P

P 

### THE ATTORNEY GENERAL OF TEXAS
July 8, 1987

Eonorable ChetBrooks Chairman Eealth and Human ServicesCommittee Texas State Senate P. 0. Box 12068 Austin, Texas 78711

Dear SenatorBrooks: opinionNo.JM-740

Re: Selectionof a county auditor in Harris County, and related questions

You ask about **the** validity of the selection of a Harris County Auditorunder article 1645a-10,V.T.C.S..when the election is by less than two-thirdsvote of thedistrict judgeshaving 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 selectionof an auditor.
The situationwhich gives **rise** to your question is statedby you as follows:

In December 1986, at a meeting called for the purpose of selectingtheHarris 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 theposition.

You ask the followingquestions:

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-thirdsof 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 Inpopulationwhen no nominee receives the vote of two-thirdsof that county’s judges?
3. Are meetings held pursuant to article 1645a-10governedby the Open Meeting law of this state?

p. 3443BonorableChet Brooks - Page 2 (m-740)

In December 1986 themethod for selectingan 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 relevantpart:

The office of county auditor shall be filled by the candidate receiving a two-thirdsvote of the district judges having jurisdiction in the county at ameetingheld for thatpurpose and thevote of a district judge shallnot be countedunlesshe is present **at** themeeting.

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

In light of the fact that therewas not a two-thirdsvote of the district judgeshaving jurisdiction in the countyyou questionwhether the nominee could assume the office of auditor for Harris County. Under the scenarioyou have given it is our opinion that therewas 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 couldnot lawfullyassume theduties of the office. However, we have been furnishedwith a copy of au order datedDecember 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 courtshaving jurisdiction inI Harris County, clearly more than the required two-thirdsvote.

1. The order of December 9. 1986reflects:

On the 9th day of December, 1986. the undersigned Judges of theDistrict Courts having jurisdiction in Harris County, Texas, assembled pursuant to a special meeting called to elect a County Auditor for Harris County, Texas, under theprovisions ofArticle 1645a-10V.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 requiredby 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 signaturesabove theirrespective courts.

p. 3444F HonorableChet 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, signedby Governor Clement8 on May 20. 1987 and contains the proviso “that thisAct take effect andbe in force from and after Itspassage, and It is so enacted.” Article 1645a-10was amended by Senate Bill No. 914 to read as follows (newlanguage isunderlined):

Sec. 1. In any county having a population of 2,000,000ormore, according to the lastpreceding federal census, the district judges having jurisdiction in the county, shall nominate candidates for the office of county auditor. Each judgemay 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-thirdsvote of the district judgeswho are present andvoting at that meeting, providing that at least a majority of the district judges arepresent.

You also ask if meetings held pursuant to article 1645a-10 are governedby the Open Meetings Act of this state. In Attorney General Opinion .I&340 (1985), it was noted that prior opinions had established that an entitywill be coveredby the OpenMeetings 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 “governmentalbody.” It provides:

(a) ‘Meeting’means any deliberationbetween.a quorum of members of a governmentalbody at which any public business or public policy over which the governmentalbody has supervision or control is discussedor considered,or atwhich 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 attendanceof regional, state, or national conventions or workshops as long as no formal action is taken and there is no deliberation of public businesswhich will appear on the agendaof the respectivebody.
(cl ‘Governmanta body’ means any board, commission. department, committee, or agency within the executive or legislativedepartment of the state,which is under the direction of one or more elected or appointed members; and every CommissionersCourt and city council in the state, and every deliberativebody having rule-making or quasi-judicial power and classified as a

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

departmant, agency, or political subdivision of a county or city; and theboard of trusteesof every school district, and every county board of school trustees and county board of education; and the governing board of every special district heretofore orhereafter createdby law.

A meeting of the district judges of Earris County for thepurpose of selectinga county auditordoes not constitutea 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 "governmentalbody" as that term is defined in section l(c) of article 6252-17 and does not come within the scope of the Open MeetingsAct.

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 filledby the candidate receivtng a two-thirdsvote of all the district judgeshaving 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 judgeswho are present andvoting at the meeting,providing that at least amajority 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 comewithin the scope of theOpenMeetings Act.



# /;jgb

AttorneyGeneral ofTexas

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

MARY KELLER ExecutiveAssistantAttorneyGeneral

JUDGE ZOLLIE STBARLCl SpecialAssistantAttorneyGeneral

RICK GILPIN Chairman.OpinionCommittee Preparedby Tom G. Davis AssistantAttorneyGeneral

p. 3447