Honorable Sam Burris 

District Attorney 

79th Judicial District 

Alice, Texas 

Ooi,nion .~- No. S-149 

Re: Duties of County-Auditor, 

approving claims, ~bills 

and accounts against the 

county and.related quesDearMr. Burris: tions. 

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; .If claims~ arepaid'by the Commissioners' 

Court without the' approval'of the.County Auditor, 

will it constitute an unlawful expenditure of county 

funds? 

3~. 'If warrants 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 

, countersigned by the County Audi.tor be recovered? 

The office of County Auditor was originally created 

by the Legislature~in 1905 -by the enactment of 'the provisions 

of Senate Bill 2’58, Acts~ of the 29th Legislature, Regular 

Session, 1905, Chapter 161, Page 381. Section 1 of the 

original Act required each county having therein a 'city with 

a population of 25,000 orover to. have a County Auditor. 

Section 2 provided that the.Auditor.shall be appointed by the 

Judges of the County and District Courts having jurisdiction 
Hon. Sam Burris, Page 2 (S-149) 

in the county. Section 12 provided that: 

."A11 warrants on the county-treasurer, 

except warrants for jury service, must be 

countersigned by 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 shall Abe allowed'or paid until same shall 

have been examined and.approved by the county auditor. 

It shall'be the.duty of the auditor to examine. and 

stamp his approval thereon. If deemed necessary all 

such accounts~ must be verified by.affidavittouching 

the correctness of same. before some person authorized 

to ~administer oaths~, and the auditor is hereby 

authorized to administer oaths." 

A study of the original Act together with ~the various amendments to date reveals that the legislative ,purpose in creating 

the office'of County Auditor was to provide~~a democratic 

system~of'checks and balances in relation to county finances. 

Therefore/the appointment was left to the Judges having 

jurisdiction in the.county rather thanthe Commissioners' 

Court. The statutory duties prescribed for ,the County Auditor 

are first;to'assist inthe preparation of,the county budget 

and second,.to act as a~watchdog over 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 Fourth Supreme' Judicial'District; the trial 

court etijdined-~the County Judge and County Commissioners 'of 

Duval County~from Interferingwith'Donato Serna's.occupandy 

end enjoyment of the bffice 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' 

purpose of this us~eful and worthtihile'office,'but would 'in 

fact allow 'the Commissioners ' Court to dictate to the person 

who would be checking upon it. The history of the legislative enactments reveal that the Legislature has never permitted 

this to happen,. As you will recall, during the past year in 

Duval County we have seen the amazing philosophy advanced that 

those charged and under investigation should be allowed'to sit 

on the grand jury actually investigatingthemselves, and that 
Hon. Sam Burris, Page 3 (S-149) 

they should be prosec.uted'by a person of their mown choice, 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'legislative purpose 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 ,in the -' ~~ 

oqiginal 1905 Act above quoted. These Articles now provide: 

Article ~1660; 

"All claims, bills and accountsagainst the 

county.must be' 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 .county auditor.. The audit& shall 

examine the same and stamp, his approval thereo~n. -~ 

If he de~ems:it necessary, all,such accounts, bill,:or 

claims .must be verif.ied..by affidavit~fouching 'the 

correctness -of the 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 ~been contracted as provided by law, nor 

any accountfor the purchase of supplies or materials 

for-the use of said county 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~unty judge. 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 specifically prohibits~ the payment 

of any claim, bill or account until it has been approved by 
c 

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

the County 'Auditor. Article 1661 requires thatall~ warrants 

on the'county Treasurerexcept warrants for jury service be 

countersigned by the County Auditor. !l!he language in these 

Articles is-written in mandatory.terms and it is our opinion 

that its provisions are mandatory. 

Since Article 1660 prohibits any claim, bill or .' 

account from being paid~until it has been examined and approved 

by the County Auditor, payment of such~claims would constitute 

an unlawful expenditure of 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 ~Wyatt Metal & Boiler Works v. Lipscomb, supra 

the Court stated: 

right ~&bring :suit against the county~ on his.~claim 

is the same whenthe~.claim has been re'jected by the 

county auditor as it is when the claim hasp ~been rejected 

by the ~omis$ioners ' ~court in counties which.have no 

;auditor;~' Falls County v. Bdzeman, supra;'Andersonv. 

Ashe, supra. Inthe light of the above authorities, 

hit is clearthat' thee plaintiff inerror had a right to 

Pile'suitto establish its~claim‘against the .'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 .factq as disc~losed by the'record, a 

part only of .which.was set 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 be 
Hon. Sam Durris, Pag'e 5 (S-V-Q) .' 

determined and allowed in accordance with all of the 

facts developed on. a~ hearing. The Irelief sought 

in this proceeding .is a'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 then commissioners' courthad:no ~jUris- : 

diction .to allow it, and their attempted approval 

was a nullity." 

In'order.:to:~insure the county against, the unlawful 

expenditure of.county,funds,'%~the Legislature has 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'invalid warrant may not be cashed ~by the 

County Depository and.the cashing'of an in&lid'warrantby 

the Depository'would~constitute negligence :on the 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 ~of the foregoing, we answer your questions 

specifically as follows: 

1. The provisions .of Article 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 countersigned by 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 countersigned by 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 examined and approved by the 

County Auditor and require that all warrants on 

the County Treasurer except warrants for jury 

service to be countersigned by the County Auditor. 

Moneys paid out on claims, bills or accounts which 

have not been approved by the County Auditor and 

moneys paid out on warrants which have not been 

countersigned~by the County Auditor may be recoverd.