. , 

JIM MAlTOX 

Attorney General 

Suprm Ceurl Bulldlnp 

P. 0. Box 12548 

AUSlirl, -I%. 76711- 2543 

51214762501 

wex 91(y87~1307 

l.IecOpler 5121475.0255 

714 Jackeon. Suite 700 

Dallas. lx. 75202.4508 

2l4n42ao44 

4524 AIberIa Ave., Sulle 150 

El Paso. TX. -2793 

01- 

1001 1exaa. Suite 700 

Nc.uetcn. TX. 77w2-3111 

71Y223a56 

SO5 Bmadray. &It. 312 

L&bock. TX. 7940+34To 

Kef747.5232 

43W N. Tenth, Buile B 

McAllm, lx. 7s501-lw5 

5lmS24547 

200 MaIn Plaza, Sul1e 400 

Ssn Antonlc. lY.. 7S20&2297 

512l2254191 

An Equal oppoftunlcy/ 

Afflmmtlve ActIon Emplw~ 

The Attorney General of Texas 

.k1gust 13, 1984 

Honorable Patrick. If. Simmons 

District-County Attorney 

Limestone county 

P. 0. Box 146 

Groesbeck, Texas 76642 

Dear Mr. Stins: 

Oplnlon No. Jn-192 

Ile: Whether salary payments of 

county employees mmt be approved 

monthly by a c&ssioners court 

You have asked whether payment of salaries to county officials 

require monthly rlpproval either by the comPliseiooers court or the 

county auditor. Although you specifically inquire as to the effect of 

article 1660. V.!!. C.S., other relevant statutes must be considered In 

resolving this qclc:stion. We conclude that each county warrant paid to 

an official or InPployee of the county requires cotissioners court 

approval. ~Tylfr ‘I. Shelby County, 47 F.2d 103 (5th Cir. 1931). The 

county auditor s rsrlor approval is not required. however. 

A comlssiaoers court is required to “audit and settle all 

accounts against the county and direct their payment.” V.T.C.S. art. 

2351(10). All ptlyments must comply with the county’s budget with 

iegard to those or.laries which have been approvid for county officials 

and ,amployees. 1r.T.C.S. art. 689a-11; art. 166611. The funds are 

actually :disbursc!cl by the county treasurer under the direction of the 

comifmioners can’t. Article 1709s. V.T.C.S.; generally requires that 

all county money be deposited with the county treasurer or in the 

county depository and that 

[n]o m~leys shall be expended or withdrawu from 

the cmnty treasury except by checks or warrants 

drawn OII the county treasury . . . . 

V.T.C.S. art. 17OIla. 14. It Is the duty of the county treasurer, upon 

the presentation of a warrant drawn by the proper authority. to 

endorse said wsrrknt for the benefit of the named payee if there are 

sufficient funds znallable. Id. W(d). Thus, the proper authority in 

the payment of ,slaries is-he- commissioners court, whose order 

directing paynenl: , i.e. the, warrant. is attested by the county clerk. 

Id. 14(e). 

- 

Although the county auditor has broad authority to “see to the 

-. . . 

strict l nforc em4 nt or cne law governing county finances.” article 
Honorsble Patrick H. Simmone - Page 2 (JM-192) 

1651, V.T.C.S.. and the potter to disapprove certain claims against the 

county unless contracted for according to law, he does not have the 

authority to require prior approval of salary “claims.” Of course, 

the auditor may refuse to s:o-sign a salary warrant which he believes, 

in good faith, to be unauthorized. Without his signature. the county 

warrant is invalid and camzot be paid by the depository. Attorney 

Caneral Opinion S-149 (1955). The courts have been inconsistent in 

their discussion of a count:r auditor’s authority to disapprove salary 

warrants. The rule to be tlczived from the cases. however. is that if 

the county employee, as a clatter of right, is entitled to be paid a 

sum certain, the county autl:Ltor has a ministerial duty to co-sign the 

warrant and may be subject to a writ of mandamus to do so; however, if 

the auditor has reasonable grounds on which to question the salary 

payments, he may. in his dA,Ecretion , refuse to co-sign the warrant, in 

which event the employee’s remedy is a suit against the county rather 

than a mandamus action agaj,r,st the auditor. In any event, it is clear 

that salary payments are n>t “claims” under articles 1660 and 1661 

which require prior approval by the auditor of such claims before 

action of the commissioners court. Article 1660. V.T.C.S.. provides 

that 

1411 claims, t8illa and accounts against the 

county must be fj.led in ample time for the auditor 

to examine and allprove same before the meetings of 

the comissionerci court. No claim. bill or 

account shall be r.llowed or paid until it has been 

examined and app:cc)ved by the county auditor. The 

auditor shall examine the sams and stamp his 

approval thereon, If he deema it necessary, all 

such accounts, ‘bill [sic], or claims must be 

verified by affi,iwit touching the correctness of 

the same. The auditor is hereby authorized to 

administer oaths l’or the purposes of this law. 

Article 1661, V.T.C.S.. metalwhile. states the following: 

Section 1. E,e shall not audit or approve any 

such claim unl~s it has been contracted as 

provided by law, nor any account for the purchase 

of supplies or materials for the ,use of said 

county or any of !.ts officers, unless, in addition 

to other reqdirrments of law, there is attached 

thereto a requisition signed by the officer 

ordering same an2 approved by the county judge. 

Said requisition must be made out and signed and 

approved in triplicate by the said officers, the 

triplicate to raprlin with the officer desiring the 

p. 839 
Honorable Patrick H. Slwons - Page 3 (JH-192) 

purchase, the &rplicate to be filed with the 

county auditor. cmd the original to be delivered 

to the party from whom said purchase Is to be made 

before any purchase shall be made. All warrants 

on the county tlz!asurer. except warrants for jury 

service, must be-counter signed by the auditor. 

‘Sec. 2. The county judge of a county having an 

auditor may waive by his owu written order the 

approval of the county judge on requisitions. The 

order shall be .recorded in the minutes of the 

Cowissloners (Iourt. If the county judge’s 

approval is waived. all claims must be approved by 

the Conm&Monexs Court in open court. @mphesis 

added). 

The above requirements for the approval of claims do not apply to 

payments out of the county treasury for salaries, judgments against 

the county which are settl.c!d by the commissioners court. or purchases 

under special contract. Attorney General Opinion 8-977 (1977). 

The most recent ca;ltr discussing the auditor’s authority to 

withhold his signature fxom salary warrants Is Smith v. I4cCoy. 533 

S.W.2d 457 (Tax. Civ. App. - Dallas 1976. writ dlsm’d). In this case 

three deputy sberiffs had been suspended without pay by the sheriff 

and later reinstated. TCz sheriff requested the commissioners court 

to award back pay for the period of the suspension. The comdssioners 

court agreed to do so a:iLi issued the warrants, which the auditor 

refused to co-sign, ques:::loning the legality of back payments for 

salary to suspended couhty employees. The deputy sheriffs, as 

plaintiffs, sued for a writ of mandamus against the auditor. seeking 

to compel his co-signaturr:. The court found that the auditor did not 

abuse his discretioh in r8eCusing to co-sign the warrants because the 

matter of back payment prc!clented a “difficult legal question,” or, In 

other words, that the plaintiffs did not as a matter of law have a 

right to the salary payments. 

Where a claimsnt’s r!L(:ht is established as a matter of law, the 

auditor has a ministerial tluty to approve payment. Thus, in the case 

of Jackson v. Leonard, 578 S.W.2d 879 (Tex. Civ. App. - Houston [14th 

Dist.1 1979, writ ref’d n.r.e.), the court held that the audit6r could 

not question the salary increases awarded justices of the peace 

pursuant to the salary Ii::ievance committee procedures. The court 

found that these claims were not claims subject to the auditor’s 

approval authority under articles 1660 and 1661, but that he was under 

a ministerial duty to cc-sign the warrants. See also Nacogdoches 

COUlltY V. Jinkins. 140 S,,\l.Zd 901 (Tex. WV. App. - Beaumont 1940, 

writ ref’d) (the county auditor had no authority to disapprove 

district clerk claim for salary under articles 1660 and 1661). 

p. 040 
Honorable Patrick H. Simmons - Page 4 (JM-192) 

In the case of Guerra v. Weathbrly, 291 S.W.2d 493 (Tex. Civ. 

APP. - Waco 1956, nowrit),: the county had employed an attorney for 

which the conmissioners court had ordered three separate warrants to 

be issued serially as compensation. The county auditor refused to 

co-sign the warrants and t’h: attorney sued for a writ of mandamus. 

The court did not discuss al,ticles 1660 and 1661, as to whether or not 

these payments were claims :subject to auditor approval, but held that 

the conrmlssionera court was r,uthorized to employ an attorney and order 

warrants for his compensatlc~r, to be Issued. 

Earlier opinions from the attorney general’s office have been 

less than ,clear regarding the’ auditor’s authority to disapprove salary 

payments. None of the opinL,ns clearly conclude that the auditor may 

simply withhold his signature if he believes that the expenditure 

would be illegal. Attorney General Opinion O-6624 (1945) concerned 

the employment and payment ol’ an inventory clerk for the county. This 

opinion concluded that, pursuant to article 1651. regarding the 

auditor’s authority to see to the strict enforcement of county 

finances, the auditor would be authorized to inquire as to whether the 

clerk was actually performing duties contracted for by the 

commissioners court. The olbz.nion simply concluded that if the auditor 

believes that an employee is not discharging his duties, he should 

simply refuse to counter-sign the employee’s warrants. Attorney 

General Opinion O-4053 (1541) concerned the authority of a county 

attorney to continue salary payments to an individual not working on 

account of personal injury. This opinion advised that the auditor has 

the authority under article 1660 to require an affidavit from the 

county commissioner for ir>m the injured employee worked, to the 

effect that indeed the individual was employed and working. Ewever, 

as we have discussed above!,, article 1660 does not apply to salary 

payments, since they are not accounts or claims. Similarly. in 

Attorney General Opinion O-5890 (1944). it was found that payrolls 

signed by the respective county officials were’ required to be 

submitted to the county autl:ltor for his approval under article 1660. 

We believe that to the exta!nt that either of these opinions conclude 

that articles 1660 and 1661 require prior approval by the county 

auditor of salary payments, they are in error and are hereby 

overruled. 

In Attorney General Opinion O-5049 (1943). St was concluded that 

the commissioners court’s duty to audit and settle claims against the 

county pursuant to article 2351(10) cannot be delegated to the county 

auditor under a standing o:c&er authorizing the auditor to pay county 

officials and employees wIthJut periodic approval by the comlssioners 

court. In other words, tbe monthly payroll reports prepared by the 

respective county offlcialll are turned in to the commissioners court 

for its approval and its order issuing salary warrants. See V.T.C.S. 

art. 1637. Attorney General Opinion O-5049 concluderthat the 

commissioners court cannot clelegate this responsibility to the county 

p. 841 
Honorable Patrick H. Slmorr - Page 5 (J&192) 

suditor. In summary, we conclude that salaries paid to county 

employees require c~issicl~,ers court approval before any warranxs may 

be issued. The auditor’s prior approval is not required, but his 

co-signature must be affixciil to the warrant before it may be paid. 

SUMMARY 

Salaries paid to county employees require 

approval by tl~ co&ssloners court before 

warrants may be issued but do not require prior 

approval by tht! county auditor, although his 

co-signature is required. 

(l$&Y&b 

Attorney Gsneral of Texas 

TOM GREEN 

First Assistant Attorney Grleral 

DAVID R. RICHABDS 

Bxecutive Assistant Attoane-r General 

Prepared by David Brooks 

Assistant Attorney General 

APPROVED : 

OPINION COMMITTEE 

Rick Gilpio, Chairman 

David Brooks 

Colin Carl 

Susan Garrison 

Jim Moellitiger 

Nancy Sutton 

p. 042