. ,

**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 ofTexas

**.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 mustbe considered In resolving this qclc:stion. Weconclude 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 moneybe deposited with the county treasurer or in the county depository andthat

[n]o m~leys shall be expended or withdrawu from the cmnty treasury except by checks or warrants drawn OIIthe 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 namedpayee 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 lnforcem4ntor cne law governing county finances.” articleHonorsble Patrick H. Simmone- Page 2 (JM-192)

1651, V.T.C.S.. and **the** potterto 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 mayrefuse 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. Therule to be tlczived from the cases. however. is that if the county employee, as a clatter of right, is entitled to be paid a sumcertain, the county autl:Ltorhas a ministerial duty to co-sign **the** warrant andmaybe subject to awrit of mandamusto doso; however, if the auditor has reasonable grounds on which to question **the** salary payments, hemay. in his dA,Ecretion
, refuse to co-sign the warrant, in which event the employee’s remedyis a suit against the county rather than amandamusaction 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 mustbe fj.led in ample time for the auditor to examine andallprove samebefore 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)vedby the county auditor. The auditor shall examine the sams and stamp his approval thereon, If he deemait 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,eshall 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 mustbe madeout and signed and approved in triplicate by the said officers, the triplicate to raprlin with the officer desiring **the**

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

purchase, the &rplicate to be filed with the county auditor. cmdthe original to be delivered to the party fromwhomsaid purchase Is to be made before any purchase shall be made. All warrants on the county tlz!asurer. except warrants for jury service, mustbe-counter signed by the auditor.

‘Sec. 2. The countyjudge of a county having an auditor maywaive by his owuwritten order the approval of the countyjudge onrequisitions. The order shall be .recorded in the minutes of the Cowissloners (Iourt. If the county judge’s approval is waived. all claims mustbe approved by the Conm&Monexs Court in open court. @mphesis added).
Theabove requirements for the approval of claims donot 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. Thecomdssioners 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 mandamusagainst the auditor. seeking to compel his co-signaturr:. The court found that the auditor did not abuse his discretioh in r8eCusingto co-sign the warrants because the matter of back paymentprc!clenteda “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 1660and 1661, but that hewas 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 1660and 1661).

p. 040Honorable 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. Thecourt did not discuss al,ticles 1660and 1661, **as** to whether or not these paymentswere claims :subject to auditor approval, but held that the conrmlssionera court was r,uthorized to employanattorney andorder 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. Noneof 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 employmentand paymentol’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.** Theolbz.nionsimply 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 andworking. 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. Webelieve 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&erauthorizing the auditor to pay county officials andemployees 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. 841Honorable 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 mustbe affixciil to the warrant before it maybe paid.

SUMMARY
Salaries paid to county employees require approval by tl~ co&ssloners court before warrants maybe issued but do not require prior approval by tht! **county** auditor, although his co-signature is required.

# (l$&Y&b

**Attorney Gsneral**  **of** Texas

TOMGREEN First Assistant Attorney Grleral

DAVIDR. RICHABDS Bxecutive **Assistant Attoane-r**  General Prepared by David Brooks **Assistant Attorney**  General

APPROVED

: OPINIONCOMMITTEE
Rick Gilpio, Chairman David Brooks Colin Carl Susan Garrison JimMoellitiger Nancy Sutton

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