   OFEICE    OF THE ATTORNEY   GENERU    ST*TE   OF TLXIIS

   JOHN CORNYN




                                                 March 23,1999



Mr. John Branson                                             Opinion No. JC-0023
Fisher County Auditor
P. 0. Box 126                                                Re: Authority of a commissioners   court to order
Roby, Texas 79543                                            an independent audit (RQ-1182)


Dear Mr. Branson:


        You tell us that the Fisher County Commissioners Court voted on and approved amotion for
an independent audit of the 1997 fiscal year. You ask whether there is any action that you, as the
county auditor, may take to deter the audit, which you oppose as unnecessary, unjustified, and a
waste of taxpayers’ money. We conclude that a county auditor may not prevent a properly ordered
independent audit absent an abuse of discretion by the commissioners court.

         A commissioners court may authorize an independent audit of the county accounts and
officials in two circumstances:  1) upon notice and duly adopted resolution ifjustified by an impera-
tive public necessity; or 2) by an order properly entered at any regular term determining that an
audit would best serve “the public interest.” TEX. Lot. GOV’TCODEANN. 5 115.03 1 (Vernon 1988).
The latter circumstance was addressed in a 1955 amendment to the statutory predecessor of
subsection 115.031(i), accompanied by this emergency statement:           “The fact that it is almost
impossible for a Commissioners Court to secure an independent audit of the county records at the
present time without casting some reflection on the county officers or the institutions of the county
creates an emergency         .“I Before the addition of subsection (i), a commissioners court could
order an independent audit of county accounts and officials only when justified by an imperative
public necessity.     See TEX. Lot. GOV’T CODE ANN. 5 115.031(a)-(h) (Vernon 1988) (steps
commissioners court must take to order independent audit justified by imperative public necessity).
By adding subsection (i), the legislature provided another, less demanding, procedure for a
 commissioners court to order an independent audit. See generally 35 DAVID B. BROOKS, COUNTY
 AND SPECIAL DISTRICT LAW 5 19.17 (Texas Practice 1989) (interpretation of statutes allowing
 special and outside auditors).

        A county auditor, who shares broad power over county finances with the commissioners
court, has “general oversight ofthe books and records of a county, district, or state officer authorized


            ‘Act ofMarch 16, 1955,54th Leg., R.S., ch. SO,$ 2, 1955 Tex. Gen. Laws 78.79
Mr. John Branson    - Page 2                      UC-0023)




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.” TEX. LOC. GOV’T CODE ANN. 5 112.006(a) Vernon 1988).
Claims against the county may not be paid until the auditor has examined and approved them. Id.
3 113.064. The auditor must also “see to the strict enforcement of the law governing county
finances,” id. 5 112.006(b), and “may not audit or approve a claim unless the claim was incurred as
provided by law,” id. § 113.065. However, section 115.031 provides that “[tlhe authority given to
county auditors under this subtitle [chapter 1151, as well as other provisions of statutes relating to
district, county, and precinct finances and accounts, is subordinate to the powers of the
commissioners court under this section.” Id. 5 115.031(j) (emphasis added).

          As we have noted, subsection 115.031(i) allows a commissioners          court to order an
independent audit if the court determines it would “best serve the public interest.” You ask how
“public interest” is defined under that subsection. The Local Government Code does not provide
a definition of the term. Whether an independent audit would “best serve the public interest” is a
factual determination committed to the discretion of the commissioners       court. Courts broadly
construe a commissioners court’s authority to order an independent audit. In Guerrero v. Refugio
County, 946 S.W.2d 558, 571 (Tex. App.-Corpus        Christi 1997, no writ), for example, the court
declared:

            The county commissioners court, with the county judge as presiding officer,
            exercises power and jurisdiction over all county business, as prescribed by
            state law. TEX. CONST. art. 5, § 18. Maintaining finance records and
            examining accounting records of the county are among the functions of the
            commissioners court. TEX. LOCAL GOV’T CODE ANN. $5 112.008, 115.022
            (Vernon 1988). In order to fulfill these functions, the commissioners court
            may authorize an independent audit of the accounts and officials if the audit
            would best serve the public interest. See TEX. LOCAL GOV’T CODE ANN.
            5 115.031 (Vernon 1988). This audit can include the office of the county
            auditor. Id.

In Commissioners Court of Caldwell County v. Criminal DistrictAttorney, 690 S.W.2d 932,93435
(Tex. App.-Austin      1985, writ ref d n.r.e.), the court observed: “The correlation of total revenue
 and expenditure, and apportionment of the former among the various county functions, operations,
 and programs, in the overallpublic interest, is the essence of the decisionmaking entrusted to the
judgment of the Commissioners Court. There could be no clearer grant of discretionary power.”
 (Emphasis in original.)

        If you disagree with the commissioners court’s determination that an independent audit
would “best serve the public interest,” you may challenge that finding in district court. The district
court has appellate jurisdiction and general supervisory control over a county commissioners court,
Mr. John Branson    - Page 3                        UC-0023)




with such exceptions and under such regulations      as the law may prescribe.   TEX. CONST.art. V, 5 8
(Vernon 1993). However,

            [a] party can invoke the district court’s constitutional supervisory control
            over a Commissioners Court judgment only when the Commissioners Court
            acts beyond its jurisdiction or clearly abuses the discretion conferred upon the
            Commissioners Court by law.




            If the Commissioners    Court acts illegally,    unreasonably,   or arbitrarily,   a
            district court may so adjudge.

Commissioners Court of Titus County Y. Agan, 940 S.W.2d 77,80 (Tex. 1997) (citing Ector County
v. Stringer, 843 S.W.2d 477, 479 (Tex. 1992)) (emphasis added). Once a commissioners court
exercises its discretion, the district court may review the order for abuse of discretion, but the district
court cannot substitute its judgment and discretion for that of the commissioners court. Id. While
the determination for an independent audit may be reviewed by the district court on an abuse of
discretion standard, it will not be overturned solely because of a difference of opinion concerning
its wisdom. See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223,226 (Tex. 1991) (citing Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238,242 (Tex. 1985)).
Mr. JohnBranson    - Page 4                      (X-0023)




                                       SUMMARY

               Under section 115.03 1(i) of the Local Government Code, a commission-
           ers court may provide for an independent audit of accounts and officials if the
           court, by an order entered at any regular tear, determines that the audit
           would best serve the public interest. Whether an independent audit would
           “best serve the public interest” is a factual determination committed to the
           discretion of the commissioners court. A county auditor may not prevent a
           properly ordered independent audit absent an abuse of discretion by the
           commissioners court.




                                               JOAN     CORNYN
                                               Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

 CLARK RENT ERVJN
 Deputy Attorney General - General Counsel

 ELIZABETH ROBINSON
 Chair, Opinion Committee

 Prepared by James E. Tourtelott
 Assistant Attorney General
