P 

P 

THE ATTORNEY GENERAL 

OF TEXAS 

July 8, 1987 

Eonorable Chet Brooks 

Chairman 

Eealth and Human Services Committee 

Texas State Senate 

P. 0. Box 12068 

Austin, Texas 78711 

Dear Senator Brooks: 

opinion No. JM-740 

Re: Selection of a county 

auditor in Harris County, 

and related questions 

You ask about the validity of the selection of a Harris County 

Auditor under article 1645a-10, V.T.C.S.. when the election is by less 

than two-thirds vote of the district judges having jurisdiction in the 

county. You state this problem has arisen when a number of the 

district judges have failed to attend a meeting scheduled for the 

selection of an auditor. 

The situation which gives rise to your question is stated by you 

as follows: 

In December 1986, at a meeting called for the 

purpose of selecting the Harris County auditor, 23 

of the 59 district judges having jurisdiction in 

the county at that time net to consider the 

appointment. The vote at the meeting was 27 for 

and 2 against the reappointment of the acting 

county auditor. There were no other nominations 

for the position. 

You ask the following questions: 

1. When selected by the method described 

above, can the county auditor lawfully assume the 

duties of the office without receiving a vote of 

two-thirds of the district judges in the county? 

2. What is the method provided by law for 

selection of an auditor in a county with over 2 

million In population when no nominee receives the 

vote of two-thirds of that county’s judges? 

3. Are meetings held pursuant to article 

1645a-10 governed by the Open Meeting law of this 

state? 

p. 3443 
Bonorable Chet Brooks - Page 2 (m-740) 

In December 1986 the method for selecting an auditor in counties 

having a population of 2,000,OOO or more was controlled by article 

1645a-10, V.T.C.S., which provided in relevant part: 

The office of county auditor shall be filled by 

the candidate receiving a two-thirds vote of the 

district judges having jurisdiction in the county 

at a meeting held for that purpose and the vote of 

a district judge shall not be counted unless he is 

present at the meeting. 

V.T.C.S. art. 1645a-10. 81. 

In light of the fact that there was not a two-thirds vote of the 

district judges having jurisdiction in the county you question whether 

the nominee could assume the office of auditor for Harris County. 

Under the scenario you have given it is our opinion that there was not 

a valid selection of an auditor since two thirds of the district 

judges in the county did not vote for the nominee. Thus, the person 

selected could not lawfully assume the duties of the office. However, 

we have been furnished with a copy of au order dated December 9, 1986 

which reflects that at a meeting held on that date the nominee 

received the votes of 54 of the judges of the district courts having 

jurisdiction inI Harris County, clearly more than the required 

two-thirds vote. 

1. The order of December 9. 1986 reflects: 

On the 9th day of December, 1986. the undersigned 

Judges of the District Courts having jurisdiction in Harris 

County, Texas, assembled pursuant to a special meeting 

called to elect a County Auditor for Harris County, Texas, 

under the provisions of Article 1645a-10 V.C.S. as amended. 

Upon motion of Judge Blanton, seconded by Judge 

Cartwright, duly put and carried, IT IS ORDERED that J. F. 

Flack be, and he is hereby, appointed as County Auditor of 

Earris County, Texas for a term beginning January 1, 1987 

and ending December 31, 1988, and until his successor is 

appointed and shall have qualified. [salary provision 

omitted] 

The Clerk of the District Courts shall record this 

order in the Minutes of the District Courts and shall 

certify it to the Commissioners Court of Earris County, 

Texas, for recording in its Minutes and for such further 

orders as are required by law. 

The order is followed by a listing of the 59 district courts 

having jurisdiction in Harris County with 54 of the judges affixing 

their signatures above their respective courts. 

p. 3444 
F Honorable Chet Brooks - Page 3 (JM-740) 

C 

The present method for selecting an auditor in Harris County is 

addressed by Senate Bill No. 914, Acts 1987, 70th Leg., ch. 192, 

signed by Governor Clement8 on May 20. 1987 and contains the proviso 

“that this Act take effect and be in force from and after Its passage, 

and It is so enacted.” Article 1645a-10 was amended by Senate Bill 

No. 914 to read as follows (new language is underlined): 

Sec. 1. In any county having a population of 

2,000,000 or more, according to the last preceding 

federal census, the district judges having jurisdiction in the county, shall nominate candidates 

for the office of county auditor. Each judge may 

nominate as many candidates as he wishes. The - 

district judges shall hold a meeting for the 

purpose of electing a county auditor. The county 

auditor shall be elected by a two-thirds vote of 

the district judges who are present and voting at 

that meeting, providing that at least a majority 

of the district judges are present. 

You also ask if meetings held pursuant to article 1645a-10 are 

governed by the Open Meetings Act of this state. In Attorney General 

Opinion .I&340 (1985) , it was noted that prior opinions had established that an entity will be covered by the Open Meetings Act if it 

is a “goveromental body” which holds “meetings” as those terms are 

defined in the act. Section 1 of article 6252-17, V.T.C.S., defines 

“meeting” and “governmental body.” It provides: 

(a) ‘Meeting’ means any deliberation between.a 

quorum of members of a governmental body at which 

any public business or public policy over which 

the governmental body has supervision or control 

is discussed or considered, or at which any formal 

action is taken. It shall not be construed that 

the intent of this definition is to prohibit the 

gathering of members of the governmental body in 

numbers of a quorum or more for social functions 

unrelated to the public business which Is conducted by the body or for attendance of regional, 

state, or national conventions or workshops as 

long as no formal action is taken and there is no 

deliberation of public business which will appear 

on the agenda of the respective body. 

(cl ‘Governmanta body’ means any board, 

commission. department, committee, or agency 

within the executive or legislative department of 

the state, which is under the direction of one or 

more elected or appointed members; and every 

Commissioners Court and city council in the state, 

and every deliberative body having rule-making or 

quasi-judicial power and classified as a 

p. 3445 
Eonorable Chet Brooks - Page 4 (JM-740) 

departmant, agency, or political subdivision of a 

county or city; and the board of trustees of every 

school district, and every county board of school 

trustees and county board of education; and the 

governing board of every special district 

heretofore or hereafter created by law. 

A meeting of the district judges of Earris County for the purpose 

of selecting a county auditor does not constitute a board, commission. 

department. committee, or agency within the executive or legislative 

department of the state nor is it a department, agency, or political 

subdivision of a county or city or the governing board of a special 

district created by law. See Attorney General Opinion MW-28 (1979). 

It is our opinion that a Sting of the district judges of Harris 

County for the purpose of selecting a county auditor is not a meeting 

of a "governmental body" as that term is defined in section l(c) of 

article 6252-17 and does not come within the scope of the Open 

Meetings Act. 

SUMMARY 

Prior to the amendment of article 1645a-10, 

V.T.C.S., by the 70th Legislature, the office of 

county auditor of Harris County was filled by the 

candidate receivtng a two-thirds vote of all the 

district judges having jurisdiction in the county. 

The amendment to article 1645a-10 passed by the 

70th Legislature no longer requires a two-thirds 

vote of all the district judges of Harris County, 

but instead provides that the district judges 

having jurisdiction in Earris County shall elect 

the county auditor by a two-thirds vote of the 

district judges who are present and voting at the 

meeting, providing that at least a majority of the 

district judges are present at such meeting. 

Senate Bill 914. Acts 1987, 70th Leg., ch. 192, 

signed by Governor Clement8 on Hay 20, 1987 

(effective upon enactment). No alternate method 

is provided for selection of an auditor in Harris 

County. A meeting of the. district judges of 

Harris County for the purpose of selecting a 

county auditor, is not a meeting of a "governmental body" as that term is defined in section 

l(c) of article 6252-17, V.T.C.S.. and does not 

come within the scope of the Open Meetings Act. 

/;jgb 

Attorney General of Texas 

p. 3446 
Honorable Chet Brooks - Page 5 (JM-740) 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STBARLCl 

Special Assistant Attorney General 

RICK GILPIN 

Chairman. Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

p. 3447