THE ATTORSEY GESERAL OF TEXAS

Hanna Opinion No. m-818 Attorney Courthouse Re: Whether acommissioners Honorable Dale Johnson County Johnson County Cleburne, Texas 76031 court is authorized or required to fund an independent audit of the county clerk's office under certain circumstances October29.1987

Dear Mr. Hanna:

You ask:.

Can or must the commissioners court of Johnson County, Texas pay for an independent audit ofthe county clerk's office which was done at the request of the county clerk without prior commissioners court approval inpreparation forhis trial onacharge of theft andwhich resulted inhis acquittal?

You furnish the following factual background:
During the summer of 1986 a misdemeanor indictment charging theft was filed against the county clerk ofJohnson County, Texas. The allegation was that the county clerk had taken money from the office for personal
use. A jury trial was held and the county clerk was found not guilty inOctober, 1986. During the course of preparing for trial, the county clerk hired an independent C.P.A. 'todo anaudit ofhis office. This was done atacost of $7,700.00. After the trial, the county clerk at ameeting ofthe Johnson County commissioners court on December 8, 1986 asked the commissioners to consider reimbursing him for the audit inview ofhis acquittal and inview 

### ofthe many recommendations made by the independent auditor

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resulting in improvements in internal financial controls inthe 

### officeofthe Johnson county clerk's office.

Additional factual information furnished by YOU reflects that there was noreDresentation 

### bvthe county clerk oranvone else that the countv was tobe resDonsible for the audit and there was noknowina acceDtance of benefits bv the county.



### Atthe time ofthe acts inquestion, article 1641, V.T.C.S. (codified by the 70th Legislature as section 115.031 of the Local Government Code), provided in pertinent part:

Anv Commissioners Court, when in its iudoment an imDerative Dublic necessitv exists therefor. shall have authoritv to emDlov adisinterested, cornDetent and exDert public accountant to audit all orany part ofthe books, records, or accounts of the county: or of-v district. countv or precinct officers including auditors'of agents, or employees, the counties, and all governmental units ofthe county, hospitals, farms, and other institutions of the county kept and maintained at public expense, 

### as well as for all matters relating to or affecting the fiscal affairs of'the county. The resolution providing for such audit shall recite the reasons and necessity existing therefor such as that in the judgment of said court there exists official misconduct, willful omission or negligence in records and reports, misapplication, conversion or retention of public funds, failure inkeeping accounts, making reports and accounting for public funds by any officer, agent or employee. . . . (Emphasis added.)

Article 1641 further provides the manner 

### for giving notice of such resolution and its adoption by the commissioners court. Italso requires that any contract entered into by the court for such an audit shall be made in accordance.with the statutes applicable to the letting of contracts by the court.

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Article 1641 is explicit in vesting authority to contract for an audit solely inthe commissioners court. Moreover, article 2351(10), V.T.C.S. (codified by the 70th Legislature as section 115.031 ofthe Local Government Code), provided at the time in question that the commissioners court shall audit and settle all accounts against the county and direct their payment. &S Attorney General Opinion JM-725 (1987). 'Under the scenario you have provided, the commissioners court did not enter into the contract for the independent audit of the county clerk. Clearly, there was noexpress contract upon which the county is liable forpayment of the audit.

Under certain circumstances, acounty orcity can be held liable for benefits under acontract which is not made inconformity with the constitution, state statute or city charter. InHarris Countv v. Emmite, 554 S.W.2d 203 (Tex. Civ. App. -Houston [lstDist.] 1977, writ dism'd), the appellate court found that there was "some evidence" which would support ajury finding that the county "knowingly accepted benefits" where the evidence reflected the following:

Plaintiff and Harris County Commissioners

Court entered into two successive written employment contracts providing that plaintiff would perform consultation services for the county's Manpower project for a stipulated number ofhours at astipulated hourly rate. Athird contract was prepared and the plaintiff, inanticipation of its execution, worked anadditional 50hours, but it was not executed by the Commissioners Court and plaintiff was not paid for that work.

. . . .
The record contains several references to the county's knowledge, through its representatives other than Commissioners Court, of plaintiff's additional services. Mr. Jeff Campbell, then director of the Harris County Manpower program, testified that hehad asked plaintiff to continue with his work pending the authorization of the third contract, since the program#s standard procedure was topay for these over-runs by making the contracts retroactive. co1. Dittman, iiason between Mr. Campbell's

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department and the county judge, was informed of the over-run and approved it.
. . . Mr. Campbell answered the following guestion--

Q. Doyou think that the over-run work
was beneficial tothe county?

A.Absolutely.

544 S.W.2d at 204.

The court stated that the following principles of law govern in such circumstances.

*It isthe settled law inthis State, as established by the decisions ofthis court, that where amunicipality knowingly receives property or services oran agreement which ithad power to enter into asa contract, but which was not legally entered into so as tomake itbinding asacontract, itwill be compelled topay the reasonable value of the property or services so received, ason an implied contract. In such instances it is not correct to say that themunicipality is estopped todeny that the illegal agreement,
as such, is abinding contract. The rule correctly stated is that insuch instances the municipality is liable on an implied contract topay the reasonable value of the property or services furnished to and accepted by it. In the instances under discussion the illegal agreement is not enforced as acontract. To the contrary, the illegal agreement such ' not enforced at all. The %tract Fiat is enforced is one that the law implies, because justice demands that a municipality shall not bepermitted to receive and retain the benefits of anagreement without paying the reasonable value of such benefits.# !Citv fHo St S.W.2: 776"(1::2;. Finn, 139 Tex. 111, 161

544 S.W.2d at 204-05.

Unlike !&unite,under your factual scenario you state there was never any representation by anyone that the

p.3882Honorable Dale Hanna -Page 5 (JM-818)

county was to be liable for the audit and there was no knowing acceptance ofbenefits by the county. It is our opinion that under the foregoing facts the county is not liable under the theory of implied contract for the cost ofthe audit.

You also ask ifthe county isauthorized topay for the audit. That which the commissioner's court could authorize inthe first instance could be ratified by itat
asubsequent date. Wilson v. Countv s.W.2d 393, 397 (Tex. Civ. App. - Carp:: C,'~%n'l9~~~ writ ref'd n.r.e.). This principle of lawwas applied in Anaelina Countv v. Kent, 374 S.W.2d 313, 317 (Tex. Civ. APP. -Beaumont 1963, nowrit), where itwas stated:

The fifth point asserts that since no official action was taken by the Commissioners Court instructing Kent to proceed with the final plans, the Court acts only as abody. and through itsminutes, Kent was entitled to recover only for the sum of $2,000.00 representing his work on the Hill-Burton Fund application. The answer to this is 'thatwhat the Commissioners Court could approve inthe first instance, it may ratify, and its order and resolution of December 30th, 1958, clearly ratified the work hehad done to that time.

This raises the question whether the commissioners court ofJohnson County could have entered into acontract for an independent audit of the county clerk under the provisions of article 1641 at the outset. This would require the commissioners court tomake adetermination of whether in its judgment an imDerative DUbliC necessity existed for such audit. Inaddition the commissioners court must comply with the other requirements of article 1641. It isour opinion that the commisioners court may pay for the audit if it chooses to ratify the authorization of such audit in accordance 'with the requirements ofarticle 1641.

SUMMARY

Johnson County isnot liable topay for 

### anindependent audit of the county clerk of that county which was done atthe request of the county clerk. The commissioners court ofJohnson County may pay for the audit if

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itchooses todo soby ratifying the hiring ofthe independent audit or in accordance with the requirements of article 1641, V.T.C.S. (nowcodified as section 115.031 of the Local Government Code).

JIM MATTOX Attorney General ofTexas

MARY KELLER Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared byTom G. Davis Assistant Attorney General

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