Honorable Sam Burris

District Attorney 79th JudicialDistrict Alice, Texas Ooi,nion No. S-149 .~-
Re: Duties of County-Auditor, approving claims,~bills and accounts against the county and.related questions. DearMr. Burris:

You have requested an opinion.on the following questions:

1; Are theprovisions of Articles 1660' and 1661 of Vernon's.~Civil Statutes, providing that'all bills and accounts shall.be examined and approved by the County~ Auditor'and that?

all warrants on the County Treasurer except warrants for jury service must be signed by the County Auditor-,

mandatory?

,. 2; .Ifclaims~

arepaid'by the Commissioners' Court without the'approval'of the.County Auditor, will it constitute an unlawful expenditure of county funds?

3~. 'Ifwarrants other than warrants for jury~service'are'issued~'dh the County Treasurer without being countersigned by the County'Auditor+ is the County Depository authorized to cash such warrants?

4. May'moneys paid outon bills not approved by the County Auditor be recovered‘.by the county?

5’. May moneys paid out on warrants not

, countersignedby the County Audi.tor be recovered?

The office of County Auditor was originally created by the Legislature~in 1905-bythe enactment of 'theprovisions of SenateBill 2’58, Acts~ of the 29th Legislature, Regular Session, 1905, Chapter 161, Page 381. Section 1 of the originalAct required each county having therein a 'city with
a populationof 25,000 orover to. have a County Auditor. Section 2 provided that the.Auditor.shallbe appointed by the Judges of the County and District Courts having jurisdictionHon. Sam Burris, Page 2 (S-149)

in the county. Section 12 provided that:

."A11warrants on the county-treasurer, except warrants for jury service, must be countersignedby the county auditor.

. . "

Section 15 provided:

"All'claims,bills and accountsagainst the county must be filed'in ample time for the auditor to examine and approve same before the.meetings of the.commissioners-coiirtr.~and no claim, bill or adcount shallAbeallowed'orpaid until same shall have been examinedand.approvedby the county auditor. It shall'be the.dutyof the auditor to examine. and stamp his approval thereon. If deemed necessary all such accounts~

must be verifiedby.affidavittouching the correctnessof same. before some person authorized to ~administeroaths~, and the auditor is hereby authorized to administeroaths."

A study of the originalAct togetherwith ~thevarious amendments to date reveals that the legislative,purposein creating the office'ofCounty Auditorwas to provide~~a democratic system~of'checksand balances in relation to county finances. Therefore/the appointmentwas left to the Judges having jurisdictionin the.countyrather thanthe Commissioners' Court. The statutory duties prescribed for ,theCounty Auditor
are first;to'assist inthe preparationof,the county budget and second,.toact as a~watchdogover the county funds.

If a Commissioners'Court could capriciously refuse to seat the County Auditor or abolish.the office of'county Auditoras~Was~attempted~in Duval County, (In Dan Tobin, Jr. eta1 v. Donato Serna; now pending in the Court of Civil Appealsforthe FourthSupreme'Judicial'District;the trial court etijdined-~the County Judge and County Commissioners 'of Duval County~from Interferingwith'Donato Serna's.occupandy end enjoyment of thebffice of~coiinty Auditor,of Duval County
or from preventing~him~~from~assuming Ethel duties~

of County '~ Auditor of'Duva1 County to.%hich officehe- had been appointed by the' District Judge)it would be a~ mockery'of~not'only the' purposeof this us~eful and worthtihile'office,'but would 'in fact allow 'theCommissioners'Court to dictate to the person who would be checking upon it. The history of the legislative enactmentsreveal that the Legislaturehas never permitted this to happen,. As you will recall, during the past year in DuvalCounty we have seen the amazing philosophy advanced that those charged and under investigationshould be allowed'to sit
on the grand jury actually investigatingthemselves, and thatHon. Sam Burris, Page 3 (S-149)

they should be prosec.uted'by a person of theirmownchoice, and selection a.3

well as to be tried by a Judge of their own ,choice and:selection. :

In answering your questions;~ it must be keptin' mind'the'legislativepurpose and history in the creation of the office of County Auditorand his statutory'duties'prescribed by the Legislature;.Article 1645,~ Vernon"sCivi1 : Statutes, requires that Duval County have a County Auditor.

Articles 1666 and 1661 of Vernon's ~1~11 Statutes contain almost'

the identical language contained ,inthe -' ~~ oqiginal 1905 Act above quoted. These Articles now provide:

Article~1660;

"All claims, bills and accountsagainst the county.mustbe'filed in ample,'time for the auditor to examine andapprove,same before.the meetings-of the commissioners~court. iJo~claim;'bill or account shall be.allowed orpaid:'until ithas been examined and approved by the .countyauditor.. The audit& shall examine the same and stamp, his approval thereo~n. -~ If he de~ems:it

necessary, all,such accounts, bill,:or claims .mustbe verif.ied..by affidavit~fouching 'the correctness-ofthe same.. -'The audito'rishereby authorized to.administer oaths forthe 'purposes o'f this iaw.~"

Article 1661.

"He shall not,~audit or approve any such claim unless it has ~beencontracted as provided by law, nor any accountfor the purchase of supplies or materials for-the use of saidcounty or any of itsofficers, unless, in addition to other requirements of law, there is attached thereto a requisition signed by the officer

~ordering'same and approved by the co~untyjudge. Said requisition must be made~out and signed and approved in triplicate by the said officers, the triplicate to remain with the officer desiring the purchase, the duplicate to be filed with the county auditor, and the original to be delivered to the party from.whom said purchase is to~be made before any purchase shall be made. All warrants on the county.treasurer.except warrants for jury service, must be~,countersigned by the county auditor."

Article 1660 specificallyprohibits~ the payment of any claim, bill or account until it has been approved byc

Hon. Sam Burris, Page 4 (S-149)

the County 'Auditor. Article 1661 requires thatall~ warrants
on the'county Treasurerexcept warrants for jury service be countersignedby the County Auditor. !l!he language in these Articles is-written in mandatory.termsand it is our opinion that its provisions are mandatory.

Since Article 1660 prohibitsany claim, bill or .' account from being paid~until it has been examined and approved by the County Auditor, payment of such~claimswould constitute
an unlawful expenditureof county'moneys if the same has not been approved by the County Auditor. Wyatt Metal'&.Boiler Works v. Lipscomb, 87 S.W.2d 331 (Tex.Civ.App..l935,error ref.).

In ~WyattMetal & Boiler Works v. Lipscomb, supra the Court stated:

right~&bring :suitagainst the county~ on his.~claim is the same whenthe~.claimhas been re'jected by the county auditor as it is when the claim hasp ~beenrejected by the ~omis$ioners '~courtin counties which.have no ;auditor;~'

Falls County v. Bdzeman, supra;'Andersonv. Ashe, supra. Inthe light of the above authorities, hitis clearthat' thee plaintiff inerror had a right to Pile'suitto establish its~claim‘againstthe .'county when't~e.'Budi~or~'refused~ tom approve':its:

claim;..but: the ~~~ts~wiIl"n~t'~dompel'b~~~alldamus~ anauditor to approve'such a claim. Anderson v: Ashe, supra. It
seems to this court that the county auditoracted wisely in refusing to approve the claim of plaintiff in ,error"under,the.factqas disc~losed by the'record, a part only of .which.wasset out above. Such facts show~a total disregard for the law with respect to the purchase.of supplies-for the county, and by refusing to a~pprove

the claim, plaintiff in error was relegated to the courts where all partiesrights may beHon. Sam Durris, Pag'e5 (S-V-Q) .'

determined and allowed in accordancewith all of the facts developed on.a~ hearing. The Ireliefsought in this proceeding .isa'mandamus‘only,and we are not here..concerned.

nor called upon to determine-the rights of:plaintSffP

in error'to any otherrelief. Togrant the mandamus,

in this suit would,have the.effect of forcingFannin~ county to pay, a'.claim,which

had not been;approvedby anyone.with' power..to.allow,9the same,sin& such cl~aim' was rejected by:the.c.ounty auditor and thencommissioners'courthad:no ~jUris- : diction .toallow it, and their attempted approval
was a nullity."

In'order.:to:~insure the county against, the unlawful expenditure of.county,funds,'%~the Legislaturehas provided in Article"1661 that all-warrants except warrants for jury ser-- vice'mu~,F~'~~~ounter~ig~ed.‘.~jjr.the County Auditor.. Therefore, any warrant not.countersignedl.by the County Auditor is invalid. :, Y"

Such'invalidwarrant may not be cashed ~bythe County Depository and.the cashing'of an in&lid'warrantby the Depository'would~constitutenegligence :onthe part of'~ the County Depository as,. a~matterof~ law; Padgett vi Young County ,204 S.W. 1046 (Tex.Civ..App. 1918, error dism. 111 Tex. 96, 229 S.W. 459).

In view ~ofthe foregoing,we answer your questions specificallyas follows:

1. The provisions.ofArticle 1660 and.1661, Vernon's Civil Statutes, are mandatory.

2. The payment of claims, bills or accounts which'have not been examined and approved by the County Auditor constitutes unlawful expenditure of county funds.

. 3. The dounty Depository is not authorized to cash warrants other than'warrants for jury service which have not been countersignedby the County Auditor.

4: Moneys paid'out on claims, bills, or accounts which have not been approved by the County Auditor may be recovered by the county. /

5. Moneys paid out on warrants which have not been countersignedby the County Auditor may be recovered.Ron. Sam Rurris, Page 6 (S-149)

SUMMARY
!Ihe.provisions

of Articles 1660 and 1661 Vernon's Civil Statutes,are mandatory and require the payment of.claims,bills or accounts against the county~to be examinedand approved by the County Auditor and require that all warrants on the County Treasurer except warrants for jury service to be countersignedby the County Auditor. Moneys paid out on claims, bills or accounts which have not been approvedby the County Auditor and moneys paid out on warrants which have not been countersigned~bythe County Auditor may be recoverd.