            THE       ATTORSEY       GESERAL
                         OF TEXAS


                         December 27, 1990


Honorable Terry D. McEachern        Opinion No. JM-1275
District Attorney
Hale County Courthouse              Re: Authority of a county
Plainview, Texas 79072              auditor to prescribe a com-
                                    puterized accounting system
                                    for elected county officials
                                    (RQ-2058)
Dear Mr; McEachern:
     You ask whether a county auditor is authorized to pre-
scribe a particular computerized accounting system, includ-
ing hardware and software, for the accounts of all elected
county officials. You suggest that a county auditor serving
a county with a population of less than 190,000 may impose
such a requirement pursuant to section 112.001 of the Local
Government Code.1
     The facts presented to us by your office and the office
of the county tax assessor-collector are as follows.     The
county has begun  installation of a  central computer  main-
frame to handle all computer operations of the district,
county and commissioners courts, and the offices of the
district attorney, county auditor, county clerk, district
clerk, juvenile probation department, and adult probation
department. The office of the county tax assessor-collector
has a separate system. You ask whether a county auditor can
impose a computer accounting system upon the accounts of
elected offices of county government, especially with regard
to a county tax assessor.
     Section 112.001 of the    Local Government Code      provides
the following:
        In a county with a population of less than
        190,000, the county auditor may adopt and
        enforce regulations, not inconsistent with


     1. You advise us that Hale County has a population         of
less than 190,000.



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Honorable Terry D. McEachern - Page 2   (JM-1275)



        law or with a rule adopted [by the Comptrol-
        ler of    Public Accounts]    under   Section
        112.003, that the auditor considers necessary
        for the speedy and proper collecting, check-
        iw , and accounting of the revenues and other
        funds and fees that belong to the county.
You note that this provision allows the implementation of
the various duties of the county auditor to audit and
oversee county finances, particularly the duties imposed by,
sections 112.006, 115.001, and 115.002 of the Local Govern-
ment Code.
     Section 112.001 must be contrasted, however, with
section 112.002 of the Local Government Code, which de-
scribes the authority of the county auditor in a county with
a population of 190,000 or more.      The latter provision
expressly authorizes the auditor in the larger counties to
adopt the system of accounting for the county.       Section
112.001 contains no comparable grant of authority.
     In Attorney General Opinion JM-1099 (1989) we concluded
that auditors in counties with fewer than 190,000 inhabi-
tants may require county officers to supply basic infor-
mation that is necessary' to the accomplishment of the
auditor's statutory duties.   Auditors in all counties are
authorized to prescribe financial procedures and internal
accounting controls for their counties.       s!e   Attorney
General Opinions M-579 (1970); C-276 (1964). These opinions,
which dealt primarily with procedures concerning the custody
and control of county funds, demonstrate that the county
auditor is entitled to ask for necessary information in a
form that reasonably accommodates the auditor's needs, so
long as it is not inconsistent with a rule or form adopted
by the Comptroller of Public Accounts pursuant to section
112.003.   a    Attorney General Opinion JM-1099 (1989).
Furthermore, the rules adopted by the auditor should not
unreasonably infringe on the duties of other county offi-
cers.
     If the auditor has determined that information regard-
ing county finances can best be transmitted and processed
through the use of particular computer programming, we
believe other county offices that have compatible computer
equipment are under a duty to comply with that determination
by installing compatible programming in their departments.
Accordingly, we believe a county auditor serving a county
with a population of less than 190,000 may adopt and enforce
regulations pursuant to section 112.001 that incidentally
require the use of specified computer programming, so long
as such rules are not inconsistent with law or a rule or
form adopted by the comptroller under section 112.003.



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     However, the auditor may not, as you contend, dictate
which equipment county officers shall use.    Such a deter-
mination is appropriately reserved for the commissioners
court in the exercise of its discretion in approving budgets
and making contracts for the purchase of equipment and
supplies for the county.
     In support of your contention, you cite Commissioners
Court of Harris County v. Fullerton    596 S.W.28 572 (Tex.
Civ. App. - Houston [lst Dist.] lQi0, writ ref'd n.r.e.)
where it was held that the commissioners court was under A
ministerial duty to supply the county auditor with whatever
equipment the auditor determined was necessary for the
proper functioning of his office unless the commissioners
court found that the auditor had abused his discretion. The
case concerned the commissioners court's refusal to supply
the auditor with computer equipment of the         auditor's
specification and various orders of the court requiring,
among other things, the sale of the auditor's computer
equipment and the transfer of computer operations of the
office to a department created by the commissioners court
and under its control. The court found that the auditor's
duty to prescribe accounting methods, forms and rules
regarding county money, in conjunction with the authority
granted by former V.T.C.S. article 1650 (now section 84.901
of the Local Government Code), supplied ample authority for
its conclusion. Article 1650, however, at the time provided
that the auditor could provide himself with all necessary
equipment at the county's expense.       Thus, we are not
convinced that the case supports the proposition that the
auditor may order other county officers to use computer
equipment of the auditor's specification in the conduct of
the affairs of their offices.
     Two other issues concerning your request have been
brought to our attention by a county tax assessor-collector
and the Secretary of State's office. The first is whether
the auditor may, through specific programming of the county
computer system, obtain immediate, unobstructed, and unsu-
pervised access to the records of elected county officers
that are stored in the computer system. We conclude that
the auditor may not acquire such access.         The second
concerns the maintenance of voter registration information
on computer by the. tax assessor-collector in her capacity
as registrar of voters.
     We are informed that the computer system is supervised
by the district clerk's office.    As you describe it, the
system'is programmed to allow each office to conduct its
own business, but it also permits the county auditor .to
'*collect,check, and account for revenues and other funds
received by county or district officers."    We assume this



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means that the computer is programmed to allow the county
auditor to obtain immediate, unobstructed, and unsupervised
access to information collected and maintained by other
offices that is transmitted to the central computer.     The
county tax assessor-collector has expressed misgivings about
this feature of the computer system.
     Section 112.006 of the Local Government Code provides
that the auditor has "general oversight" of the books and
records of a county, district, or state officer authorized
or required by law to receive money or property belonging to
the county or intended for its use.      Section 115.001(l)
grants the auditor "continual access" to the         "books,
accounts, reports, vouchers, and other records of any
officer." The auditor is under the duty to carefully
examine and investigate the correctness of these records and
reports. Local Gov't Code 50 115.001; 115.002.
     Sections 112.006 and 115.001 date back to 1905, when
the substance of these provisions was included in the enact-
ment first creating the office of county auditor. See Acts
1905, 29th Leg., ch. 161, at 381. Obviously, the legisla-
ture could not then have foreseen the development of
technology that would allow the county auditor to take
literally the grant of continual access to the records of
county officers.   This office has previously declined to
pass on the manner in which the auditor exercises his or her
duties under section 115.001. &&a Attorney General Opinions
O-6260 (1944); O-2734-A (1940). However, this office has
previously determined that these provisions do not grant the
county auditor immediate or unlimited access to the records
of county officers and do not divest county officers of
reasonable control over the information maintained in the
pursuit of their official duties.
     Attorney General Opinion WW-154 (1957) concluded that
"continual access" means that the auditor may be present in
office of the county officer whose records are to be exam-
ined at all times when that office is in operation. It also
determined that in the absence of statutory authorization or
the permission of the county officer, the auditor could not
remove the records from the office for inspection. The
county officer could therefore prevent the auditor from
physically removing the records.
     Similar reasoning should apply here. We have identi-
fied no statute that authorizes the county auditor to obtain
immediate, unlimited access to the computerized records of
county officers. The Open Records Act and the Local Govern-
ment Records Act, moreover, specifically charge elected
county, district, and precinct officers with the control,
management, and preservation of information created or



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received by their offices pursuant to law or in the transac-
tion of public business, including information stored in a
computer that serves all county offices. Attorney General
Opinion JM-1224 (1990). &g V.T.C.S. art. 6252-17a, 5 5(a):
Local Gov't Code 5s 203.002, 203.005, 205.002. Neither the
commissioners court nor an office created by it to manage
the computer system may deprive elected county officers of
this statutory authority. Attorney General Opinion JM-1224
(1990).2
     Accordingly, we do not believe the county auditor may,
through computer programming or equipment applications,
obtain unlimited access to the records of elected county,
district, or precinct officers without the prior authoriza-
tion of the officers.   Because county officers are equally
bound by sections 112.006 and 115.001, their authorization
may not be arbitrarily or unreasonably withheld.
     The final issue raised by this opinion request concerns
the storage of voter registration information on computer by
the county tax assessor-collector in her capacity as regis-
trar,of voters.
     We have also learned that the commissioners court
recently ordered the cancellation of the contract for the
lease of computer hardware and software used by the county
tax assessor-collector's office.      The cancellation   is
effective at the close of business on December 31, 1990. We
are advised that the tax~assessor-collector serves as voter
registrar for the county, and that voter registration


     2. The county tax assessor-collector has expressed
concern that installation of the computer system as it has
been described in this opinion will effectively circumvent
her control over access to the records maintained by her
office. Attorney General Opinion JM-1224 indicated that
elected county officers had implied authority to adopt
reasonable security and control measures for any information
received by their offices and stored electronically.   Thus,
the county tax assessor-collector in this instance would be
authorized to adopt controls reasonably designed to ensure
the security of the records of her office and to prevent
unauthorized access to such records, provided she has not
delegated this duty under the Local Government Records Act.
See Local Gov't Code § 203.005(g). The opinion          also
indicated that the duty of the commissioners court in these
circumstances is to     facilitate the implementation     of
reasonable security measures by the elected county officer.
&g Local Gov't Code 5 203.003.



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Honorable Terry D. McEachern - Page 6 (JR-1275)



information is maintained with the assistance      of   the
computer hardware and software supplied by a        private
company. m   Elec. Code J 12.001.
     Section 18.012 of the Election Code prohibits a county
from entering into a contract with a computer services
company or other private business for services related to
original, supplemental, or corrected lists of registered
voters without the Secretary of State's prior approval of
the programs, equipment, or other materials covered by the
contract. The Secretary of State's office informs us that
the contract with the private business entity regarding the
computer equipment currently used      by the county    tax
assessor-collector in her capacity as registrar of voters
was subject to this provision.
     If it appears that the commissioners court will require
the tax assessor-collector to maintain voter registration
information in the county computer system, this action
ordinarily would not be subject to section 18.012. However,
if the county intends to contract with a private business
entity for any service relating to computerized lists of
registered voters, including programming of the county
computer to accommodate such information, the contract is
subject to section 18.012 and cannot be entered into without
the prior approval of the secretary of state.3
                      SUMMARY
           A county auditor in a county with a
        population of less than 190,000 may adopt and
        enforce regulations    pursuant to    section
        112.001 of the Local Government Code that
        incidentally require the use of specific


     3. The registrar of voters may also have a separate
legal duty to secure other voter registration information
stored electronically. See Elec. Code 90 13.103 (voter
registration application files may be stored electronically,
but their physical security must be maintained): 15.053
(files of duplicate initial voter registration certificates
may   be   maintained   as    electronic  data    processing
information); 15.054 (files must be kept at all times by
registrar in a place       and manner that ensures     their
security). These provisions may implicitly authorize the
registrar to adopt computer security measures for such
information, but it is unnecessary to decide this issue,
since we have already determined that the Local Government
Records Act grants comparable authority.
Honorable Terry D. McEachern - Page 7 (JM-1275)



        computer programming by county      officers,
        provided such rules are not inconsistent with
        law or a regulation adopted by the Comp-
        troller of Public     Accounts pursuant    to
        section 112.003 of the Local Government Code
        and do not unreasonably infringe upon the
        duties of county     officers.   The   county
        auditor may not dictate what equipment county
        officers shall use in the conduct of the
        affairs of their offices.

           If voter registration information is main-
        tained on a computer   system that serves all
        county offices, and if the commissioners
        court intends to contract     with a private
        business entity for any service relating to
        such computerized   information, the contract
        may not be     executed   without  the   prior
        approval of the Secretary of State pursuant
        to section 18.0.12 of the Election Code.




                                     JIM     MATTOX
                                     Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLXY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Steve Aragon
Assistant Attorney General




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