Opinion No. JM-1249 has been withdrawn. 
. 

.n>x x.t- November 29, 1990 

.,rToRsml- aPNRRAL 

Honorable Becky B. McPherson Opinion No. JR-1249 

District Attorney 

Ployd County Re: Supervisory authority of 

110th Judicial District a district court over a comFloyd County Courthoune missioners court with regard 

Floydada, Texas 79235 to the transfer of funds 

from a county attorney to a 

district attorney (RQ-2068) 

Dear Ms. McPherson: 

You have reguested our opinion about a dispute between 

your office and the district judge relating to your agreement with Floyd County to act as county attorney pro tern. 

For purposes of this opinion, we will discuss the law 

applicable to the facts as you have presented them. 

In September 1969, the county attorney of Floyd County 

retired, and after a diligent search, the commissioners 

court was unable to find a qualified successor. You, as 

district attorney for a four-county district, then made a 

written proposal to the commissioners court that you would 

undertake misdemeanor proeecution responsibilities in 

exchange for a monthly payment of $1750.00 plus an additional amount of approximately $2165.00 per year to cover office 

supplies, travel, and liability insurance. You specifically 

agreed that no portion of this money would be used to 

supplement your salary, but it could be applied to the 

purchase of books and equipment, and to supplementation of 

staff salaries. The commissioners court, in executive 

session, adopted your proposal on October 23, 1969. Funds 

paid to your office by the commissioners court were placed 

with a Floydada bank in a segregated account in the name of 

We&y UcPherson, District Attorney, County Trust Account.w 

Each misdemeanor case you handled was accompanied by an 

"order appointing special prosecutor," signed by the county 

judge, pursuant to article 2.07 of the Code of Criminal 

Procedure. You note that more than 100 such orders were 

issued between October 1989 and July 1990. 

p. 6653 
Honorable Becky B. McPherson - Page 2 (JM-1249) 

Subsequently, the Honorable David Cave, Judge of the 

110th District Court, under date of June 20, 1990, issued an 

"order appointing a special auditor."1 

The order reads, in part: 

This Court, pursuant to the powers vested 

in 'it by the laws of the State of Texas 

hereby appoints LGvE, HAYS C BlDSICX 2514 026. 

Street, Suite 5, Lubbock, Texas 79423 to 

perform a complete audit of all such monies 

which were paid out of the Treasury of Floyd 

County, Texas to the said Beckie McPherson, 

including but not limited to the $1,750.00 

per month which was paid over to her as 

hereinabove set out. 

All persons having access to or control 

over any and all records, books, receipts, 

bank statements or other financial documents 

of whatsoever kind or nature are hereby 

Ordered to prwide and make available for 

audit, copying and inspection to the said 

auditor at the places and times designated by 

the said auditor. 

The Auditor shall make much audit and 

examination with all deliberate speed and 

shall make a full and complete report to this 

court. 

If at any time during the performance of 

such duties the auditor may need access to or 

copieu of any documents or things and may 

need Writs from this Court to procure any 

1. Almost concurrently, two other incidents occurred: 

On June 18, 1990, the commissioners court entered a nunc pro 

tune order ratifying its actions of the previous October and 

indicating, in writing, its agreement with your proposals: 

and under date of June 29, 1990, Mr. Larry Craddock, General 

Counsel for the Office of Comptroller, sent a letter to 

Judge Cave which indicated that after reviewing relevant 

documents, he was persuaded that you had not acted in any 

way to preclude receipt of your state salary as district 

attorney. 

P. 6654 
' Aonorable De&y 0. McPherson - Page 3 (JM-1249) 

document or thing then he imp Wereby EElPoWERED 

AND DIRECTED to employ the service8 of George 

Thompson, Attorney at Law, Lubbock, Texas to 

file and prosecute such Writs or Petitions as 

the attorney may deem necessary and proper to 

effect and carry out the audit, the 

of this order. 

subject 

On July 2, 1990, the mpecial auditor made an in-person 

demand upon you for all financial records relating both to 

the disputed funds and to funds received from the state. 

You agreed to provide the former, but refused the latter on 

the ground that such funds were not subject to commissioners 

court mupervimion. 

Also on July 2, 1990, Judge Cave issued a written order 

to the county clerk of Floyd County, instructing her to 

"turn over to . . . [the] District Clerk the tape recordings of the commissioners meeting held on October 23, 1990 

for her to place in a safe deposit box for safe keeping." 

The judge also demanded an opportunity to listen to the tape 

recording. 

You amk first about the propriety of the district 

judge's order appointing a special auditor.2 Section 84.002 

of the Local Government Code provides, in pertinent part: 

(b) In a county with a population of less 

than 10,000: 

(1) the district judges may appoint a 

county auditor if the judges determine that 

the county*5 financial circumstances warrant 

the appointment: and 

(2) the district judge5 shall appoint a 

county auditor if: 

2. This office does not review judicial orders. m 

Open Records Decision No. 415 (1984). In this case, 

however. the iudae is actinu in an administrative caoacitv. 

#S &* of Nat. , 141 -S.W.id 

764 (Tex. Civ. App. - 1940), rev'd on the area , 146 

S.W.2d 170 (Tex. 1941). 

p. 6655 
. Aonorable Becky B. McPherson - Page 4 (JM-1249) 

(A) the oommismionerm court find5 that a 

county auditor is necessary to oarry out 

county business and enters an order in its 

minutes stating the reason for this finding; 

(B) the order is certified to the 

district judges: and 

(Cl the district judges find the reason 

stated b the commissioners caurt to be good 

end muff 1 cient. 

Floyd County is a county with a population of less than 

10,000. 

Chapter 84 of the Local Government Code, when read as a 

whole, make5 clear that the only authority conferred on a 

district judge with regard to the appointment of an auditor 

is to appoint an individual to fill the position of regular 

county auditor. Section 04.003 speaks of the selection of 

ma -5 as a county auditor; section 04.004 5pecifie5 a 

*term of office5 of two years: and section 84.006 describes 

the minimum gualificationm for the position in terns of 'Ia 

ESBQD." (Emphasis added.) Nothing in chapter 64 or 

elsewhere gives any indication that the legislature contemplated the appointment by a district judge of an auditing 

firp rather than an individual, nor that it contemplated the 

appointment of an auditor for the specific and limited 

purposes set but in Judge Cave’s order of June 28, 1990. 

Furthenuorm, Section 115.031 of the Local Government 

Code pnen provide for specific purpose audits by ma disinterested, competent and expert public accountant.5 See als 

Local Gov*t Code 95 115.041 (independent audit in count! 

without office of county auditor), 115.042 (joint special 

audits by counties of less than 25,000 population). Section 

115.031, however, lodges the dimcretion'to employ a specific 

purpose auditor squarely in the co~issioners court. The 

district judge is not a part of this process. 

Finally, it might be contended that the following 

constitutional provision justifies the appointment under 

consideration here: 

The District Court shall have appellate 

jurisdiction and general supervisory control 

war the County com515510ner5 Court, with 

much exceptions and under such regulations as 

may be prescribed by law. 

p. 6656 
Honorable Wecky B. WcPhermon - Page 5 (JM-1249) 

Tex. Conmt. a*. V, i 8. 

In Attorney General Opinion JW-708 (1987), we maid that 

a district court Way exercise "general supervisory control5 

over the actions of a co55iSSiOner6 court only when a 

lawsuit 15 brought in district court seeking rmview of the 

commissioners aourt'm actions. The opinion noted that the 

courts have Wade clear that the legislature has not wemtablimhed a procedure for invoking the general supervisory 

control of dimtrict courts wer actions of commi5sioners 

courts. * Saa SOOtt V. B, 292 S.W.td 324, 328 (Tex. 

1956) 8 vd CO. V. Be Fregh 

-t 506 S.W.Zd 931 (Tex. Civ. App. - 

Tyler 1974, no writ): SS~ al5Q 1 G. Braden, m 

ative 

w 415-16 (1977). We conclude that the district judge 

was without authority to appoint a speaial auditor in the 

circummtances you describe. 

You also ask whether the county is liable for charges 

incurred by the county auditor. Since the appointment of 

the auditor warn void, and the commissioners court had no 

part in his appointment, we know of no legal basis to assess 

any charges against the county for services performed by the 

auditor. 

You next ask whether the action of the district judge 

in obtaining physical custody of the tape recordings of the 

commi5sioners court executive session violated the Open 

Xeetinas A&. article 6252-17. V.T.C.S. Section 2A of the 

statuti prwides, in part: ' 

(a) In lieu of the requirements for maintaining a certified agenda am provided in 

Subsections (a), (b), and (c) of this section, a governmental body may make a tape 

recording of the proceedings which shall 

include an announcement made by the presiding 

officer at the beginning and end of the 

meeting indicating the date and time. 

(4 The certified agenda or tape shall be 

available for in camera inspection by the 

judge of a district court if litigation has 

been initiated involving an alleged violation 

of this Act. The court upon entry of a final 

judgmeningy admit the ;;rti;At;eagenda '1; 

tape evidence or 

pa* . . . . 

p. 6657 
* Honorable Becky B. McPhermon - Page 6 (JM-1249) 

(f) The overnmental body shall preserve 

the certif 1 ed agenda or tape for at least two 

yearm after the date of the meeting. 

E$gg'g !;A 

contemplate5 that a district judge ;D; 

oemera in5pection~ of the tape only 

litigation has been initiated involving an alleged violation 

of this Act.” Under the circumstances you describe, no such 

litigation had been initiated at the time of the judge's 

order of July 2, 1990. The ngovenmental body" that is the 

subject of the tape is its proper custodian and is required 

to preserve it "for at least two year8 after the date of the 

meeting.* 

The statute further provides that 

0) No individual, corporation, or partnership shall, without lawful authority, knowingly make public the certified agenda or 

tape reaording of a meetfng or that po*ion 

of a meeting that was closed under 

of this Act. 

authority 

Thus, it appears both that the district judge exceeded his 

authority in taking possession of the tape and that the 

county clerk acted in violation of subsection (h) in releasing it to him. We note, however, #at subsection (j) could 

provide an affirmative defense to the county clerk. 

Your final guestion asks whether Judge Cave should 

recuse himself in future litigation over these matters. 

Since no litigation ham been initiated, we decline to 

speculate about what possible course it might take, and in 

accordance therewith, about the propriety of recusal. 

BUMMARX 

A district judge has no authority to 

appoint a *special auditor" to conduct a 

limited inguiryr his authority is limited to 

the appointment of a regular county auditor 

under the requisite ntatutory provisions, 

chapter 84 of the Local Government Code. 

district judge also lack5 the authorityA 

absent pending litigation under the Ope; 

Weetingr Act, article 6252-17, V.T.C.S., to 

order a county clerk to turn over possession 

p. 6658 
* Honorable Secky B. McPherson - Page 7 (JM-1249) 

of 5 tape recording of an executive 5e55ion 

of a meeting of a commi55ioner5 court. 

JIM MATTOX 

Attorney General of Texas 

MARY NNIJIER 

First Amsimtant Attorney General 

IOU x!cREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STRAKLEY 

Special 'Umistant Attorney General 

RBNEAHIcxs 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Rick Gilpin 

Asmimtant Attorney Genmral 

p. 6659