  .      .




                        The Attorney                General of Texas
                                             June        6,     1980

MARK WHITE
Attorney General




                   Honorable Bob Bullock                               Opinion No. NN-192
                   Comptroller of P&lie Accounts
                   LBJ State Office Build@                             Re: Investigative authority of the
                   Austin, Texas 787’74                                Comptroller of Public Accounts.

                   Dear Mr. Bullock:

                          You l-c?ve asked a number of questions about the investigative
                   authority of your office. Attorney General Opinion H-1063 (1977) concluded
                   generally that the comptroller may not independently initiate investigations
                   and examinations of the books and records of other state agencies when such
                   audits would ‘parallel or duplicate the duties of the State Auditor,” but the
                   opinion did not specify areas of activity that would be parallel or duplicate.
                   Your specific questions must be considered in the historical context of the
                   two offices.

                          The position of state auditor was created in 1943 to replace an
                   executive officer, the “State Auditor and Efficiency Expert,” appointed by
                   the governor. The auditor is appointed by the Legislative Audit Committee,
                   an arm of the legislature, Acts 1943, 48th Legislature, chapter 293, at 429,
                   end MIS authority to perform audits “of all accounts, books and other
                   financial records of the State Government of any officer of the state,
                   department, board, bureau, institution, commission or agency thereof,” and
                   to examine and audit “all fiscal books, records and accounts of all custodians
                   of public funds, and of all disbursing officers of this state, makiw
                   independent verifications of all assets, liabilities, revenues and expenditures
                   of the state, its departments, boards, bureaus, institutions, commmsions or
                   agencies. . . .‘I V.T.C.S. art. 4413a-13.

                          The comptroller is an elected constitutional  officer in the executive
                   branch of government.      The constitution requires him to “perform such
                   duties as are or may be required by law.” Tex. Const. art. IV, S 23. The
                   comptroller has the &ty to require that accounts presented to him for
                   settlement be verified by affidavit; to require persons receiving money or
                   property of which he keeps an account to render statements to him and
                   settle their accounts after examination; to superintend the collection of all




                                                    p.        613
Honorable Bob Bullock - Page Two       (Ml+‘-1921




moneys due the state; to audit the claims of all persons against the state ‘Qmless the
audit. . . is otherwise specially provided for”; and to “[sluperintend the fiscal concerns of
the [sltate, as the sole accounting officer thereof, end manage the Same in the manner
required by law.” V.T.C.S. art. 4344. This statutory list of the comptroller’s duties has
remained largely unchanged since the early part of this century.        In 1918, however, the
comptroller was “authorized and empowered to perform the duties and functions of [the]
office heretofore performed by the State Revenue Agent.” Acts 1918, 35th Leg., 4th C.S.,
ch. 94, at 19’7. The executive office of state revenue agent, first created in 1891, was
simultaneously abolished.

      The duties and functions now assigned the comptroller by article L03, Taxation-
General, V.T.C.S., are those previously performed by the state revenue agent. See Acts
1959, 56th Leg., 3rd C.S., ch. 1, at 187, former article 7057, V.T.C.S. Part of thorduties
had been assigned the state revenue agent in 1891 when the office was created. See Acts
1891, 22nd Leg., ch. 69, at 89. The remainder were added in 1899. See Acts 18% 26th
Leg., ch. 23, at 26. The original part of the statute that is now embm       in article 1.03,
Taxation-General,  V.T.C.S., reads:

              The Governor x,       whenever in his judgment the public service
           demands it, direct the Comptroller         to investigate  books and
           accounts of the assessing and collecting officers of this State, and
           all officers and persons disbursing, receiving or having in their
           possession public funds, and to make such other investigations and
           perform such other duties in the interest of the public revenues as
           the Governor may direct.         Whenever any such investigation    is
           ordered by the Governor, the Comptroller shall report to him in
           writing the results thereof, and point out the particulars, if any,
           wherein the revenue laws have been violated or their enforcement
           neglected, together with the names of those delinquent therein.
           Whereupon the Governor shall institute civil and criminal pro-
           ceedhgs through the Attorney General in the name of the State
           against    such delinquent     parties  who are reported      @ the
           Comptroller to be delinquent. The Comptroller shall have power at
           any time to examine and check up all and any expenditures of
           money appropriated for any of the state institutions or for any
           other purpose or for improvements made by the State on State
           orooertv or monev received and disbursed bv anv board authorized
           by iaw“to receive and disburse any State mon:y. . . . When the
           [Comptroller], acting under the direction of the Governor, calls on
           any person connected with the public service to inspect his
           accounts, records or books, said person so called upon shall submit
           to said     ent all books, records and accounts so called for without
           delay. FEmphasis added).




                                           P.   614
Honorable Bob Bullock - Page Three        (MW-192)




The part enacted in 1899 reads,   as embodied in article 1.03, Taxation-General,   V.T.C.S.

           The Comptroller shall also heve power and authority end it is
           hereby made his duty, to fully investigate any State institution
           when so directed by the Governor or required by information
           coming to his own knowledge. He shall investigate the manner of
           conducting the same and the policy pursued by those in charge
           thereof, and the conduct or efficiency of any person employed
           therein by the State.   He shall examine into and report upon the
           character   and manner as well as the amount of expenditures
           thereof, and investigate and ascertain all sums of money due the
           State from any source whatever, the ascertainment and collection
           of which does not devolve upon other officers of this State under
           existing law; and he shall report all such facts to the Governor.
           (Emphasis added).

        The original provision was designed to complement the power given the governor by
the 1876 constitution to demand accountings of executive officers and managers of state
institutions, and to inspect their books and accounts. Tex. Const. art. IV, S 24. The state
revenue egent was empowered to act only under the direction of the governor, and it was
only when he was so acting that persons connected with the public service were required
to “sbmit      to said agent all books, records and accounts . . . without delay.” That
language is still found in article 1.03, Taxation-General,    V.T.C.S., and we think the
meaning remains the same.

      The language added in 1899 expanded the revenue agent’s possible scope of inquiry
beyond fiscal matters. For the first time the statute expressly allowed him to investigate
“the policy pursued by those in charge [of state institutions], and the conduct or efficiency
of any person employed therein. . . .‘I He was to do so when “directed” by the governor or
“required” by information coming to his own knowledge. So far as we can determine, the
state revenue agent continued to be the agent of the governor, and his initial authority to
launch an investigation under the statute depended upon gubernatorial direction, but once
his investigation started, be was required to pursue it wherever it led, and to “report all
such facts to the governor.”         Art. 1.03, Taxation-General,   V.T.C.S.   We think the
comptroller is under the same duty, and that his investigative powers under article 1.03,
Taxation-General     , V.T.C.S., are wholly derivative of a discretionary      power in the
governor to initiate investigations.

       We believe the legislature interpreted the predecessor of article 1.03, Taxation-
General, V.T.C.S., in this way in 1929 when it first created the independent office of state
auditor and efficiency expert. After granting the new officer authority to inspect books
and records of all the departments of State Government and charging him to investigate
custodians of public funds and disbursing officers and to examine all departments with
special regard to duplication of efforts between departments, and the efficiency of their
employees it concluded:




                                             P.   615
Honorable Bob Bullock - Page Four          (NW-192)




            Section 9. The fact       that there is now no State Auditor and no
            official designated to   audit and investigate the custodians of pubhc
            funds and the various    departments of the State Government create
            an emergency . . . .     Acts 1929, 41st Leg., lst C.S., ch. 91 at 222.
            (Emphasis added).

      In our opinion, article 1.03, Taxation-General,    V.T.C.S., confers no independent
power upon the comptroller to initiate investigations of state officers and institutions, but
the governor is empowered to use the comptroller as his agent for such purposes.

      In light of the foregoing discussion, we turn to your specific questions.   The first to
be addressed, is:

            Is the implied &ty and power conferred upon the Comptroller to
            make inquiry and examine, without prior notice, all of the financial
            records in the possession of any person or state agency authorized
            by law to receive state money, for the purpcee of determining if
            there are any such persons who have received and not accounted
            for any money that belongs to the state? For example, does the
            Comptroller have the power to conduct an audit at any time,
            without notice, of the records of any county tax assessor-collector
            in this state for the purpose of verifying that all state ad valorem
            tax and all state motor vehicle sales tax that has been collected by
            the assessor-collector  has been reported and remitted to the state
            in accordance with TEX. REV. CIV. STAT. ANN. art. 7260 (Vernon
            1960) and TEX. TAX.-GEN. ANN. art. 6.07 (Vernon Supp.
            1978-1979)? And does the Comptroller have the power to conduct
            an audit at any time, without notice, of the Alcoholic Beverage
            Commission for the purpose of determining whether or not all
            permit fees and all taxes collected by the Commission on the sales
            of distilled spirits? wine, beer, ale end malt liquor have been
            reported to his office and remitted to the Treasurer in accordance
            with TEX. ALCOH. BEV. CODE ANN. 5202.04, S205.02 and 5205.03
            (Vernon 1978)?

      The question, as stated, has very broad implications. For example, “all the financial
records in the possession of any person . . . authorized . . . to receive state money” would
encompass even the personal checkbooks and federal income tax returns of state
employees advanced travel funds. Cf. Attorney General Opinion H-74 (1973) (advance of
expenses to state employees).    Thexmptroller       has no power to examine all records of
such a broad description. Of course, be may make inquiry in a proper case, and it may be
his duty to do so. Article 4344, V.T.C.S., &es not empower the comptroller “to conduct
an audit at any time, without notice, of the records of any county tax assessor” in order to
verify that state taxes have been remitted to the state in accordance with article 7260,
V.T.C.S., and article 6.07, Taxation-General,     V.T.C.S. See Attorney General Opinion
C-447 (19651. Compare the uses of the word “audit”in                May v. Wilcox Furniture
Downtown, Inc., 450 S.W.2d 734, 739 (Tex. Civ. App. - Corpus Christi 1970, writ rePd




                                             P.   616
Honorable Bob Bullock - Page Five         (MW-192)




n.r.e.), and in City of Houston v. Chapman, 145 S.W.2d 669 (Tex. Civ. App. -          Galveston
1940, writ dism’d, judg . corr. .

      The derivative nature of the comptroller’s investigatory power over public agencies
contrasts sharply with the independent power to investigate private business concerns
accorded him by article 1.031, Taxation-General,   V.T.C.S.. He has the power to settle the
accounts of local tax collecting officers and to require proofs of the accuracy of the
accounts before doing so, but under article 4344, V.T.C.S., he has no authority to demand
to see the books and records of local officers except to verify accounts or claims. In a
proper case ha may condition approval of an account submitted by a local officer on the
presentation to him of further proofs, but if access to a local official’s books and records
is refused, he must leave the account unsettled and refer the matter to other officers
having general investigative   powers, unless the governor has directed him to proceed
under article 1.03, Taxation-General.   See R og ers v.( Lynn, 49 S.W.2d 709 (Tex. Comm!n
App. 1932); Gallaway v. Sheppard, 89 S.W.2d 417 Tex. Civ. App. - Austin 1935, writ
dism’d). See V.T.C.S. art. 7260, S 7; Tax.-Gen. art. 6.02, V.T.C.S. art. 4344, SS 3, 7, 8. -Cf
Attorney &era1     Opinion G-4260 (1941).

      Nor hes he any independent authority        to audit the Alcoholic Beverage Commission
with respect to permit fees and taxes.

      You also ask:

            Is the Comptroller responsible for determining who owes money to
            the state and how much they owe ? If so, is the implied duty and
            power conferred upon the Comptroller to make inquiry end examine
            any contract for goods and services provided and paid for by the
            state for the purpose of determining whether or not the state has
            received what it paid for? For example, does the Comptroller have
            the right to investigate the supply purchase and inventory records
            of the Utility Department of the University of Texas at Austin for
            the purpose of determining the identity of the debtor(s) and
            amounts owed, if he has reason to believe that state money has
            been paid for supplies that were never delivered to the state?

      The comptroller is responsible for. determining
                                                .      who owes
                                                             .. .. .money
                                                                    .     to the .state . and how
much they owe, but he dDes not have tne exclusive responslbulty or comprenenslve power
to do so. Article 4344, section 10, V.T.C.S., makes it the duty of the comptroller to:

            Examine and settle the accounts of all persons indebted to the
            State and certify the amount or balance to the Treasurer, and
            direct and superintend the collection of all monies due the State.

However, in 1912the Texas Supreme Court concluded that the comptroller lacked power to
independently   determine facts that purported to sipport a sheriff’s claim for monies
certified correct by a district court. The comptroller had reason to suspect fraud. The
Supreme Court said, however:




                                             P.    617
Honorable Bob Bullock - Page Six     (MW-192 1




           The character of the examination must be defined by the means
           which the law furnishes to enable the officer to perform the duty
           enjoined. . . .

           The Comptroller.   . . has no power to secure evidence. It cannot be
           denied that his means of examination Is confined to the copy of the
           record; therefore, his examination must be confined to that as a
           report. . . .

           Indeed . . . the Comptroller has no facts nor power to obtain facts
           upon which to act otherwise than to test the work of the clerk.
           Rochelle v. Lane, 148 S.W. 558 (Tex. 1912)at 559, 560.

       Twenty years later, after the office of state auditor and efficiency expert had been
created, the foregoing decision was modified by Rogers v. Lynn, supra, another case of
suspected fraud. The Rochelle v. Lane holding that the comptroller could not go behind
the certification  presented to himwas overturned, and the comptroller was permitted to
assert that article 4350, V.T.C.S., forbade him to issue a warrant to a person whose
fraudulent schemes made him indebted to the state. But the court in Rogers v. LyNI,
s ra, did not bold or imply that the comptroller possessed independent power to “obtain
+Iacts other than those deducible from the formal records presented him for review.

       Although the Rogers v. Lynn court held that no warrant should be issued unless the
comptroller finds the claim “correct,” meaning “just and legal,” the factual allegations
which the court believed were made by both the comptroller and the state auditor. Both
officers alleeed thev exercised the DOW= and duties imoCeed uoon them bv law “to
carefully ex;mine arid investigate these accounts,” and found them fraudulent. ~49 S.W.2d
710. See also Gallaway v. Sheppard, B,        (comptroller disallowed sheriff’s claim as a
resultaudit        by the auditor).

       The comptroller has some discretion under article 4344, V.T.C.S., in approving
claims and accounts, and in determining amounts owed the state, but he may not exercise
that discretion in an arbitrary or absolute manner. See Fulmore v. Lane, 140 S.W. 405
(Tex. 1911). Nor &es it allow him independently to in.$&t the books and records of other
officials without invitation.  See Navarro County v. T-ullcs, 237 S.W. 982 (Tex. Civ. App.
- Dallas 1922. writ rePd1. Though such records might be otherwise available to the
comptroller, an unlimited special right of access to them is not given him by article 4344,
V.T.C.S. -Cf. V.T.C.S. article 6252-17a (Open Records Act).

      Consequently, the comptroller has no independent right under article 4344, V.T.C.S.,
to “investigate the supply, purchase and inventory records of the Utility Department of
the University of Texas at Austin for the purpose of determining the identity of the
debtors and the amounts owed .‘I Of course, he should report his suspicions to the governor
or the state auditor to obtain their assistance in bringing about an investigation.    If an
account of such property is kept in his office, he may require the persons having the
management of it to “render statements thereof to him.” V.T.C.S. art. 4344, 5 7.




                                              P.   618
,




    Honorable Bob Bullock - Page Seven        (MW-1921




           Your question as to whether article 1.03, Taxation-General,   V.T.C.S., “expressly”
    grants you “the authority to examine any state agency expenditures, such as those
    queried,” is answered by the foregoing discussions. The express authority granted by that
    statute is conditioned upon gubernatorial initiation.

          In a similar vein, you ask:

                Does the Comptroller   have the right to investigate any state
                agency at any time for the purpose of assuring himself that no
                state employee salary warrants have previously been Issued to non-
                eldstent employees?

    and

                Is the implied duty and power to inspect and evaluate the policies
                and methods followed by any person or state egency engaged in
                collecting   money on behalf of the state conferred lpon the
                Comptroller?   For example, &es the Comptroller have the right to
                inspect and evaluate the auditing and collection methods of the
                Alcoholic Beverage Commission with regard to all state taxes and
                fees collected by it?

           The comptroller has no broad, independent power “to investigate any state agency at
    any time for the purpose of assuring . . . that no state employee salary warrants have
    previously been issued to nonexistent       employees.”    Cf.   Attorney General Opinion
    WW-1328 (1962) (comptroller lacks authority to determinewhether       particular employment
    violated Position Classification    Act).    Article 4344 section 2, V.T.C.S., gives the
    comptroller power to adopt regulations essential to the speedy and proper assessment and
    collection of the revenues of the state.     He is to prescribe the form used in collecting
    public revenue and to specify the manner in which they are to keep their accounts.
    V.T.C.S. art. 4344, S 5. Moreover, he may “suggest” plans for improving and managing the
    general revenue.     g S 17. However, the comptroller has no independent power under
    article 4344, V.T.C.S., to subject the office procedures and methods of other officials to
    his on-the-spot scrutiny.    He may do so as an agent for the governor under article 1.03,
    Taxation-General,    V.T.C.S., but otherwise, that power and duty is vested in the state
    auditor. V.T.C.S. arts. 4413a-13, 4413a-14, 4413a-16.

          Another inquiry reads:

                Is the Comptroller impliedly required to keep a central record of
                all persons indebted or owing taxei to the state and to check all
                proposed expenditures of state money against such record, regard-
                less of the nature or source of the liability to the state or whether
                the warrant is to be &awn against funds of the state that sre kept
                in or outside the State Treasury?




                                                P.   619
Honorable Bob Bullock - Page Eight          (MN-192)




       V.T.C.S., article 4344, section 9 makes it the duty of the comptroller to “keep and
settle all accounts in which the state is interested,” without limitation.      The state is
“interested” in its funds whether kept in the state treasury or elsewhere. See Boyett v.
           467 S.W.2d 205 (Tex. Civ. App. - Austin 1971, writ rePd n.r.e.). A=1     dismissed
sub nom. Anderson v. Calvert, 92 S. Ct. 1316(1972); Attorney General Letter Advisory No.
lx (1977). We conclude, therefore, that article 4344, V.T.C.S., contemplates the keeping
of records by the comptroller that would enable him to identify persons indebted to the
state or owing taxes to it. We think, too, that all warrants issued should be checked
against the list of persons indebted to the state, for article 4350, V.T.C.S., specifies that
no warrant is to issue to any person indebted to the state, or owing delinquent taxes to it.

       The determination that a person is indebted to the state for article 4350, V.T.C.S.,
purposes cbes not necessarily lie with the comptroller.         An official allegation of
indebtedness must be made by those empowered to make one. Attorney General Letter
Advisory No. 57 (1973). Cf. Sherman v. Hatcher, 299 S.W. 227 (Tex. Comm’n App. 1927)
(construing article 4350). -

         Another set of your questions centers upon section 11of article 4344, V.T.C.S., which
reads:

              Among other duties, the Comptroller      shall:

              . ..I

                 11.   Audit the claims of all persons against the State in cases
                       where provision for the payment thereof has been made by
                       law, unless the audit of any such claim is otherwise
                       specially provided for.

You couple this provision with article 4357, V.T.C.S., which forbids the preparation        of
warrants except lpon the presentation of audited claims, and ask:

              Does the Comptroller have the duty and power to examine any such
              claimant regarding any matter that is material to his claim and to
              require him to produce any evidence necessary to verify the legal
              validity of his claim against the state, if the Comptroller considers
              such examination necessary?      For example, was the Comptroller
              acting within the lawful limits of his authority when he sent a team
              of auditors to personnel of Southwest Texas State University for
              the purpose of determining whether or not vouchers previously
              skmitted    by the University, approved by the Comptroller’s office,
              and paid by the Treasurer to persons for consulting services were in
              fact a subterfuge for payment of travel expenses incurred by those
              same persons as interviewees of the University? For example, does
              the Comptroller twve the power to visit the premises of any state
              agency at any time, without prior notice, and require an accounting




                                            P.   620
Honorable Bob Bullock - Page Nine       (III+192)




           of all employees listed on that sgency’s monthly payroll voucher
           filed with the Comptroller who are missing and unaccounted for, if
           any?

You also ask:

           Is the Comptroller granted the authority to examine at any time
           the records, include   any internal performance records used by any
           agency to measure its performance of its statutory functions for
           the purpose of advising the Governor, inter alla, whether or not the
           budget request sbmitted       by that egv         based on reliable
           information, if he has reason to believe that such records ere not
           being kept or are inaccurate or misleading?

       The earlier discussion is applicable to these questions.     The comptroller has no
authority to demand unnecessary proofs or to conduct inquisitions about the propriety of
past agency actions.    Attorney General Opinion C-447 (1965). He has no independent
power to send auditors to state institutions of higher learning to examine records and
personnel in an attempt to establish the bona fides of vouchers upon which he previously
issued warrants. See Attorney General Letter Opinion, Book 381, page 797, addressed to
Geo. H. Sheppard,and dated April 16,1938. Nor &es he possess independent power to visit
state wencies for the purpose of requiring them to account for the people on their payroll
vouchers that are not on the premises at the time he visits them. Those activities
duplicate or parallel functions of the state auditor. The same applies to the examination
for budgetary purposes of internal records used by agencies to measure their performance
of statutory duties.    If the governor wishes the comptroller to take a more active
investigatory role in establishing a basis for advice regarding budget requests, he may
direct him to &J so. The comptroller &es have the duty to satisfy himself that claims
presented to him are legal claims for wm       valid appropriations have been made, and to
refer suspicious claims to agencies with larger investigatory powers., but if he refuses to
issue a warrant when his legal duty to do so is clear, mandamus will lie. Norris v. Bullock,
580 S.W.2d 812 (Tex. 1979); S & G Construction Co., Inc. v. Bullock, 545 S.W.2d 953 (Tex.
1977). -Cf. Denison v. Sheppard, 60 S.W.2d 1031(Tex. 1933) (right unclear).

      Two other questions are as follows:

              With regard to the general duty to ‘superintend and menage the
           fiscal concerns of the State, as the sole accounting officer thereop
           provided in TEX. REV. STAT. ANN. art. 4344, S3 (Vernon 19761, and
           in view of the specific accounting and investigatory responsibilities
           expressly provided in art. 4344, 59, art. 4344b, S2, art. 4348
           (Vernon 1976), and TEX. TAX.-GEN. ANN. art. 1.03 (Vernon 1969)
           .. ..

           Is the Comptroller expressly given the duty and power to keep an
           accounting record of all receipts and disbursements of all state
           agencies and to check up and examine any such account for the




                                            p.      621
Honorable Bob Bullock - Page Ten       (MW-192)




            purpcee of determining       its accuracy  and legal conformity,
            regardless of whether or not the actual funds of any such account
            are kept in or outside the State Treasury?



            Do any of the State Auditor’s duties provided in TEX. REV. CIV.
            STAT. ANN. arts. 4413(a) - 7a et seq. (Vernon 1976) duplicate any of
            the duties imposed upon the Comptroller by TEX. REV. CIV. STAT.
            ANN. art. 4344 et se      (Vernon 1976) and TEX. TAX.-GEN. ANN.
            art. 1.03 (Vernon -9
                               1969 m terms of serving identical purposes?

       Your question regarding the combined effects won your powers of articles 4344,
sections 3 and 9; 4344b, section 2; 4348, V.T.C.S.; and article 1.03, Taxation-General,
V.T.C.S., are also answered above for the most part. Those provisions are to be read with
other statutory provisions. The comptroller is under a duty to keep records of all accounts
in which the state is interested, including accounts of funds and property maintained
outside the state treasury, and to “audit” the accounts furnished him by state agencies for
internal accuracy and facial legality.   See Attorney General Opinion M-625 (1970X Cf.
Fort Worth Cavalry Club v. Sheppard, 83TW.2d 660 (Tex. 1935); Corsicana Cotton Mills7
Sheppard, 71 S.W.2d 247 (Tex. 1934) flack of valid appropriations for claims). But he has no
Independent power to conduct out-of-the-office       investigations of suspected misrepre-
sentations.    That is a function of the state auditor, or of other officers, to whom the
comptroller should report his suspicions, along with any internal evidence to support them
that he has found in the accounts or reports submitted to him.

       Your other question turns the basic inquiry around. You ask, “Do any of the State
Auditor’s [statutory] duties . . . duplicate any of the duties imposed upon the Comptroller
 [by statute] in terms of serving identical purposes ?I’ If your question is limited to duties
 inde endentl    imposed won the comptroller, the answer is “No,” for the accounting and
- weal swervlsory     duties given the comptroller by article 4344, V.T.C.S., and similar
statutes are complemented, not duplicated, by the auditing and investigatory            duties
 imposed upon the state auditor. But the answer is “Yes” if the question encompasses those
 duties which may be assigned the comptroller by the governor pursuant to article 1.03,
Taxation-General,      for that statute anticipates    that the governor may employ the
 comptroller as his egent to perform many investigatory or auditing tasks which duplicate
 those the state auditor is empowered to undertake.         The arrangement provides a check
upon the power of the state auditor and a means of testing the efficiency and fidelity of
his office. The traditional appropriation act rider discussed in Attorney General Opinion
 H-1063, (1977), (see General Appropriations Act, Acts 1979, 66th Leg., article V, section 30
at V-45), does not affect the governor’s power.           It &es no more than prohibit the
expenditure of appropriated funds for hiring independent commercial auditors or private
auditing firms to do what the office of the state auditor is designed and equipped to do.
See Attorney General Letter Opinion, Book 365, page 815, addressed to G. R. White and
dated July 17,1935,




                                           P.   622
”    .




    Honorable Bob Bullock - Page Eleven       (NW-192)




          Lastly, you ask, “Have any of the Comptroller’s    duties and powers been repealed by
    implication and transferred to the State Auditor?”

           On the basis of a 1948 opinion of this office, Attorney General Opinion H-1063 (1977)
    concluded that the 1929 and 1943 legislation establishing, first, the executive office of
    state auditor and efficiency expert and, later, the legislative office of state auditor,
    repealed by implication     any independent authority the comptroller       might hve had
    theretofore to initiate investigations and examinations of the books and records of state
    agencies when those activities would duplicate or parallel the duties of the state auditor.
    See
     - Attorney General Letter Opinion R-1404 (1948).
          As discussed above, such independent authority never rested in the comptroller.
    Reliance by H-1063 (1977) on the doctrine of implied repealer was unnecessary. However,
     we reaffirm the conclusion of Attorney General Opinion H-1063 (1977) that the state
    comptroller of public accounts possesses no independent authority to duplicate or parallel
    the functions of the state auditor in initiating or conducting external, non-consensual
    audits and examinations of the books and records of state agencies.

                                           SUMMARY

               The state comptroller of public accounts possesses no independent
               authority lo duplicate or parallel the functions of the state auditor
               in initiating or conducting external, non-consensual audits and
               examinations of the books and records of state egencies, although
               he does possess such authority when acting at the direction of the
               governor.




                                                   Attorney General of Texas

    JOHN W. FAINTER, JR.
    First Assistant Attorney General

    TED L. HARTLEY
    Executive Assistant Attorney General

    Prepared by Bruce Youngblood
    Assistant Attorney General




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Honorable Bob Bullock - Page Twelve   (Mw-192)




APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
Walter Davis
Susan Garrison
Rick Gilpin
Diane Van Helden
Bruce Youngblood




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