. . . 

THE ORNEY GENE 

OF WAS 

Mr. W. G. Walley, Jr. Opinion No. WW-1086 

Actina Criminal District Attornev 

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 corporations or 

Dear Mr. Walley: individuals. 

You have asked the following questions: 

1. Does the District Attorney and/or Grand Jury have authority 

to employ a public accountant to audit 

A. Records of the County; 

B. Records of incorporated municipalities; 

c. Records of private corporations; and/or 

D. Records of private individuals? 

2. If so, from what fund should these services be paid? 

It is clearly the duty of the grand jury to inquire into all 

alleged felony violations of the law, Article 3S1, Vernon's Code of 

Criminal Procedure. Generally investigations are made for the grand 

jury by the local law enforcement officials, mainly the Sheriff's 

office, local police officers, constables and the District Attorney's 

office. The Department of Public Safety also provides assistance for 

the grand jury when requested. There is no specific statutory authority giving the grand jury power to expend county funds for the 

purpose of employing an accountant, since said function is generally 

handled for the grand jury by other officials who 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 investigating violations of any of the provisions of the Penal Code. Section 3 of Article 

637 of 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 

paraphernalia and equipment per 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 

equipment or paraphernalia,for a gambling house or was 

being used for gaming purposes, then any money 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 subdivision thereof, or to any 

State institution to be used by it for its own use and 

benefit, or the Court may in its discretion order such 

money or coins to be delivered to the Grand Jury of ,the 

Countv in which such eauioment or DaraDhernalia was 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 investipating violations 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-report to the District judge 

impanelling the same the amount of money received under the 

provisions of this Section and an accounting of all funds 

expended, and the balance of such funds, if any, shall be 

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 such money will be turned over and delivered to 

such succeeding Grand Jury." (Emphasis added.) 

It has been contended that Section 24 ~of Article 16 of the 

Constitution of 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 shall make 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 Commissioners Court, they 

must go into the road and bridge fund of the county. Attorney General's 

Opinion V-469. This opinion based its conclusion upon examination of 

Section 24 of Article 16 of the Constitution, and Articss 1626 and 

1628, Vernon's Civil Statutes. Since Articles 1626 and 1628 clearly 

cover the problem involved, the discussion as to the applicability of 
Mr. W. G. Walley, Jr., Page 3 (W-1086) 

of Section 25 of Article 16 of the Constitution was surplusage. 

The view expressed in Attorn,ey General's Opinion V-469 was in line 

with Attorney General's Opinion 0-6805. 

Section 24 of Article 16 should not be construed as requiring 

that all fines, forfeitures and uses of convict labor be designated 

for use upon public roads and bridges only. 

It has been the long standing policy of this State to utilize 

fines, forfeitures and convict labor for purposes other than work on 

the public roads and bridges. 

The Texas Liquor Control Act by Article 666-30, Vernon's Penal 

Code, provides that forfeitures be 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 exclusive purpose 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 'under the law may'inure to 

the public. This holding would include the civil fines and forfeitures 

provided in our Anti-Trust Laws and the Business Corporation Act. 

Civil fines and penalties collected for violation of the Texas 

Business Corporation Act, the Texas ~Anti-Trust Laws 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 "Interpretive Commentary" contained in Vernon's Constitution 

of the State of Texas, Annotated under Section 24, Article 16, indicates that at the time the constitutional provision under discussion 

was passed, the prison population has trebled in a single year and there 

was a great need for employment of convicts and that the consitutional 

provision was passed to provide "additional" employment for convicts. 

This provision has never been interpreted to 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 historical background of Section 24, 

Article 16, that said section was intended to grant the Legislature 

additional powers, and was not intended to limit the powers of the 

Legislature to utlize fines, forfeitures and convict labor for other 

purposes.+ 

For further discussion on this point see Attorney General's 

Opinion No. WW-1079. 
. - 

Mr. W. G. Walley, Jr., Page 4 (W-1086) 

In addition to the above funds which 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 committeemen are entitled 

to receive three ($3) Dollars a day, not to exceed five (5) days, for 

the performance of their duties, said money to be paid out of the county 

treasury upon certificate of the District Judge. Article 1640, Vernon’s 

Civil Statutes I 

Upon examination of the statutes and laws of this State we can 

find no other authority upon which 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 

quantum meruit wil.1 not lie. Pritchard and Abbott v. McKenna, 343 

S.W.2d 752 (Clv.App., 1961, writ pending). Therefore, the general 

funds of the county would not be liable for any contract entered Into 

by the grand jury for auditing purposes on the basis of contractual 

obligation or quantum meruit, since the grand jury has no authority 

to commit the general funds of the county, but is only authorized to 

spend the funds, If any, acquired by virtue of Article 637, Vernon’s 

Pena 1 Code . 

Article 52-16Ob, Vernon’s Code of Criminal Procedure, sets up 

the office of Criminal District Attorney for Jefferson County. Under 

Article 3899, Section (b), Vernon’s Civil Statutes, a Criminal District 

Attorney is authorized to charge to his county all reasonable expenses 

necessary in the proper and legal conduct of his office. Said Article 

provides : 

“Each officer named in this Act, where he receives 

a salary as compensation for his services, shall be entitled 

and permitted to purchase or charge to his county all reasonable expenses necessary in the proper and legal conduct of 

his office . . .” 

When a criminal district attorney believes that the work in 

question would be a material aid to his office in preparing criminal 

cases for trial it would be proper for him to have certain services 

performed. Attorney General’s Opinion WW-874. 

Article 3899, Section (b) continues: 

(I 9 . .Such expenses to be 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 Commissioners Court once each month for the 

ensuing month, upon the application by each officer, 

stating the kind, probable amount of expenditure and 

the necessity~for the expenses of his office for such 

ensuing month, which application shall, before presentation to said court, first be endorsed by the county 

audftor, if any, otherwise the county treasurer, only 

as to whether funds are available for payment of such 

expenses. . o 

TSuch purchases shall be made by each officer, 

when allowed, only by requisition in manner provided 

by the county auditor, if any, otherwise by the Commissioners Court. Each officer, shall, at the close 

of each month of his tenure of office, make an itemized 

and sworn report of all approved expenses incurred by 

him and charged to his county, accompanying such report 

with invoices covering such purchases and requisitions 

issued by him in support of such report. If such 

expenses be incurred in connection with any particular 

case, such report shall name such case. Such report, 

invoices, and requistions shall be subject to the audit 

of the county auditor, if any, otherwise by the Commissioners Court, and if it appears that any item was 

not incurred by such officer, or that such item was 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 item may be adjudicated in any court of competent 

jurisdiction. ~11 such approved claims and accounts shall 

be paid from the Officers Salary Fund unless otherwise provided 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 testimony given at an examining trial, for presentation to the 

Grand Jury, and stated that a diligent district attorney would want to 

preserve such testimony, because in the event of indictment it might 

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 called an 

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 inquest be 

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 endorsement of the County 

Auditor or County Treasurer, as the case may be, and the prior 

approval of the Commissioners Court is necessary before incurring 

such expense, under Article 3899, Section (b) is discussed in State 

v. Carnes, 106 S.W.2d 39'7, 399 (Civ,App. 193'7) and Attorney General's 

Opinion V-1149. This case concerns interpretation of said article 

concerning expenditures by the sheriff's department: 

"While the entry by the commissioners' court of 

an order authorizing the appointment of deputies and 

fixing their compensation upon proper application by 

the officer in accordance with article 3902 is a condition precedent to ,his claiming credit, as a matter or 

right, for salaries paid his deputies, this statutory 

provision was not intended as a limitation on the power 

of the commissioners' court, and any affirmati~ve action 

of the court authorizing or approving the expenditure 

before or after it was incurred would bind the cbunty 

and authorize the deduction. The commissioners' court 

may ratify that which it might have authorized originally. 

Cameron County V* Fox, 61 S.W.2d 483." (Emphasis added.) 

If the expense was incurred by the District Attorney, such 

expenditure may be made out of the officer!s salary fund with the 

prior approval or subsequent ratification of the Commissioners 

Court. Attorney General's Opinion V-1149. 

SUMMARY 

(1) The Grand Jury of Jefferson County may hire an 

accountant to investigate any records during the course 

of investigating for violations of the Penal Code in the 

event that funds are available by virtue of Set, 3 of 

Article 637, V. P. C. 

(2) The Criminal District Attorney has the authority to 

employ a publrc accountant to audit any records, if 

reasonably necessary in the investigations of 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 truly yours, 

WILL WILSON 

Attorney General of Texas 

BY 

Cecil Cammack, Jr. 

Assistant Attorney 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