. . 

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

Dietrict Attorney 

. 24th Judicial District 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 requesting an 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 counties has 

appsrently been 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 

expressly ask.the following question 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'prisoners in aa= to 

determine whether the Sheriff has released prisoners 

from the county jail prior to the expiration of 

their lawful sentences?" 

Acceding to a standara reference work, *an'audit' 

is an examination by a qualified expert of the financial statements and accounting'records of a business enterprise, person, 

agency or institution in oraer to enable him (the auditor) to 

arrive at ana report an informed opinion as to the material 

accuracy and reliability of the financial statements examined.* 

q xianc@& (4th aa. 1968, Ronald Press .Company) . 

Similar aefiaitiOn8'appear in Black's Law Dictfodarv (4th Ea. ~_ 

1957 1 l 

-3691- 
lion. Wiley. L. Cheatham, page 2 (M-756) 

Both of the cited authorities appear to be in general 

agreement in restricting the comon usage of the word *audit* 

to a review of financial records and supporting evidence. 

While Article 1646a, Vernon's Civil Statutes., provides 

that the Comiseioners' Court of any county under twenty-five! 

thousand population *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audit if either so desires,* this statute was repealed in 1955.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- 

islature has provided that, 

This 

Commissioners' Court, when in its judgment an imperative public necessity exists therefor, 

shall have authoritv to 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 

affecting the fiscal affairs of the county. The 

resolution providing for such audit shall ret- it0 

the reasons and necessity existing therefor such 

as that in the iudcsaent of said court there zts 

official misconduct . ..W (Emphasis added.1 

statute was intended.to give the Commissioners' Court the 

power to secure an audit of the county records of county officers either independent of 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 

employees and county units and institutions "a0 well as fbr 

all mstters* involving ufiscal affairs.* 

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

When any sheriff permits a prisoner committed to jail 

to remain out of jail without authority, he violates Article 

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 authority under 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 

attention of the Commissioners~ Court for their appropriate 

action, which may include, in the exercise of their discretion, 

invoking the'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 appropriate action, which might 

inalude a subpoena.of all the' pertinent records of ,the Sheriff. 

Article 5118a, Vernon's civil 8tatuteo, providing 

for conmutation for qood OonauOt of prisoners,, its ~forfeiture, 

.and the keeping of a record of same, directs as follows: 

* . . . .The sheriff shall keep or cause'to be 

,kept a conduct record in card or ledger form and a 

C&lendar.card on each inmate showing all forfeitures 

.of aommutation time and the reasons therefor." 

"We have concluded that the official prisoner records 

required to be keptby the sheriff in this connection, however, 

are not in the nature.of records relating to fiscal~matters or 

county finances which the County Auditor is required to audit 

under the statutes'pertainin~ to'his'duties and authority. 

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

Articles 1645, et. seq.. Vernon's Civil Statutes,set 

out the specific duties and authority of the office of County 

Auditor. An overall review of these statutes confirms that the 

legislature,'s intent was to give to the office of County Auditor 

statutory duties 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 authority which would authorize or rewire such 

officer to search through the records of other county officials 

except as such a search might be required for verification purposes under good accounting procedures in connection with a 

financial audit, and, in this cotinection, it should be noted8 

"The powers and duties of public officer8 are 

quite generally presaibed by the (&) constitution aad statutes, and, subject to constitutional 

limitations, these matters are under the control of 

the legislature: in many instances the ~constitution 

expressly gives it power to prescribe the duties of 

particular officers. The term 'duties' in such a 

want to the leuislature comwehends the further 

id e a of p owe r a authoritv, and the lesislative act 

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 

authoritv to 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. (Emphasis added). 

"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 legislature alone. 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, conferred by 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,.page 5 (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 officials except as may be required for 

verification purposes under good accounting procedures in con-, 

nection with a financial audit. Therefore, the County Auditor 

has no duty orauthority to examine county jail records psrtaining to the confinement and release of county prisoners 

unless he ia seeking information as 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 confinement a,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 pertaining to the confinement and release of county 

jail records under the facts presented (no alleQatfon of misuse 

of carnty funds), it follows that the County Auditor cannot be 

compelled to perform the examination of such records--i.e. a 

public official cannot be 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 appropriate action, 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 ~for their 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 

confinemsnt and release of county prisoners in 

order to determine only whether the Sheriff has 

released prisoners from the County Jail prior to 

the expiration of their lawful sentences. The 

County~Auditor would have no duty or authority 

to audit such records unless he were seeking. information as to the use or misuse of county funds. 

3. Since the County Auditor has no duty to 

~exasine these records under the facts presented 

(no allegation of misuse of county funds) it follows 

.thst he cannot be compelled to undertake an exambmtitan of these records. 

G6mtral Of TexSS 

Prepared by Larry J. craddock and,Austin Bray : 

Assistant Attorney 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 

ALFREDpxecutive Assistant 

XOLA WxIm 

First Assistant 

-3696-