THE ATTORNEY GENERAL 

0F TEXAS 

September 20, 1989 

Ms. Brenda Milligan 

Montague County Auditor 

P. 0. Box 56 

Montague, Texas 76251 

Opinion No. JM-1099 

Re: Whether a county auditor 

may require elected officials 

and department heads to provide 

details about employees' hours 

worked and leave taken (RQ-1548) 

Dear Ms. Milligan: 

You ask whether the county auditor can require elected 

officials and department heads to submit time sheets showing 

the total number of hours worked by county employees during 

the pay period, the amount of.sick leave and vacation leave 

taken, and the number of overtime and compensatory hours 

worked.1 As this opinion will explain, we believe the 

county auditor may require county officers and department 

heads to submit the data you describe, provided such action 

is not inconsistent with a rule or form prescribed by the 

comptroller of public accounts under section 112.003 of the 

Local Government Code. Before discussing the reasons for 

our conclusion, we will briefly review the circumstances 

leading to this opinion request. 

You inform us that following the issuance of Attorney 

General Opinion JM-911 (1988) your office and the office of 

the county treasurer for Montague County sought to consolidate all payroll functions for the county in the office of 

the county treasurer. As part of this effort, new 

timesheets were adopted for use by county officials which 

request the information described above for each employee of 

a particular office for a given pay period, as well as 

1. Your question is submitted pursuant to section 

402.042(b)(8) of the Government Code following receipt of 

the written opinion of the District Attorney of the 97th 

Judicial District. Gov’t Code 5 41.007. 

P. 5755 
MS. Brenda Milligan - Page 2 (JM-1099) 

or to be charged against an employee's pay.2 You further 

inform us that the county sheriff has refused to use the new 

timesheets. His refusal, you say, is based on his assertion 

that he alone, as head of his department, is responsible for 

determining an employee's entitlement to a salary and that 

the county treasurer has no need for the information 

requested on the timesheets. 

In a separate letter, the county sheriff maintains that 

neither the county auditor nor the county treasurer may 

require him or any other county officer to submit the 

timesheets you describe. He views this requirement as 

nothing more than an attempt by the county auditor and 

county treasurer to control county personnel policy and to 

usurp the powers of the commissioners court and individual 

county officers. The sheriff acknowledges the county 

auditor's duty to determine whether an individual employee 

is performing the work for which he or she is being paid but 

suggests this duty ends once the commissioners court 

authorizes payment of the employee's salary. He also cites 

article 1709a, V.T.C.S. (now repealed and recodified in 

relevant part as section 113.042(a) of the Local Government 

Code), and concludes that the county treasurer's duty to 

endorse warrants if sufficient funds are available precludes 

the treasurer from requiring any further information 

concerning an employee's salary.3 

In Attorney General Opinion JM-911 (1988) we determined 

that the county auditor for Harris County was not authorized 

to prepare the county payroll and print and distribute 

county paychecks. We understood these responsibilities to 

be part of the core functions of the constitutional office 

of county treasurer but subject to the legislature's power 

under article XVI, section 44, of the Texas Constitution to 

2. In your request letter you also wrote that the form 

you proposed would require the signatures of the employee 

and the department head and the employee's social security 

number. The form you later submitted for our review, 

however, does not ask for these items. 

3. It should be noted that neither the sheriff nor the 

district attorney offers any legal basis for the conclusion 

that the auditor may not require a county officer to submit 

time sheets for their employees. 

P. 5756 
Ms. Brenda Milligan - Page 3 (JM-1099) 

under article XVI, section 44, of the Texas Constitution to 

prescribe the duties of the office. The legislature, in 

three sections of the Local Government Code, 

authorized county 

expressly 

officers in certain counties, including 

Harris County, to prepare the payroll and issue warrants and 

draw checks in payment of salaries. See Local Gov't Code 

5s 113.047, 151.903, 154.043. We also concluded that the 

ministerial aspects of these duties, such as preparation of 

the payroll and salary warrants, could be delegated to the 

county treasurer but not to the county auditor. 

Attorney General Opinions JM-986 (1988) considered the 

extent to which Attorney General Opinion JM-911 was applicable to counties with lesser populations. Because there 

were no laws authorizing county officers to prepare the 

payroll in counties with populations of 500,000 or less, we 

concluded that the county treasurer was the appropriate 

official to prepare the county payroll for commissioners 

court approval and make deductions from the compensation of 

county employees. In counties with populations of 190,000 

or less, we said that the commissioners court was responsible for approving the county payroll and issuing warrants 

in payment of salaries: these duties could not be delegated 

to either the county treasurer or the county auditor. The 

treasurer could, however, be delegated the ministerial task 

of preparing salary warrants following the commissioners 

court's order authorizing their issuance. We also concluded 

that the commissioners court could not draw checks in 

payment of salaries. Attorney General Opinion JM-986 is 

especially relevant to Montague County which, according to 

1980 census figures, had a population of less than 18,000. 

We mention these opinions because they apparently 

motivated your actions and those of the county treasurer. 

These opinions, however, did not conclude that either the 

county auditor or the county treasurer was responsible for 

adopting, implementing, or enforcing county personnel 

policy. Rather, the opinions dealt only with ministerial, 

nondiscretionary tasks associated with the county payroll. 

The courts readily acknowledge the broad power of county 

officers to manage the affairs of their offices: 

Because of the unique structure of county 

government in Texas, [an elected county 

official] holds virtually absolute sway over 

the particular tasks or areas of responsibility entrusted to him by state statute and is 

P. 5757 
Ms. Brenda Milligan - Page 4 (JM-1099) 

accountable to no one other than the voters 

for his conduct therein. 

Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 

1980) (citations omitted). The powers of county officers, 

including the county sheriff, over personnel matters is also 

quite extensive, subject to appropriate constitutional and 

statutory restraints. See McBee v. Jim Hooq Countv, 730 

F.2d 1009 (5th Cir. 1984) (discussing constitutional principles affecting sheriff's decision to reappoint or not to 

reappoint subordinates of predecessor in office); Barrett v. 

Thomas, 649 F.2d 1193, 1199 (5th Cir. 1981), cert. denied, 

102 S.Ct. 1969 (1982) ("Sheriffs, like other elected county 

officials in Texas, have indisputably wide-ranging discretion in the selection of their employees."). Attorney 

General Opinions JM-911 and JM-986 therefore should not be 

viewed as endorsements of the proposition that the county 

auditor and county treasurer are generally responsible for 

the administration of county personnel policy. 

Because of the broad authority of county officers to 

direct personnel matters in their respective offices, we 

must look to the powers and duties of the county auditor to 

determine whether the auditor may make the kind of inquiry 

you ask about. Section 84.006 of the Local Government Code 

prescribes the qualifications for the office of county 

auditor. The county auditor must be a person of unquestionable character and intelligence, thoroughly competent in 

public business details, and must be a competent accountant 

with at least two years experience in accounting and 

auditing. Local Gov't Code 5 84.006. The county auditor 

must file a bond conditioned on the faithful performance of 

his official duties, take the official oath, and submit a 

written affirmation that states, among other things, that he 

will not be personally interested in a contract with the 

county. Id. § 84.007. 

The duties of the county auditor are spread throughout 

the Local Government Code. In a county with a population of 

less than 190,000, the county auditor is authorized to adopt 

and enforce regulations he considers necessary for the 

"speedy and proper collecting, checking, and accounting" of 

county funds. Id. 5 112.001. These regulations may not be 

inconsistent with law or regulations adopted by the 

comptroller of public accounts pursuant to section 112.003 

prescribing the manner of keeping and accounting for state 

funds. Id. He is given general oversight of the books and 

records of all county, district, and state officers authP. 5758 
Ms. Brenda Milligan - Page 5 (JM-1099) 

orized to collect or receive money or property belonging to 

the county. Id. 5 112.006(a). He must maintain accounts 

for such purposes and must keep records of county financial 

transactions. Id. 55 112.005, 112.007. The county auditor 

must also "see to the strict enforcement of the law 

governing county finances." Id. § 112.006(b). 

The county auditor possesses substantial authority to 

audit county finances. Seeid. 55 115.001 - 115.004. The 

auditor also bears significant duties concerning the 

expenditure of county funds. Claims against the county may 

not be paid until the auditor has examined and approved 

them. Id. 5 113.064(a). The auditor may not audit or 

approve a claim unless it was incurred as provided by law. 

Id. § 113.065. Additionally, a county check or warrant may 

not be paid unless it is countersigned by the county auditor 

to validate it as a proper and budgeted item of expenditure. 

Id. § 113.043. 

It might be argued that the county auditor's duty to 

approve claims against the county for salaries and wages 

grants the auditor the implied power to demand the information in question here. If the auditor has the discretion 

to approve or disapprove such claims, then the auditor certainly should be allowed to obtain information necessary to 

make that determination. But if the auditor's duty is 

purely ministerial, there is little need for information 

regarding a person's entitlement to a salary. 

The opinions of the courts and of this office are 

divided on this issue. Several conclude that the auditor is 

under a ministerial duty to approve salary payments ordered 

by the commissioners court and that salary payments are not 

claims subject to the approval or disapproval of the auditor. See Jackson v. Leonard, 578 S.W.2d 879 (Tex. Civ. APP. 

- Houston [14th Dist.] 1979, writ ref'd n.r.e.); Nacosdoches 

County v. Jinkins, 140 S.W.2d 901 (Tex. Civ. App. - Beaumont 

1940, writ ref'd); Attorney General Opinion M-40 (1967). 

Others hold that the auditor has discretion to disapprove 

salary payments. See Smith v. McCoy, 533 S.W.2d 457 (Tex. 

Civ. App. - Dallas 1976, writ dism'd). See also Love11 v. 

&?JQ, 315 S.W.2d 20 (Tex. Civ. App. - Austin 1958, writ 

ref'd n.r.e.). The third and most recent group of opinions 

harmonize these two lines of analysis and conclude that 

where an individual's right to a salary is established as a 

matter of law, the auditor is under a ministerial duty to 

approve the payment. See Attorney General Opinions JM-986 

(1988); JM-192 (1984). 

P. 5759 
Ms. Brenda Milligan - Page 6 (JM-1099) 

We believe the last group of opinions most reasonably 

and accurately reflects the state of the law concerning the 

county auditor's duty to approve salary payments. In Smith 

v. McCoy, for example, the court upheld the county auditor's 

refusal to approve payment of back wages to deputy sheriffs 

when their entitlement to the wages had not been established 

as a matter of law. The county sheriff requested the deputies be paid for a period in which they had been suspended 

from their jobs. After the auditor's initial rejection of 

the request, the commissioners court ordered payment of the 

back wages, but the auditor again withheld his approval. 

533 S.W.2d at 458-459. Had the deputies' entitlement been 

established as a matter of law, say, in court or in civil 

service proceedings, the auditor would have been under a 

ministerial duty to approve the payment of back wages. & 

Attorney General Opinion JM-192 (1984). 

Though it is arguable that the county auditor has 

discretion to approve or disapprove salary payments pursuant 

to section 113.064 of the Local Government Code, we believe 

the auditor nevertheless may require county officials to 

supply basic information necessary to the accomplishment of 

other duties. This office has determined on previous occasions that the county auditor bears primary responsibility 

for establishing financial procedures and internal accounting controls for the county. See Attorney General Opinions 

M-579 (1970); C-276 (1964). Attorney General Opinion O-6624 

(1945) concluded that the county auditor, pursuant to his 

duty to see to the strict enforcement of the law governing 

county finances, could inquire whether an employee of the 

county was actually performing duties for which the employee 

was being paid. The inquiry you propose is far less 

intrusive but may be justified on the same grounds. Even if 

it is assumed that the auditor is under a ministerial duty 

to approve payment of salaries, the auditor by necessity 

must be capable of determining whether an employee is 

entitled as a matter of law to a salary payment. 

An obvious example of the county auditor's need for 

basic payroll information is when a county officer 

authorizes a salary payment to an employee who was absent 

from his workplace during the pay period. Without such 

information, the auditor could only speculate whether the 

employee was entitled to payment on the basis of hours 

actually worked or hours earned as vacation, sick, or compensatory leave, or whether the employee was entitled to 

payment at all. A reporting requirement like the one you 

propose for Montague County is fully consistent with the 

P. 5760 
, Ms. Brenda Milligan - Page 7 (JM-1099) 

county auditor's role in the system of checks and balances 

created for county finances. See Smith v. McCoy suvra; 

Attorney General Opinion JM-911 (1988). AccordiAgly, we 

conclude that the county auditor may require county officers 

to supply basic payroll information on forms designed by the 

county auditor, provided such requirement * 

form prescribed i; 

not 

inconsistent with a rule or the 

comptroller of public accounts pursuant to section 112.003 

of the Local Government Code. 

As for the sheriff's assertion that the timesheet 

requirement is nothing more than an attempt to dominate 

county personnel practices, we should emphasize once more 

that neither this opinion nor the authorities discussed in 

it augment the power of either the county auditor or the 

county treasurer over county personnel matters. The same 

may be said with respect to the enforcement of the federal 

Fair Labor Standards Act (FLSA), 29 U.S.C. 35 201-219. YOU 

voice concern about compliance with the FLSA by the various 

county offices, but you do not indicate which provision of 

the FLSA or any other law gives the county auditor or county 

treasurer this responsibility. Again, we are aware of no 

provision of law that makes either the county auditor or the 

county treasurer generally responsible for the county's 

compliance with the FLSA. See. e.a C.F.R. Part 

(applying FLSA to employees of state aAd2Tocal governmen:zj 

imposing duties on "public agencies" rather than a specific 

office or officer). 

To summarize, we conclude that county officers may be 

required to supply the basic payroll information YOU 

describe on forms supplied by your office, provided such 

action is not inconsistent with a rule or form adopted by 

the comptroller of public accounts under section 112.003 of 

the Local Government Code. 

SUMMARY 

The county auditor in a county with a 

population of less than 190,000 may require 

county officials and department heads to submit information on forms designed or adopted 

by the county auditor and showing (1) the 

number of hours worked by county employees 

during a particular pay period, (2) the 

amount of vacation or sick leave taken, the 

number of hours credited or charged as 

P. 5761 
Ms. Brenda Milligan - Page 8 (JM-1099) 

overtime, compensatory time, or holidays, and 

(3) the number of hours charged against an 

employee's pay, if any, provided such 

requirement is not inconsistent with a rule 

or form prescribed by the comptroller of 

public accounts pursuant to section 112.003 

of the Local Government Code. 

Very truly yo , LJ A;, h.J= 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAXLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Steve Aragon 

Assistant Attorney General 

P. 5762