Opinion No. JM-1249 hasbeenwithdrawn..



### .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 adistrict court over acomFloyd County Courthoune missioners court with regard Floydada, Texas 

### 79235 to the transfer of funds from acounty attorney to a district attorney (RQ-2068)

Dear Ms. McPherson:

You have reguested our opinion about adispute between your office and the district judge relating toyour agreement with 

### FloydCounty to act as county attorney pro tern. For purposes of this opinion, we will discuss the law applicable to the facts asyou have presented them.

In September 1969, the county attorney of Floyd County retired, and after adiligent search, the commissioners court was unable to find aqualified 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 amonthly 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 ofbooks and equipment, and to supplementation of staff salaries. The commissioners court, in executive session, adopted your proposal onOctober 23, 1969. Funds paid toyour office by the commissioners court were placed with aFloydada bank inasegregated account inthe 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 andJuly 1990.

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

Subsequently, 

### theHonorable David Cave, Judge of the 110th District Court, 

### underdate ofJune 20, 1990, issued an "order appointing a **special** auditor."1 

### Theorderreads, inpart:

This Court, pursuant to the powers vested in 'it by the laws of the State of Texas hereby appoints LGvE, HAYS CBlDSICX2514 026. Street, Suite 5, 

### Lubbock, Texas 79423 to perform acomplete audit of all such monies which 

### werepaid out of the Treasury 

### of Floyd County, Texas to the 

### saidBeckie McPherson, including but not limited to the $1,750.00 

### permonth which was 

### paidover to her as hereinabove set out.
All **persons** having access to or control 

### overany and all records, books, receipts, bank statements orother financial documents 

### of whatsoever kind or nature 

### are hereby Ordered to prwide andmake 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: OnJune 18, 1990, the commissioners court entered anunc pro tune **order** ratifying its actions of the previous October and indicating, in **writing,** its agreement with your proposals: and under date 

### ofJune 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, hewas 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 impWereby EElPoWERED AND DIRECTED to employ the

### service8of George Thompson, Attorney atLaw, Lubbock, Texas to file and prosecute suchWrits **or** Petitions as the attorney may

### deemnecessary and proper to 

### effectand 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 toprovide the former, but

### refusedthe latter on the ground that such funds were not subject to commissioners court mupervimion.
Also onJuly 2, 1990, Judge Cave issued awritten order to the county clerk 

### ofFloyd County, instructing her to "turn 

### overto . . . **[the] District**  Clerk the tape recordings 

### ofthe commissioners meeting held onOctober 23, 1990 forher toplace ina

### safedeposit box for safe keeping." The 

### judgealso demanded an opportunity to listen to the tape recording.

You 

### amk first about the propriety of the district judge's order appointing aspecial auditor.2 Section 84.002 of the Local Government Code provides, inpertinent part:

(b) In acounty with apopulation 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 

### officedoes not review judicial 

### orders. m Open Records **Decision No.**  **415 (1984).**  In this case, however. the iudae isactinu inan 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 

### forthis finding;
(B) the order is certified to the district judges: and
(Cl **the district**  judges find the reason stated b 

### thecommissionerscaurttobe good end muff cient.

1 Floyd County isa county with apopulation 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 

### ofan auditor isto appoint an individual to fill the position of regular county auditor. Section 04.003 

### speaksofthe selection of ma-5 as acounty auditor; section 04.004 5pecifie5 a *term 

### ofoffice5 

### oftwo years: and section 84.006 describes theminimum gualificationm for the position interns 

### of 'Ia ESBQD." (Emphasis added.) Nothing in chapter 64 or elsewhere gives any indication that the legislature contemplated the appointment by adistrict judge of an auditing firp rather than an individual, **nor** that itcontemplated the appointment of an auditor **for** the specific and limited purposes set but inJudge **Cave ’** **s** order ofJune 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 95115.041 (independent audit in count! without 

### officeof county auditor), 115.042 (joint special audits by counties of less than 25,000 population). Section 115.031, however, lodges the dimcretion'to employ aspecific purpose auditor squarely inthe co~issioners court. The district judge isnot apart 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. 6656Honorable Wecky B.WcPhermon -Page 5 (JM-1249)

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

In **Attorney** General Opinion JW-708 (1987), we maid that adistrict court Way exercise "general supervisory control5 over the actions of aco55iSSiOner6 court only when a lawsuit 15brought indistrict court seeking rmview of the commissioners aourt'm actions. The opinion noted that the courts have Wade clear that the legislature 

### hasnot wemtablimhed a procedure 

### forinvoking 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, nowrit): SS~ al5Q 1G. **Braden,** m ative
w 415-16 (1977). We conclude that the district judge 

### waswithout authority to appoint a speaial auditor in the circummtances you describe.

You also 

### askwhether 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 inhis appointment, we know ofno legal basis to assess any charges against the county 

### forservices performed by the auditor.

**You next**  **ask** whether the action of the district judge inobtaining physical custody ofthe tape recordings 

### of the commi5sioners court executive session violated the Open Xeetinas **A&.** article 6252-17. V.T.C.S. Section 2Aof the statuti prwides, inpart: '

(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 ortape shall be available for in camera inspection by the judge of adistrict court if litigation has been initiated involving 

### analleged 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 ed agenda or tape for at least two

1 yearm after the date ofthe meeting.

E$gg'g !;A contemplate5 that a district judge ;D; 

### oemerain5pection~ 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 itsproper custodian and is required topreserve it "for at least two

### year8after the date of the meeting.*
The statute further provides that
0) No individual, corporation, orpartnership shall, without lawful authority, knowingly make public the certified agenda or tape reaording of

### a **meetfng** or that po*ion of ameeting that was closed under of this **Act.** authority

Thus, itappears both that the district judge exceeded his authority in taking possession 

### ofthe tape and that the county clerk acted inviolation of **subsection** (h) inreleasing it

### tohim. 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 itmight 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 aregular county auditor under the requisite ntatutory provisions, chapter 84of 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 acounty clerk to **turn** over possession

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

**of** 5tape recording 

### ofanexecutive 5e55ion **of** ameeting 

### ofacommi55ioner5 court.

JIM MATTOX **Attorney** General ofTexas

**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 byRick Gilpin Asmimtant **Attorney** Genmral

p. 6659