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# TEEAT&ZNEZY GENERAL OF TEXAS

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September 30, 1977

The Honorable Bob Bullock Opinion No. H-1063 Comptroller of PublicAccounts State of Texas **Re:** Audit authority of the Austin, Texas 78774 Comptroller.
Dear Mr. Bullock:
You seek our opinion as to whether you possess audit authority under various statutes. Article 4344,V.T.C.S., provides: Among other duties the Comptroller shall:

. . . . 3. Superintendthe fiscal concerns of the State, as the sole accounting officer thereof, and manage the same in themanner requiredby law. Article 1.03, Taxation-General,provides:

The Comptroller shall have power at any time to examine and check up all and any expenditures of money appropriated for any of the state institutions or for any other purpose or for improvementsmade by the State on State property or money received and disbursed by any board authorizedby law to receive and disburse any Statemoney. The Comptroller shall also have power and authority and it is hereby made his duty, to fully investigate any State institutionwhen so directed by the Governor or required by information coming to his own knowledge. He shall investigate themanner of conducting the same and the policy pursuedby those in charge thereof, and the conduct or efficiencyof any person employed therein by the State. He shall examine into and report upon the

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character andmanner as well as the amount of expenditures thereof, and investigate and ascertain all sums of money due the State from any sourcewhatever, the ascertainment and collection of which does not devolve upon other officers of this State under existing law; and he shallreport all such facts to the Governor. When the Comptroller, acting under the direction'of the Governor, calls on any person connected with the public service to inspecthis accounts, records or books, saidperson so called upon shall submit to said agent all books, records and accounts so called for without delay.
In additionyou call our attention to the following provision contained in both the 1975 and 1977 appropriations acts.

AUDITS. None of the appropriationsherein made shall be used to employ any firm or person to audit the books of any department, board, commission, institutionor State agency, this being the duty of the StateAuditor.

. . .

. . . . Notwithstanding other provisionsof this Act, any state agency providinggrants or operating funds for governmentalprograms to local governmentalunits, private corporations, or other organizations other than a state agency or a department,may require,as a condition to granting or providing such funds, that the receiving entity have a yearly independentaudit performed and transmitted **to** the state agency. If sufficientpersonnel are available, the state agencymay have its internalaudit staff make a yearly inspectionvisit to the local entity. GeneralAppropriationsAct, Acts 1975, 64th Leg., ch. 743, at 2860 - 2861. GeneralAppropriationsAct, 65th Leg., art. V, s 30.
In essence,you inquirewhether theseprovisions authorize the Comptroller to exercise auditing authorityover State agencies, and if so, how certainpractical problemswith respect to such audit authority shouldbe resolved. We note that you inquire

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The Honorable Bob Bullock - Page 3 (H-1063)

about the kind of investigationthe Comptrollermay make on his own motion, and not an investigationmade at the Governor's request. Consequently,we do not address the Comptroller's authoritywhen acting on the Governor's command. Although article 1.03 has been modified on various occasions, the basic language of the statutewas enacted in 1899. Acts 1899, 26th Leg., ch. 23, at 26. The office of StateAuditor was created 30 years later and was vested with broad auditing powers, Acts 1929, 41st Leg., 1st called session, ch. 91, at 222. See also Acts 1943, 48th~Leg.,ch. 293, at 429. -- We believe the Legislaturehasmanifested its intent over the years that the functionof auditing other agencies belongs to the State Auditor. For example, the Legislature which created the Office of StateAuditor did not interpret article 1.03 as providing the Comptrollerwith broad power to audit other agencies. The emergency clause of the 1929Act establishing the Auditor's office and duties provided:

The fact that there is now no State Auditor and no official designated to audit and investigate the custodiansof public funds and the various departmentsof the State Government create an emergency. . . . Acts 1929, 41st Leg., 1st called session, ch. 91, at 225. (Emphasisadded). Additionally the appropriations act rider quoted above clearly indicates the legislativeunderstanding that the basic audit authority is vested in the State Auditor. The interpretation of a statuteby a subsequent Legislature is not controlling,but it is entitled to great weight. TexasLouisiana Power Co. v. City of Farmersville, 67 S.W.Zd 235 (Tex.Comm'n.App. 1933, jdgmt adopted);Neff v. Elgin, 270 S.W. 873 (Tex.Civ. App. -- San Antonio 1925,writ ref'd).
In 1948, the Attorney General addressed the effect the creation of the State Auditor's Office had on other state officerswho had statutoryauthority to conduct audits. The statute involved in that opinionwas article 4400 which authorized the Attorney General tomake a monthly inspectionof the accounts of the Comptroller and Treasurer. Letter Opinion R-1404 (1948)at 6 concluded:

It is apparent
. . . that the duties imposed upon the StateAuditor and Efficiency Expert by the Act of 1929 and upon the State Auditor by the Act of

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1943 includedthe duties imposedupon the AttorneyGeneral by the first sentence in Article 4400. It is our opinion the effect of theseActs was to repeal the above-mentionedsentenceby implication. Accordingly,we believe that the 1929 and 1943 legislation removed any independentauthority the Comptrollermight have previously had to initiate investigationsand examinationsof the books and recordsof state agencies when those activities would duplicate or parallel the duties of the StateAuditor. As far as we can determine, this interpretationhas **not** been questioned by prior Comptrollers. We believe this determination is reflected in the rider which prohibits agencies from expending state funds for activitieswhich are the responsibility of the Auditor. SeeAttorney General Opinion M-1199 (1972)where the same riderwaxeld to be valid.
SUMMARY The Comptrollerof Public Accounts is not authorized to conduct audits of other state agencieswhen such audits would parallel or duplicate the duties of the StateAuditor.

APPROVED: Very truly yours, 

# Y3sLLey

DAVID **M.** KENDALL, First **SSiStant**

C. ROBERT HEATH, Chairman Opinion Committee

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