasury.    . . .

                  V.T.C.S.   art. 1709a, §4.      It is the duty     of
                  the county treasurer,      upon  the   presentation
                  of a warrant drawn     by the proper     authority,
                  to endorse said    warrant for      the benefit    of
                  the named payee if there are sufficient         funds
                  available.     Id.   §4 (d) .   Thus,   the   proper
                  authority   in the payment     of salaries   is the
                  commissioners   court,    whose   order    directing
                  payment, i.e. the warrant,      is attested by the
                  county clerk.    Id. 44(e).

      Later in the opinion, we noted that "monthly payroll reports
      prepared  by the respective     county officials     are turned in to
      the commissioners     court    for   its approval     and    its   order
      issuing salary    warrants,"    Attorney    General Opinion       JM-192
      (1984) at   4,   citing    former    V.T.C.S.    article     1637    (now
      section 115.022 of the Local Government         Code).    We   observed
      that Attorney General      Opinion O-5049     (1943)   had held     that
      this responsibility     could not     be delegated     to the     county
      auditor.

            The most recent opinion bearing on the responsibilities
      of county   officers     with    respect    to   payroll   matters     is
      Attorney  General Opinion JM-585        (1986).   There we were asked
      whether the county auditor or         the county treasurer     was   the
      county payroll disbursing        officer for     purposes  of   section
      55.403 of Title llOB, V.T.C.S.,          in counties with a     popula-
      tion of 10,000 or     more.   We concluded      that, based upon      the
      plain language of     section 55.403(e),        the county    treasurer
      was the   payroll disbursing       officer     in those   counties     in
      which the office     has not been      abolished.     The language     of
-     former articles   1709 and 1709a       also made it clear that        the
      county treasurer,    the    officer given      the responsibility      to
      disburse  county   funds, was      the    proper officer    to    deduct
      member contributions     to a    retirement    system established      by
      Title 1lOB.    The result     of Attorney General Opinion         JM-585
/--




                                         P. 4542
Honorable     Mike   Driscoll   - Page   14   (JM-911)




is now codified       in section     155.021(5)    of the   Local       Govern-
ment Code.

                                     III.

      Three sections     of the   Local   Government    Code   have    a
direct bearing on the duty of county officers to prepare and
distribute  the payroll for      Harris County.     Section    151.903
affects counties with a population        of 500,000 or more.         It
requires district     and   county officers     to   file    personnel
records for each     deputy, assistant,    or   person employed       or
appointed  by the officer if      the person is paid with        county
funds or funds of a flood control district         located    entirely
in the county.    The statute also provides      for the filing       of
payroll:

                (c) Each     county    officer     or   department
            head under     whom   the    persons    described      by
            Subsection    (a) are     employed     shall    file    a
            signed and     sworn   payroll at      the    close    of
            the month, or     more    often if     authorized      or
            required by     law.     The   payroll     must    state
            the name    of   each    employee    and    show     the
            employee's   dates and hours       of work, rate       of
            compensation,    and amount due for the         current
            pay period.      In the    case of     engineers      and
            employees   in the field engaged in road, flood
            control,    or   construction      work,    a     signed
            report must accompany      the payroll stating the
            nature,    dates,    and   location     of    the   work
            performed   and containing       any other     informa-
            tion that may      be needed     for statistical       or
            accounting   purposes.

Local    Gov't   Code    §151.903(c).       The   statute    does     not
designate    an office    or officer    to receive     or process     the
payroll,   but   it provides     that   the county     auditor    "shall
prescribe    the   forms   and   systems,   including     a system     of
personnel    and equipment    records, necessary     to carry out this
section."     Id. 5151.903(d).      The   auditor also “may      enforce
any rules adopted under this section."           Id.   The auditor may
withhold   payment    of salaries     in the    event that     a  person
fails to     file records     or information     required under      this
section.    Id.

      Section 151.903 would appear to vest the county auditor
with broad authority   over   county payroll procedures.      How-
ever, we believe that this section must be read in       conjunc-
tion   with   sections  113.047    and  154.043  of  the     Local
Government   Code.




                                    P. 4543
      Honorable     Mike   Driscoll   - Page   15   (JM-911)




           Section 113.047 authorizes  the disbursement             of salaries
      in counties  of 190,000 or more and provides  the            following:

                 After the    deposit    of funds   in a   county
              depository,  an   officer    in a county    with    a
              population  of 190,000 or more mav draw      checks
              on the county treasurer     to disburse the    funds
              as payment  for a salary or expenses authorized
              by law or in payment      to the county or to    the
              person to   whom the    funds belong.     (Emphasis
              added.)

      Section 154.043 establishes    procedures   for   the payment  of
      employee salaries and   provides the    following   in pertinent
      part:

                      (a) A district,       county,    or     precinct
                  officer  may   issue    a warrant      against    the
                  salary fund to pay the salary of an         employee
                  whose salary   may   be   paid    from   the    fund.
                  (Emphasis added.)

            Statutes that relate to the same general subject matter
ic‘
      are said     to be   in nari    materia and     are to    be   construed
      together   in arriving    at the intention        of the    legislature.
      Calvert v. Fort      Worth National     Bank,    356 S.W.Zd 918      (Tex.
      1962).    In   the event    of any    conflict,    the   more    specific
      statute prevails     over the more general provision.          Aleios v.
      State, 555     S.W.Zd 444     (Tex. Crim.     APP. 1972).      See    also
      Gov't    Code   5311.026.      We   perceive    no   conflict     between
      section 151.903 and sections 113.047 and 154.043.

            In our    opinion,     section     151.903 does      no    more    than
      acknowledge   the    authority    of   the county      auditor to       "pre-
      scribe the    system     of accounting       for   the county"       and   to
      adopt and enforce      regulations     for    the "speedy      and    proper
      collecting,     checking,     and    accounting"      of   county     funds.
      Local Gov't     Code 5112.002       (counties with       a population      of
      190,000 and more).       Section     112.002 is derived from          former
      V.T.C.S.   article 1656a, as is section 113.047.              Furthermore,
      section 151.903 does not expressly            purport to place in         the
      auditor's   hands    the duty     of preparing      payroll or       distri-
      buting paychecks,     nor do we      believe that it can         reasonably
      be construed    to do so.     The auditor's      authority    to   withhold
  -   payment of salaries      for failure to file the required            records
      or information    merely reflects the auditor's           power to refuse
      to countersign    salary warrants where no right to receive the
      salary has been      established     as a matter of law.           Attorney
      General Opinion JM-192       (1984).     Because sections      113.047 and
 P    154.043 specifically       provide     that    an    officer     may    "draw




                                         P. 4544
                                                                               ,

Honorable   Mike   Driscoll   - Page    16   (JM-911)




checksI' and ltissue" warrants         for the   payment   of    salaries,
they must be given effect.

      Additionally,     section 154.044(a)        of the Local     Govern-
ment code states       that each district,        county, and     precinct
officer shall file       a report     with the     county auditor      that
shows, inter      alia, "the     amount paid      during the    preceding
month to     each employee      of   the officer      and the   name    and
position   of the employee."         We believe that this       provision
contemplates     a situation    in which an officer other than          the
county auditor      is   responsible       for   preparing    the   county
payroll.     If   the auditor      were authorized      to perform     this
function,    it would serve no       purpose to require officers         to
submit the information        required by      section 154.044,       since
the auditor presumably       would     already possess such       informa-
tion.    Accordingly,     we believe      that the     Local   Government
Code provisions     applicable     to Harris County do not grant the
county auditor the       authority     either to    prepare the     county
payroll or to print and distribute           paychecks.

                                     IV.

      Article XVI,     section    44, of    the   Texas    Constitution
assigns no duties      to the office     of county treasurer.         The
legislature    is given     the   primary duty     to   prescribe     the
duties, which     it has    done in    intricate   detail.      However,
this opinion would be incomplete         if we did not discuss        the
greater constitutional      implications    of this issue.       Consti-
tutional   themes underlie      the question at     hand and     suggest
that the county treasurer        should exercise those        functions,
such    as  the   preparation     of   the   county    payroll,     which
logically   are a part of the functions       of that constitutional
office.    An answer to your question thus is incomplete            with-
out reflection    on the themes suggested       by the Constitution.

      Under our republican       form   of government,     the power      to
govern is vested in the people; the duty to govern is vested
in offices created under the Constitution            and discharged       by
officers   responsible     to the people. A constitutional          office
is no    empty honor     or mere    preferment.      Rather,     it is    an
essential    element    of   republican     government.       See,    e.a.,
Wiecek,   "Republican    Form of    Government,"     3 Encvclopedia       of
the American     Constitution    1558 (1986).     Each    constitutional
office is     essential     to the    whole    scheme of     freedom    and
sovereignty    established    by the    Constitution     because   it   has
at its core certain      irreducible     functions which make up        the
threads of the office.        In turn, each constitutional          office
is a part of the whole fabric of republican            government.




                                  P. 4545
    Honorable   Mike   Driscoll   - Page   17   (JM-911)




          The core functions     of  a constitutional     office may     not
    be taken away, or shared with another office, save by a con-
P                                 The officer     holding the    constitu-
    stitutional   amendment.
    tional office thus      must be permitted      to perform any      tasks
    properly   emanating   from the core functions      of the   office --
    functions   that   are   historically   or    logically    within    the
    penumbra   of power attached     to the office      as an element      of
    republican   government.     See Ex narte Hushes, 129 S.W.2d          270
     (Tex. 1939).     Our   discussion   of   the   role of    the    county
    treasurer,   above, indicates that      the core functions      of   the
    office should include the preparation         of the county payroll.

          To reiterate,    the treasurer    is the chief custodian         of
    county funds,     Local   Gov't   Code  5113.001,     and   has    broad
    powers concerning     the  disbursement    of those    funds, id.      at
    5113.041,    including    the   sole   power    to   "disburse     money
    belonging  to the county"      and to pay    the county's money       s
    directed bv the commissioner's        court,  id.    The   preparation
    of the county payroll logically       falls within the penumbra        of
    the ministerial     duties created     by these     functions   at   the
    core of the constitutional       office of county treasurer.           In
    the main, the     best reasoned prior      opinions   of this    office
    cited above fully support this conclusion.

          Under our system of       county government,      there exists      a
    delicate   system of checks and balances to protect the              funds
    of the county.       The county auditor       occupies a     significant
    role in this system.       Smith   v. MCCOY, 533 S.W.2d 457          (Tex.
    Civ. App.    - Dallas      1976, writ     dism'd    w.0.j.).      As   our
    discussion   of   the duties     of the    office demonstrated,        the
    county auditor      is given    broad    powers    to   oversee    county
    finances and     prescribe   systems     for the    accountability       of
    county funds.     The effectiveness      of this checks and balances
    system depends,     in large part, upon the independence          of   the
    auditor    from   the   influence     and    control    of   the    county
    commissioners    court.     Weaver    v.   Commissioners'       Court    of
    Nacoadoches     Countv,    146   S.W.2d     170   (Tex.    1941).      The
    independence    of the county auditor is assured by placing the
    power of    appointment     and dismissal       in the hands      of   the
    district   judges rather than       the commissioners      court.     Id.;
    Local Gov't Code 584.002.        That independence      is   compromised
    when the auditor disburses       county     funds in the form of        pay
    checks.

P         In the absence of express legislative      authorization     for
    the auditor   to   prepare the    county   payroll and     have   the
    checks printed and distributed,     we are hesitant to      conclude
    that he may perform     these responsibilities.     The    auditor's
    primary responsibility     is to review the books of others       and
    to see to   the   enforcement    of the   laws   governing     county




                                      P. 4546
Honorable   Mike   Driscoll   - Page     18   (JM-911)




finances.   Local Gov't Code     5112.006.    Unless the    legisla-
ture expressly   permits the auditor to perform administrative
work that is subject to audit, we would assume he would           not
be in a position     to audit his own    work.    See aenerallv    22
T.A.C. 95501.11,    501.15.

      Thus, the county       auditor, as we    have detailed      above,
may have    critical     duties to    perform   with regard     to    the
disbursement    of county funds, even in the area of          payrolls.
At the very least, the        auditor has an over-arching       assign-
ment to see that county funds are expended          according   to    law
and under a     system that allows       for accountability.       These
are critical    elements    in the   scheme of checks and      balances
imposed in general by the constitution,          and in particular     by
the numerous    statutes     we have cited.     Most assuredly,       the
auditor may not preempt        a power which     should be among      the
core functions    of an officer of full constitutional         dignity.

                                    V.

      Based on the foregoing        discussion,    we believe that       the
duty of preparing       payroll and drawing paychecks        falls on the
various county officers.         See Attorney     General Opinion      Nos.
M-965  (1971); V-711        (1948).   The act     of "drawing"    a check
does not, however,       require    the officer to actually        perform
the clerical tasks of printing          and writing in the figures on
the face of the check.         Rather, the officer may "cause it to
be written,"     i.e
                 A,      may delegate this task.        We believe     that
both logic      and constitutional       law   dictate that      the    only
other   official      to   whom   .this function       properly    may    be
delegated    is the     county treasurer,     since    the treasurer      is
authorized    tothe"p~~mm~~~io~~~~y"      county    money    as   required
by law    or                             court.     Local    Gov't     Code
5113.041(a).        See   also   Attorney     General    Opinion     JM-585
(1986) (defining "disburse"         as "pay or expend").

      The commissioners     court, pursuant    to its authority       to
"audit and settle      accounts against the     county" and      direct
their payment, must give its prior approval before            warrants
in payment of salary may be issued.         Id. §115.021;     Attorney
General Opinion     JM-192     (1984).   The   county    auditor     may
prescribe.the     forms and     systems necessary    to process      the
county payroll.     Local Gov't Code 5151.903(d).      The auditor's
countersignature    is still required on salary warrants.           Id.
5113.043.    Attorney   General Opinion JM-192     (1984).

      It is suggested  that   county officers   in Harris    County
are no longer authorized    to issue warrants   for salaries.     We
are informed    that the   commissioners  court   has   eliminated
officers'  salary funds pursuant     to former V.T.C.S.     article




                                  p. 4547
L

     Honorable   Mike   Driscoll   - Page   19    (JM-911)
*.




     3912e, section       19(i)     (now Local   Government     Code   section
     154.007).      Under this provision,      the commissioners     court may
     order that money        that would otherwise      be deposited    in   the
     salary fund be deposited         in the general fund of the       county.
     It is    argued that      this action,     coupled with     the   commis-
     sioners court       power to     fix salaries    of county    employees,
     Local    Government      Code    section   152.011,    deprives     county
     officers of the authority         to issue salary warrants.       This is
     not the case, however.          The use   of the general    fund to    pay
     salaries    in   no way     diminishes    an officer's     authority     to
     issue salary       warrants.     Indeed,   section 154.007(b)       states
     that in a county where the          general fund is made the        source
     of payment      of salaries,      a reference    in chapter     154 to    a
     salary fund means the general fund.           Consequently,     -officers
     in Harris County        are authorized     to issue    warrants   on    the
     general fund in payment of employees'           salaries.

           In view of      our answer     to your    question,   we   conclude
     that Attorney     General     Opinion Nos. M-299       (1968) and    C-218
     (1964) are in error        to the extent     that they conclude       that
     the county auditor may prepare the county payroll and                print
     paychecks,   and    they are     hereby overruled.        To the   extent
     that Attorney     General     Opinion H-1242     (1978) suggests      that
     the county auditor of Harris County may prepare warrants               for
     the payment of salaries of county officers and employees,                it
     is modified    to   conform with this       opinion.     The holding     of
     Attorney   General Opinion JM-192        (1984), that prior      approval
     of the commissioners       court, but     not of the county      auditor,
     is required before salary warrants may be issued, involved a
     county with a population        less than 190,000.       See Local Gov't
     Code §§154.021-154.026        (salary provisions     applicable   to such
     counties).     To the extent that it suggests that the            commis-
     sioners court, rather than          county officers,     is  responsible
     for issuing salary        warrants   in counties     with a population
     greater than 190,000, it should not be followed.

           Attorney    General Opinion Nos.        M-657 (1970) and       O-4462
     (1942) I  which   concluded      that  the  county    treasurer   was    the
     proper official     to make delivery        of county warrants      to   the
     payee,   are  not    in  conflict    with   this  opinion   because     they
     concern the treasurer's         aeneral    authority   to pay and      apply
     county funds,      rather than       the specific     duty to    draw    and
     issue checks or       warrants    in payment     of salaries.       Comuare
     Attorney   General      Opinion    M-965 (1971).       Attorney     General
P    Opinion VW-1107      (1961), which held that the county treasurer
     has authority     to disburse     funds    in payment of salaries,         is
     not in conflict       with this opinion,        since the authority        to
     disburse   funds    does     not    include the    authority     to    issue
     checks or warrants       for    salaries.    Attorney   General     Opinion
-
     JM-585   (1986), which dealt with specific statutory              language




                                       p. 4548
Honorable   Mike   Driscoll    - Page     20     (JM-911)




concerning payroll deductions,  is necessarily               limited to its
facts, and is therefore  not in conflict with               this opinion.

      To summarize,   we   conclude that the      duty of    preparing
county payroll     and drawing    and issuing     paychecks     belongs
to county officers      in Harris     County.     Local    Gov't    Code
§5113.047;   151.903;    154.043; M      Attorney    General    Opinion
Nos. M-965 (1971); V-711       (1948).   The county treasurer        may
properly   be delegated   such   duties.    The county auditor       has
no authority   to perform these specific       functions.

                              SUMMARY

              The duty of preparing      county payroll     and
        drawing and issuing       paychecks   belongs to    the
        various     county   officers    in Harris     County.
        Local Gov't Code 55113.047;       151.903;    154.043.
        The county treasurer      may properly    be delegated
        such    duties.     The   county    auditor   has    no
        authority    to perform these specific      functions.




                                               JIM      MATTOX
                                               Attorney  General   of Texas

MARY KELLER
First Assistant    Attorney     General

LOU MCCREARY
Executive   Assistant     Attorney     General

JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney          General

RICK GILPIN
Chairman,  Opinion      Committee

Prepared by Steve Aragon and
Don Buston
Assistant  Attorneys General




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