. .

Bon. Wiley L. Chmthun Opinion #o. M-756 DietrictAttorney

. 24th JudicialDistrict Re: Duty, if any, of County Cuero, *exas .77954

. Auditor to examine county jail records pertaining to the ccmfinemenit

and release Dear Mr: Cheathsxnr of county prisoners.

In your letter requestingan official opinion of this office,you state that the 24th Judicial District for which you serve as District Attorney, consists of five counties. You statefurther that the Sheriff of one **of** these countieshas appsrentlybeen releasing soms of the prisoners from the county ,jail prior to the expiration **of** their lawful sentences. You desire that a review of county jail reaards bs undertaken in order to aetennine to what extent this may have **occurred** so that the matter may be taken before the Grand Jury. You inquire as to the proper statutory.~proceaures to be'follawed and also expresslyask.the followingquestion in this connectionr

*Whether it is the auty of the County Auditor of the county in question to examine county jail records pertaining to the confinement and release of county'prisonersin aa= to determinewhether the Sheriff has released prisoners from the county jail prior to the expiration of their lawful sentences?" Acceding to a standarareferencework, *an'audit' is an examinationby a qualified **expert** of the financial statements and accounting'records **of** a business enterprise,person, agency or institutionin oraer to enable him (the auditor) to arrive at ana report an informed opinion as to the material accuracyand reliabilityof the financial statements examined.* q xianc@& (4th aa. 1968, Ronald Press .Company)

. Similar aefiaitiOn8'appearin Black's Law Dictfodarv (4th Ea. ~_ 1957 1 l

-3691-lion.

Wiley. L. Cheatham,page 2 (M-756)

Both of the cited authoritiesappear to be in general agreement in restrictingthe comon usage of the word *audit* to a review **of** financialrecords and supportingevidence.

While Article 1646a,Vernon's Civil Statutes., provides that the Comiseioners' Court of any county under twenty-five! thousandpopulation *may have an auait made of'all the books of the county" and *the district judge or grand jury may order said audit if either so desires,*this statutewas repealed in 1955. Acts 54th Leg. R. S. 1955, Ch. 414, p. 1.117, 1118, Sec. 4. Alao, see Attorney General Opinion O-2684 (1940).holding it unconstitutional.

Under Article 1641, Vernon's Civil Statutes, the Le9- islaturehas provided that,

This Commissioners' Court, when in its judgment an imperativepublic necessityexists therefor, shall have authoritvto employ a disinterested,campetent and **expert** public accouhtant to audit all or anv **wrt** of the books. records, or accounts of the counti

... as well as **for** all matters relating to or affectingthe fiscal affairs of the county. The resolutionproviding **for** such audit shall ret- it0 the reasons and necessityexisting therefor such
as that in the iudcsaent of said court there zts officialmisconduct

...W (Emphasisadded.1

statutewas intended.togive the Commissioners'Court the power to secure an audit **of** the county records of county **of ficers**  either independentof or in addition to any other audit conducted by a county auditor. It is not limited to county finances or fiscal affairs, for the statute expressly confers authority to audit "all or any part **of** the books, records or accounts of the countyn ana concerns all officers, agents,. or employeesand county units and institutions "a0 well as **fbr** all mstters* involving ufiscalaffairs.*

-3692-mn. Wi1ey.L. cheatham,page 3 (M-756)

When any sheriffpermits a prisoner committed to jail to remain out of jail without authority,**he** violatesArticle 2.18, 1040, 1046, Texas Code of Criminal Procedure;Articles 317, 318, 319, 323,324,'Texas Penal Code, and Article 5116, Vernon's Civil Statutes. uev v. Stat& 14 Tex.',400(1855); pufek v. Harrison 289 S.W. 741 (Tex.Civ.App.1927, no writ]7 Rx Parte Wyatt, 29 Cr. R. 398, 16 S.W. 301 (1891). It ie the duty of the Sheriff to give notice to'the district or county attorney,where'there be one , on the first day of each faonth, listing the names of all prisbners in his custody and showing the authorityunder whichhe detains them. Article 2.19, Texas Code of criminal Procedure. Consequently,the'.district or county'attorney,

may, when he discwers that prisoners have been unlawfully let.out of jail by the Sheriff, call such to the attentionof the Commissioners~Court **for** their appropriate action,which may include, in the **exercise** of their discretion, invokingthe'prwis$ans of Article 1641. In the alternative or in addifion to an audit **of** the official county records of the **Sheriff,** the D$str$ct or County Attorney may take the matter before the.giand jury **for** their appropriateaction, **which** might inaludea subpoena.ofall the' pertinent records of ,the Sheriff.
Article 5118a,Vernon's civil 8tatuteo, providing for conmutation**for** qood OonauOt**of** prisoners,, its ~forfeiture, .andthe keeping of a record of same, directs as follows:

*

....The sheriff shall keep or cause'tobe ,kepta conduct record in card or ledger form and a C&lendar.cardon each inmate showing all forfeitures .ofaommutationtime and the **reasons** therefor."

"We have concluded that the official prisoner records requiredto **be** keptby the sheriff in this connection,however, are not in the nature.of records relating to fiscal~mattersor county financeswhich the County Auditor is required to audit under the statutes'pertainin~ to'his'dutiesand authority.

-3692:.mm. Wiley L. Cheatham.page 4 (M-756)

Articles 1645, et. seq.. Vernon's Civil Statutes,set out the specificduties and authority of the office of County Auditor. An overallreview of these statutes confirms that the legislature,'s

intentwas to give to the office of County Auditor statutoryduties and responsibilities pertaining to the examination and audit of such records and property as mav relate to 7. The County Auditor's office has been granted 'no general authoritywhich would authorize or rewire such officer to search through the records of other county officials except as such a searchmight be required for verificationpurposes under good accountingprocedures in connectionwith a financialaudit, and, in this cotinection, it should be noted8
"The powers and duties of public officer8 are quite generallypresaibed by the (&) constitution aad statutes,and, subject to constitutional limitations,these matters are under the control **of** the legislature:in many instances the ~constitution expresslygives it power to prescribe the duties of particularofficers. The term 'duties' in such a want to the leuislaturecomwehends the further

p r a authoritv,and the lesislative act id a of owe e will be looked to for the authoritv of the officer. as well as for a definition of his duties. Powers and duties are coexteneive,and an officer has no authoritvto **perform** an act in respect of which no dutv has bee made to devolve on him." 47 TexJur: **2d** 138-39,Gblic Officers, Sec. 105. (Emphasisadded).
"Public officers

... posses8 onlv such powers as are exvresslv conferred on them bv law or are necessarilv implied from the **lowers** 80 conferred. Thev cannot lesallv oe **f** m acts not authorized bv existins law." Lq.'a?pp. 139-40, Sec. 106.

Powers .entrusted

to county officers generally emanate from the legislaturealone. Consequently, I'.

. . the measure and limit **of** those powers are to be found in the statutes,and whim a power claimed for them is not, conferredby some statute it must be held not to exist

. . .I' Tarrant Countv v. Ratt&kiq Utle Co., 199 B.W.2d 269, 273 (Tex.Civ.App.1947, no writ).

-3694-Ron. Wiley L. Cheatham,.page5 (M-756)

pursuant to the above discussion,we answer your first **question** as follows:

The County Auditor has no general authority to **examine** the records of public officialsexcept as may be required for verificationpurposesunder good accountingprocedures in con-, nectionwith a financialaudit. Therefore, the County Auditor has no duty orauthority to examine county jail records psrtaining to the confinementand release of county prisoners unless he ia seeking informationas to the use or misuse. of county funds. .,.,

Your second question inquires aa to who, if anyone. has the authority to compel the County Auditor to examine county jail **records** pertaining to the confinementa,nd release of county prieone4rs.

Since we have found in response **to** your first question that the County Auditor would have no duty'to examine county jail records pertainingto the confinementand release of county jail records under the facts presented (no alleQatfon of misuse of carnty funds), it follows that the County Auditor cannotbe compelledto perform the examination of such records--i.e.a public official cannotbe cospelled to undertake a job that it is not **his** auty to perform.

SUMMARY

1. When he discovers that prisoners have been unlawfully let out of jail by the Sheriff, the District or County Attorney may call such to the attention

.of the Cormissioners' Court for their appropriateaction, which may include, in the exercise **of** th6'i.r disaetion, invoking the provisions of Article 1641, V.C.S. In the alternative **or** in addition thereto, he may present such matter~s

to the grand jury ~fortheir appropriate .action,

which may include a subpoena of all the pertinent **records of**  the Sheriff.

.

-369%.x&u.

Wiley L. Cheatham.page 6 (M-756)

2. ft is not the duty of the County Auditor to examine county jail records pertaining to the confinemsntand release of county prisoners in order to determineonly whether the Sheriff has releasedprisoners**from the**  County Jail prior to the expirationof their lawful sentences. The County~Auditor

would have no duty or authority to audit such records unless he were seeking.informationas to the use or misuse of county funds.
3. Since the County Auditor has no duty to ~exasinethese records under the facts presented (no allegationof misuse of county funds) it follows .thsthe cannotbe compelledto undertake an exambmtitan of these records.

G6mtral Of TexSS **Prepared** by Larry J. craddock and,AustinBray : AssistantAttorney Generals

AFPRovBDr OPIWIOW CCMWITTBE

**Xerns** Taylor, Chairman W. E. Allen, Co-Chairman Sam Jones Jim Swearingen Dyer noore 8. J. Aronson

**MEADItF.GRIFFIN :**  **Staff** Legal As8istant

ALFREDpxecutiveAssistant

**XOLA WxIm**  First Assistant -3696-