THE ATTORSEY GESERAL 

OF TEXAS 

Hanna Opinion No. m-818 

Attorney 

Courthouse Re: Whether a commissioners 

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 

October 29. 1987 

Dear Mr. Hanna: 

You ask:. 

Can or must the commissioners court of 

Johnson County, Texas pay for an independent 

audit of the county clerk's office which was 

done at the request of the county clerk 

without prior commissioners court approval 

in preparation for his trial on a charge of 

theft and which resulted in his acquittal? 

You furnish the following factual background: 

During the summer of 1986 a misdemeanor 

indictment charging theft was filed against 

the county clerk of Johnson 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 in October, 1986. 

During the course of preparing for trial, 

the county clerk hired an independent C.P.A. 

'to do an audit of his office. This was done 

at a cost of $7,700.00. After the trial, 

the county clerk at a meeting of the Johnson 

County commissioners court on December 8, 

1986 asked the commissioners to consider 

reimbursing him for the audit in view of his 

acquittal and in view of the many recommendations made by the independent auditor 

p. 3879 
Honorable Dale Hanna - Page 2 (JM-818) I 

resulting in improvements in internal financial controls in the office of the Johnson 

county clerk's office. 

Additional factual information furnished by YOU 

reflects that there was no reDresentation bv the county 

clerk or anvone else that the countv was to be resDonsible 

for the audit and there was no knowina acceDtance of 

benefits bv the county. 

At the time of the acts in question, 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 a disinterested, cornDetent and exDert 

public accountant to audit all or any part 

of the 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 of the 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 in keeping 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. It also 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. 

p. 3880 
Honorable Dale Hanna - Page 3 (J+818) 

Article 1641 is explicit in vesting authority to 

contract for an audit solely in the commissioners court. 

Moreover, article 2351(10), V.T.C.S. (codified by the 70th 

Legislature as section 115.031 of the 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 no express contract upon which 

the county is liable for payment of the audit. 

Under certain circumstances, a county or city can be 

held liable for benefits under a contract which is not 

made in conformity with the constitution, state statute or 

city charter. In Harris Countv v. Emmite, 554 S.W.2d 203 

(Tex. Civ. App. - Houston [lst Dist.] 1977, writ dism'd), 

the appellate court found that there was "some evidence" 

which would support a jury 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 of hours at a stipulated hourly 

rate. A third contract was prepared and the 

plaintiff, in anticipation of its execution, 

worked an additional 50 hours, 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 he had asked plaintiff to continue with 

his work pending the authorization of the 

third contract, since the program#s standard 

procedure was to pay for these over-runs by 

making the contracts retroactive. co1 . 

Dittman, iiason between Mr. Campbell's 

p. 3881 
Honorable Dale Hanna - Page 4 (JM-818) 

department and the county judge , was 

informed of the over-run and approved 

it. . . . Mr. Campbell answered the 

following guestion-- 

Q. Do you think that the over-run work 

was beneficial to the county? 

A. Absolutely. 

544 S.W.2d at 204. 

The court stated that the following principles of law 

govern in such circumstances. 

*It is the settled law in this State, as 

established by the decisions of this court, 

that where a municipality knowingly receives 

property or services or an agreement which 

it had power to enter into as a contract, 

but which was not legally entered into so as 

to make it binding as a contract, it will be 

compelled to pay the reasonable value of the 

property or services so received, as on an 

implied contract. In such instances it is 

not correct to say that the municipality is 

estopped to deny that the illegal agreement, 

as such, is a binding contract. The rule 

correctly stated is that in such instances 

the municipality is liable on an implied 

contract to pay 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 a contract. 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 be permitted to receive and retain 

the benefits of an agreement without paying 

the reasonable value of such benefits.# 

!Citv f Ho 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. 3882 
Honorable Dale Hanna - Page 5 (JM-818) 

county was to be liable for the audit and there was no 

knowing acceptance of benefits 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 

of the audit. 

You also ask if the county is authorized to pay for 

the audit. That which the commissioner's court could 

authorize in the first instance could be ratified by it at 

a subsequent 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 law was applied in 

Anaelina Countv v. Kent, 374 S.W.2d 313, 317 (Tex. Civ. 

APP. - Beaumont 1963, no writ), where it was 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 

a body. and through its minutes, 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 'that what the Commissioners Court 

could approve in the first instance, it may 

ratify, and its order and resolution of 

December 30th, 1958, clearly ratified the 

work he had done to that time. 

This raises the question whether the commissioners 

court of Johnson County could have entered into a contract 

for an independent audit of the county clerk under the 

provisions of article 1641 at the outset. This would 

require the commissioners court to make a determination of 

whether in its judgment an imDerative DUbliC necessity 

existed for such audit. In addition the commissioners 

court must comply with the other requirements of article 

1641. It is our 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 of article 1641. 

SUMMARY 

Johnson County is not liable to pay for 

an independent audit of the county clerk of 

that county which was done at the request of 

the county clerk. The commissioners court 

of Johnson County may pay for the audit if 

p. 3883 
Honorable Dale Hanna - Page 6 (JN-818) 

it chooses to do so by ratifying the hiring 

of the independent audit or in accordance 

with the requirements of article 1641, 

V.T.C.S. (now codified as section 115.031 of 

the Local Government Code). 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

p. 3884