THE ATTORSEY GESERAL OF TEXAS

December 27, 1990

HonorableTerry D. McEachern OpinionNo. JM-1275 DistrictAttorney Hale County Courthouse Re: Authority of a county Plainview,Texas 79072 auditor to prescribe a computerizedaccounting system for elected county officials (RQ-2058)

DearMr; McEachern:

You ask whether a county auditor is authorized to prescribe a particular computerized accountingsystem, includinghardware and software, for the accountsof all elected county officials. You suggest that a county auditor serving
a countywith a population of lessthan 190,000may impose such a requirementpursuant to section 112.001 of the Local Government Code.1

The factspresented to us by your office and the office of the county tax assessor-collector are as follows. The countyhas begun installation of a central computer mainframe to handle all computer operations of the district, county and commissioners courts, and the offices of the districtattorney, 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 whethera county auditor can imposea computer accounting systemupon the accounts of elected offices of county government,especiallywith regard to a county tax assessor.
Section 112.001 of the Local GovernmentCode provides the following:

In a county with a population of less than 190,000,the county auditormay adopt and enforce regulations, not inconsistent with

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

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law or with a ruleadopted [bythe Comptroller of Public Accounts] under Section 112.003, that the auditor considers necessary for the speedy andproper collecting, checkiw ,and accountingof the revenues and other fundsand fees thatbelong to the county.

You note that this provisionallows the implementation of the various duties of the county auditor to audit and
oversee county finances,particularlythe duties imposed by, sections 112.006, 115.001,and 115.002 of the Local Government Code.

Section 112.001 must be contrasted, however, with section 112.002 of the Local Government Code, which describes the authority of the county auditor in a countywith
a population of 190,000 ormore. 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 comparablegrant of authority.

InAttorney GeneralOpinionJM-1099 (1989)we concluded that auditors in countieswith fewer than 190,000 inhabitants may require county officersto supply basic information 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 dealtprimarily withprocedures 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 accommodatesthe auditor's needs, so long as it is not inconsistent with a rule or form adopted by the Comptroller of PublicAccounts pursuant to section 112.003. a Attorney General Opinion JM-1099 (1989). Furthermore, the rules adopted by the auditor should not unreasonably infringe on theduties of other county officers.

If the auditor has determinedthat information regarding county finances can bestbe 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 complywith that determination by installingcompatible programming in their departments. Accordingly,we believe a county auditor serving a county with a population of lessthan 190,000may adopt and enforce regulationspursuant to section 112.001 that incidentally require the use of specifiedcomputerprogramming, so long
as such rules are not inconsistent with law or a rule or form adopted by the comptrollerunder section 112.003.

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However, the auditormay not, as you contend, dictate which equipment county officers shall use. Such a determination is appropriately reserved for the commissioners court in the exerciseof itsdiscretion in approving budgets andmaking contracts for the purchase of equipment and supplies for the county.

In support of your contention,you cite Commissioners Court of Harris Countyv. Fullerton 596 S.W.28 572 (Tex. Civ. App. - Houston [lstDist.] 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 functioningof his office unless the commissioners court found that the auditorhad abusedhis 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 createdby the commissioners court and under its control. The court found that the auditor's duty to prescribe accounting methods, forms and rules regarding countymoney, in conjunction with the authority granted by formerV.T.C.S. article 1650 (now section 84.901 of the Local GovernmentCode), supplied ample authority for its conclusion. Article 1650,however, at the time provided that the auditor couldprovide 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 concerningyour request have been brought to our attentionby a county tax assessor-collector and the Secretary of State's office. The first is whether the auditormay, through specificprogramming of the county computer system, obtain immediate,unobstructed, and unsupervised 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 ofvoters.

We are informedthat the computer system is supervised by the district clerk's office. As you describe it, the system'isprogrammed 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 receivedby county or district officers." We assume this

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means that the computerisprogrammed to allow the county auditor to obtain immediate,**unobstructed, and**  unsupervised
access to information collectedand maintained by other offices that is transmittedto the central computer. The county tax assessor-collectorhas expressed misgivings about this feature of the computersystem.

Section 112.006of the Local Government Code provides that the auditor has "generaloversight" of the books and records of a county, district,or state officer authorized
or required by law to receivemoney 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 investigatethe correctness of these recordsand reports. LocalGov't Code 50 115.001; 115.002.

Sections 112.006and 115.001date back to 1905, when the substance of theseprovisionswas included in the enactment first creatingthe office of county auditor. See Acts 1905, 29th Leg., ch. 161, at 381. Obviously, the legislature 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 inwhich the auditor exercises his or her duties under section115.001. &&a Attorney General Opinions O-6260 (1944);O-2734-A (1940). However, this office has previously determinedthat theseprovisions do not grant the county auditor immediateor unlimited access to the records of county officersand do not divest county officers of reasonable controlover the information maintained in the pursuit of their officialduties.

Attorney GeneralOpinion WW-154 (1957)concluded that "continual access"means that the auditor may be present in office of the countyofficer whose records are to be examined at all timeswhen that office is in operation. It also determined that in the absenceof statutory authorization or the permission of the countyofficer, the auditor could not
remove the records from the office for inspection. The county officer could thereforeprevent the auditor from physically removingthe records.

Similar reasoningshouldapply here. We have identified no statute thatauthorizesthe county auditor to obtain immediate, unlimitedaccess to the computerized records of county officers. The Open Records Act and the Local Government 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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receivedby their offices pursuantto law or in the transaction of public business, includinginformation stored in a computer that serves all countyoffices. Attorney General OpinionJM-1224 (1990). &g V.T.C.S. art. 6252-17a, 5 5(a): LocalGov't Code 5s 203.002, 203.005, 205.002. Neither the commissionerscourt nor an office created by it to manage the computer system may deprive elected county officers of this statutory authority. (1990)

.2 AttorneyGeneral Opinion JM-1224

Accordingly,we do not believe the county auditor may, through computer programming or equipment applications, obtainunlimited access to the records of elected county, district, or precinct officerswithout the prior authorization of the officers. Becausecounty officers are equally bound by sections 112.006 and 115.001,their authorization may not be arbitrarily or unreasonablywithheld.

The final issue raised by this opinion request concerns the storage of voter registration informationon computer by the county tax assessor-collectorin her capacity as registrar,of voters.

We have also learned that the commissioners court recentlyordered the cancellationof the contract for the leaseof computer hardware and softwareused by the county tax assessor-collector's office. The cancellation is effective at the close of businesson December 31, 1990. We are advised that the tax~assessor-collectorserves 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 beendescribed in this opinionwill effectively circumvent her control over access to the records maintained by her office. Attorney General OpinionJM-1224 indicated that elected county officers had implied authority to adopt reasonable security and controlmeasures for any information receivedby their offices and stored electronically. Thus, the county tax assessor-collector in this instancewould be authorizedto adopt controls reasonablydesigned 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 GovernmentRecords Act. See Local Gov't Code § 203.005(g). The opinion also indicatedthat the duty of the commissionerscourt in these circumstances is to facilitate the implementation of reasonable securitymeasures by the elected county officer. &g Local Gov't Code 5 203.003.

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information is maintained with the assistance of the computer hardware and software supplied by a private company. m Elec. Code J 12.001.

Section 18.012of the Election Codeprohibits a county from entering into a contract with a computer services company or other private business for servicesrelated to original, supplemental, or corrected lists of registered voters withoutthe Secretary of State's prior approval of the programs,equipment, or other materialscovered by the contract. The Secretary of State's office informsus that the contractwith the private business entityregarding the computer equipment currently used by the county tax assessor-collectorin her capacity as registrarof voters
was subjectto this provision.

If itappearsthat the commissioners courtwill require the tax assessor-collectorto maintainvoter registration information in the county computer system, this action ordinarilywould not be subject to section 18.012. However, if the county intendsto contract with a private business entity for any service relating to computerizedlists of registered voters, including programming of the county computer to accommodate such information, the contract is subject to section 18.012 and cannotbe entered **into** without the prior approvalof the secretary of state.3

SUMMARY

A county auditor in a county with a populationof less than 190,000may adopt and enforce regulations pursuant to section 112.001of 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 registrationapplication files may be storedelectronically, but their physical security must be maintained): 15.053 (filesofduplicate initial voter registration certificates may be maintained as electronic data processing information);15.054 (files must be keptat all times by registrar in a place and manner that ensures their security). These provisions may implicitlyauthorize 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 RecordsAct grants comparable authority.Honorable Terry D. McEachern - Page 7 (JM-1275)

computer programming by county officers, provided such rules are not inconsistentwith law or a regulation adopted by the Comptroller of Public Accounts pursuant to section 112.003of 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 maintained 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 18.0.12of 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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