.. .

THE ORNEY GENE

OF WAS

Mr. W. G. Walley, Jr. OpinionNo. WW-1086 Actina CriminalDistrictAttornev JeffeFson County Beaumont, Texas Re: Authority of a District Attorney or a Grand Jury to employ a public accountant to audit county records, municipal records, records of private corporationsor individuals. DearMr. Walley:
You have asked the following questions:
1. Does the DistrictAttorney and/or Grand Jury have authority to employ a public accountantto audit

A. Records of the County;
B. Records of incorporatedmunicipalities;

c. Records of private corporations; and/or
D. Records of private individuals? 2. If so, from what fund should these servicesbe paid?
It is clearly the duty of the grand jury to inquire into all alleged felony violationsof the law, Article 3S1, Vernon's Code of Criminal Procedure. Generally investigationsare made for the grand jury by the local law enforcementofficials,mainly the Sheriff's office, local police officers, constablesand the DistrictAttorney's office. The Department of Public Safety also provides assistance for the grand jurywhen requested. There is no specific statutory authority giving the grand jury powerto expend county funds for the purpose of employing an accountant, since said function is generally handled for the grand jury by other officialswho have such funds available;however, if the grand jury has funds pursuant to Section 3 of Article 637, Vernon's Penal Code, the grand jury is clearly authorized to expend said funds for the purpose of investigatingviolations of any of the provisions of the Penal Code. Section 3 of Article 637of Vernon's Penal Code provides:..

Mr. W. G. Walley, Jr., Page 2 

### (~~-1086)

"Section 

### 3. If upon a hearing of the matter referred to in Article 

### 636,Penal Code of Texas, the Justice of the Peace, County Judge or District Judge before whom the cause is pending, shall determine that the property seized is a gaming table, bank or gambling paraphernaliaand equipmentper se, or if the Justice of the Peace, County Judge or District Judge shall determine that the same, or any part thereof,was in fact used as equipmentor paraphernalia,fora gamblinghouse or was being used for gaming purposes, then anymoney or coins seized in or with said equipment or paraphernalia shall, by order of the Court, be declared confiscated,and the Court shall cause the same to be delivered to the State of Texas or any political subdivisionthereof, or to any State institutionto be used by it for its own use and benefit, or the Courtmay in its discretion order such money or coins to be delivered to the Grand Jury of ,the Countv in which such eauioment or DaraDhernaliawas seized. to be-used by said Grand Jurv for the purpose of investi-~- gating the violations of the naming laws of this State or for the purpose of investipatingviolations of any of the provisions of the Penal Code of this State. At the end of the term of each Grand Jurv and before the discharne of the same, the Grand Jury shall-reportto the District judge impanellingthe same the amount of money received under the provisions of this Section and an accountingof all funds expended, and the balance of such funds, if any, shallbe turned over to the Clerk of said District Court, to be held by said Clerk until the next Grand Jury is impanelled,at which time suchmoney will be turned over and delivered to such succeedingGrand Jury." (Emphasisadded.)
It has been contended that Section 24 ~ofArticle 

### 16 of the Constitutionof the State of Texas would prohibit the use of forfeitures for any use other than for laying out and working public roads and the building of bridges. Section 24 reads:

"The Legislature shallmake provision for laying out and working public roads, for the building of bridges, and for utilizing fines, forfeitures, and convict labor for all these purposes." This office has held that when funds derived under Article 

### 636,637, Vernon's Penal Code, are turned over to the CommissionersCourt, they must go into the road and bridge fund of the county. Attorney General's OpinionV-469. This opinionbased its conclusionupon examinationof Section 24 of Article 

### 16 of the Constitution,andArticss 

### 1626and 

### 1628,Vernon's CivilStatutes. Since Articles

### 1626and 1628 clearly cover the problem involved, the discussion as to the applicabilityofMr. W. G. Walley, Jr., Page 3 

### (W-1086)

of Section 

### 25 of Article 

### 16 of the Constitutionwas surplusage. The view expressed in Attorn,ey General'sOpinion V-469 was in line with Attorney General's Opinion 0-6805. Section 24 of Article 

### 16 should not be construedas requiring that all fines, forfeituresand uses of convict labor be designated for use upon public roads and bridges only.
It has been the long standingpolicy of this State to utilize fines, forfeitures and convict labor for purposes other than work on the public roads and bridges.
The Texas Liquor ControlAct by Article 666-30,Vernon's Penal Code, provides that forfeituresbe used by the Texas Liquor Control Board in the operation of that Board. Fines collected for violation of highway laws are not set aside for the exclusivepurpose of maintaining roads and bridges. See Article 6701b, Section 144, Vernon's Civil Statutes. The Supreme Court in H. & T. Ry. v. Herrin Brothers, 63 Tex. 256 (18851.held that Section 24 of Article 16 of the Constitution referred-to such fines and forfeitures as 'underthe law may'inure to the public. This holding would include the civil fines and forfeitures provided in our Anti-Trust Laws and the Business CorporationAct. Civil fines and penalties collected for violation of the Texas Business CorporationAct, the Texas~Anti-TrustLaws and other laws of this nature are not put into the road and bridge fund of any county and are not expended for the roads and bridges of the State, but are appropriated for other purposes. The "InterpretiveCommentary" contained in Vernon's Constitution of the State of Texas, Annotated under Section 24,Article 16, indicates that at the time the constitutionalprovision under discussion was passed, the prison populationhas trebled in a singleyear and there was a great need for employmentof convicts and that the consitutional provisionwas passed to provide "additional"employment for convicts. This provisionhas never been interpretedto mean that convicts could not be used for other purposes. See Article 674, Vernon's Code of Criminal Procedure and Article 6864,Vernon's Civil Statutes.
It is clear from the historicalbackground of Section 24, Article 16, that said sectionwas intended to grant the Legislature additionalpowers, and was not intendedto limit the powers of the Legislatureto utlize fines, forfeitures and convict labor for other purposes.+
For further discussion on this point see Attorney General's OpinionNo. WW-1079.. -

Mr. W. G. Walley, Jr., Page 4 

### (W-1086)

In addition to the above fundswhich are available to the grand jury, the grand jury is also authorized to request that the District Court appoint a committee of three to examine the finances of the county. Article 

### 1638,Vernon’s Civil Statutes. These committeemenare entitled to receive three 

### ($3)Dollars a day, not to exceed five 

### (5)days, for the performance of their duties, saidmoney tobe paid out of the county treasuryupon certificateof the District Judge. Article 

### 1640,Vernon’s Civil StatutesI

Upon examination of the statutes and laws of this State we can find no other authorityuponwhich an expenditure of funds, for the purpose of hiring accountants in the course of an investigation,can be made by a grand jury. Where there is no authority on the part of the county or the government agency involved to enter Into the contract, a recovery against the county, or general fund thereof,based upon quantummeruitwil.1not lie. Pritchard andAbbott v. McKenna, 

### 343 S.W.2d 752 (Clv.App., 1961,writ pending). Therefore, the general funds of the countywould not be liable for any contract entered Into by the grand jury for auditingpurposes on the basis of contractual obligationor quantummeruit, since the grand juryhas no authority to commit the general funds of the county,but is only authorized to spend the funds, If any, acquiredby virtue ofArticle 

### 637,Vernon’s Pena1 Code

. Article 52-16Ob,Vernon’s Code of Criminal Procedure, sets up the office of Criminal DistrictAttorney for JeffersonCounty. Under Article 3899, Section (b),Vernon’s Civil Statutes, a CriminalDistrict Attorney is authorized to charge to his county all reasonableexpenses necessary in the proper and legal conduct of his office. SaidArticle provides: “Each officernamed in thisAct, where he receives

a salary as compensation for his services, shall be entitled and permitted to purchase or charge to his county all reasonable expensesnecessary in the proper and legal conduct of his office

. . .” When a criminaldistrict attorneybelieves that thework in questionwould be a material aid to his office in preparing criminal cases for trial itwould be proper for him to have certain services performed. Attorney General’s Opinion

### WW-874.

Article 3899, Section (b) continues: (I 9

. .Suchexpenses tobe passed on, pre,determined and allowed in the time and amount, as nearly as possible,Mr, W. G. Walley, Jr., Page 5 (~~-1086) by the CommissionersCourt once eachmonth for the ensuingmonth, upon the applicationby each officer, stating the kind, probableamount of expenditureand the necessity~for the expenses of his office for such ensuingmonth, which application shall,before presentation to said court, first be endorsedby the county audftor, if any, otherwise the county treasurer, only as to whether funds are available for payment of such expenses. . o

TSuchpurchases shall be made by each officer, when allowed, only by requisition in manner provided by the county auditor, if any, otherwiseby the Commissioners Court. Each officer, shall, at the close of eachmonth of his tenure of office,make an itemized and sworn report of all approved expenses incurredby him and charged to his county, accompanyingsuch report with invoices covering such purchases and requisitions issuedby him in support of such report. If such expensesbe incurred in connectionwith any particular case, such report shallname such case. Such report, invoices, and requistions shall be subject to the audit of the county auditor, if any, otherwiseby the Commissioners Court, and if it appears that any itemwas not incurredby such officer, or that such itemwas not a necessary or legal expense of such office, or purchased upon proper requisition, such item shall be by said county auditor- or court rejected in which case the payment of such itemmay be adjudicated in any court of competent jurisdiction. ~11 such approved claims and accounts shall be paid from the Officers Salary Fund unless otherwiseprovided herein.

II o ~ It 0 Attorney General's Opinion v-976, held that the District Attorney was acting in the proper and legal conduct of his office when he requested the District Court Reporter to prepare a transcript of the testimonygiven at an examining trial, for presentation to the Grand Jury, and stated that a diligent district attorneywould want to preserve such testimony,because in the event of indictment itmight become necessary during the trial of the accused to use the testimony taken in the examining trial. Attorney General's Opinion V-538, discussed a fact situation in which a justice of the peace calledan inquest and the county attorney desired to have the testimony of the witnesses transcribed to aid and assist him in the prosecution of the case should a criminal charge result. For this purpose he engaged a reporter to be present to transcribe the testimony. Based upon these facts it was held that:Mr. W. G. Walley, Jr., Page 6 (w&locl6)
"The county attorney e e .was authorized to require that the testimony taken at an inquestbe transcribed in question and answer form for use by him in the conduct of his office in investigating circumstances in a death and to employ a reporter to take and transcribe such testimony at the expense of the county." The question of whether the prior endorsementof the County Auditor or County Treasurer, as the casemay be, and the prior approval of the CommissionersCourt is necessary before incurring such expense, underArticle 3899, Section (b) is discussed in State v. Carnes, 106 S.W.2d 39'7,399 (Civ,App.193'7) and Attorney General's OpinionV-1149. This case concerns interpretationof said article concerning expendituresby the sheriff's department:

"While the entryby the commissioners'court of an order authorizingthe appointment of deputies and fixing their compensationupon proper applicationby the officer in accordancewith article 3902 is a condition precedent to ,hisclaiming credit, as a matter or right, for salariespaid his deputies, this statutory provisionwas not intendedas a limitationon the power of the commissioners'court, and any affirmati~ve action of the court authorizing or approving the expenditure before or after it was incurredwould bind the cbunty and authorize the deduction. The commissioners' court may ratify that which itmight have authorized originally. Cameron County V* Fox, 61 S.W.2d 483." (Emphasisadded.)

If the expensewas incurredby the District Attorney, such expendituremay be made out of the officer!s salary fund with the prior approval or subsequent ratificationof the Commissioners Court. Attorney General's Opinion V-1149.
SUMMARY (1) The Grand Jury of Jefferson Countymay hire an accountant to investigateany records during the course of investigatingfor violations of the Penal Code in the event that funds are availableby virtue of Set, 3 of Article 637, V. P. C. (2) The Criminal DistrictAttorney has the authority to employ a publrc accountantto audit any records, if reasonablynecessary in the investigationsof a criminal violation or in preparing a criminal case for trial, payable from the officer's salary fund.Mr. W. G. Walley, Jr., Page 7 

### (w-1086) Very trulyyours,
WILL WILSON Attorney General of Texas

BY Cecil Cammack, Jr. AssistantAttorney General

CC:ca
APPROVED"
OPINION COMMITTEE W. V. Geppert, Chairman
John Reeves Mary K. Wall Maston Courtney
REVIEWED FOR THE ATTORNEY GENERAL
BY: Morgan Nesbltt