ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

March 31,2003 

The Honorable Mark E. Price 

San Jacinto County Criminal District Attorney 

1 State Highway 150, Room 2 1 

Coldspring, Texas 7733 1 

Opinion No. GA-0053 

Re: Auditing of certain accounts held by a 

criminal district attorney (RQ-0624-JC) 

Mr. Ray Stelly, C.P.A. 

San Jacinto County Auditor 

1 State Highway 150, Room Bl 

Coldspring, Texas 7733 1 

Dear Mr. Price and Mr. Stelly: 

Mr. Price’s predecessor in office and Mr. Stelly asked this office several questions relating 

to an ongoing special audit authorized by section 115.032 of the Local Government Code. The 

District Attorney’s office contends that certain funds are not subject to audit in this matter, and the 

County Auditor’s office disagrees. The funds in question are (i) moneys distributed to the District 

Attorney’s office pursuant to the Professional Prosecutors Act, chapter 46 of the Government Code, 

(ii) grants from the criminal justice division of the governor’s office distributed pursuant to article 

104.004 of the Code of Criminal Procedure, and (iii) the “hot check” fund created by article 102.007 

of the Code of Criminal Procedure. 

As we understand the controversy giving rise to this request, a special auditor appointed by 

the district judge pursuant to section 115.032 of the Local Government Code requested certain 

records of these funds, and the Criminal District Attorney declined to comply with this request on 

the ground that the County Auditor had no authority to inspect such accounts.’ Further, the special 

auditor argues that a particular contract entered into by the District Attorney for the purchase of a 

car for his office with “hot check” funds created an unconstitutional debt. To this, the District 

Attorney’s office responds that the funds expended were subject to his sole discretion and did not 

bind the county.* 

‘Letter from Honorable Scott W. Rosekrans, San Jacinto County Criminal District Attorney, to Ray Stelly, San 

Jacinto County Auditor (Oct. 11,2002) (on file with Opinion Committee). 

2Letter from Honorable Scott W. Rosekrans, San Jacinto County Criminal District Attorney, to Honorable Joe 

E. Adams, County Judge, San Jacinto County (Oct. 6,2002) (on file with Opinion Committee). 
The Honorable Mark E. Price and Mr. Ray Stelly - Page 2 (GA-0053) 

Section 115.032 of the Local Government Code provides for “a special audit of all county 

records” to be performed in a county upon the petition of thirty percent of the number of its voters 

in the last gubernatorial election. TEX. LOC. GOV’T CODE ANN. 8 115.032 (Vernon 1999). A district 

judge with jurisdiction in the county determines the validity of the petition and, if it is valid, employs 

a person who has the qualifications required of a county auditor to prepare and file the special audit. 

Id. 

The first question is whether the state funds distributed to a district attorney’s office under 

either the Professional Prosecutors Act or article 104.004 of the Code of Criminal Procedure are 

subject to audit in this matter pursuant to section 115.032 of the Local Government Code. 

The District Attorney’s argument that the state funds in question are not subject to this audit 

is rooted in section 115.0035(d) of the Local Government Code, which exempts such funds from 

audit by the county auditor. But the authority for the audit in question derives rather from section 

115.032, and the audit is conducted by the court-appointed special auditor. However, nothing in the 

language of section 115.032 gives the special auditor powers greater than those of the county auditor, 

and the county auditor is specifically denied the authority to audit these particular funds. See TEX. 

Lot. GOV’T CODE ANN. $5 115.032,115.0035 (Vernon 1999). 

As the District Attorney’s office has noted, the provision giving a county auditor authority 

to audit funds collected by a district attorney or any county entity specifically exempts ‘-funds 

received by the district attorney fi-om the comptroller of public accounts pursuant to the General 

Appropriations Act” and federal and state grants. Id. 8 115.0035(d). Under section 46.004(b) of 

the Professional Prosecutors Act, a district attorney is accountable to the state comptroller for the 

funds provided to defray the costs of office. TEX. GOV’T CODE ANN. $46.004(b) (Vernon Supp. 

2003). Similarly, under article 104.004 of the Code of Criminal Procedure concerning grants made 

by the criminal justice division of the governor’s office, “All money distributed to a county under 

this article and its expenditure by the county are subject to audit by the state auditor.” mx. CODE 

GRIM. PROC. ANN. art. 104.004(d) (Vernon Supp. 2003) (emphasis added). Section 115.0035(d) 

excepts both of these funds fi-om county audit. 

The special audit provision, applying to “county records” generally, was first adopted in 

1957. See Act of Apr. 17, 1957, 55th Leg., R.S., ch. 124, 1957 Tex. Gen. Laws 265. As the 

emergency clause of the legislation makes clear, the concern behind the provision had to do with 

“[tlhe fact that audits of county records under the present law are inadequate.” Id. Accordingly, the 

emergency clause suggests that the intent of the legislation is for the special auditor to have oversight 

authority of the county auditor. We conclude, therefore, that the powers of the two auditors are 

coextensive and that the state funds in question are not subject to the special audit procedure. 

The next questions concern the “hot check” fund established under article 102.007 of the 

Code of Criminal Procedure. See TEX. CODE GRIM. PROC. ANN. art. 102.007(a)-(f) (Vernon Supp. 

2003). The District Attorney’s office contends that this fund is not subject to audit either by the 

County Auditor or by the special auditor appointed under section 115.0032. In this instance, 

however, we cannot agree. It is well established, as the District Attorney’s office argues, that the 
The Honorable Mark E. Price and Mr. Ray Stelly - Page 3 (GA-0053) 

“hot check” fund is “wholly outside of the county budgeting process.“3 However, it is equally well 

established that “[tlhe county auditor generally oversees the books and records of a county officer 

who receives or collects money ‘that is intended for the use of the county or that belongs to the 

county.“’ Tex. Att’y Gen. Op. No. DM-357 (1995) at 8 n.8 (citing TEX. Lot. GOV’T CODE ANN. 

4 112.006(a) - General Oversight Authority of County Auditor). A county auditor may, for example, 

require the prosecutor to submit receipts for the purchase of goods and services from the fund. as an 

ordinary accounting and control procedure. Tex. Att’y Gen. Op. No. JC-0084 (1999) at 2. Given 

that the audit of the “hot check” fund is within the purview of the county auditor, it is within that of 

the special auditor as well. 

Because the “hot check” fund is a county fund, article XI, section 7 of the Texas Constitution 

applies to it. Article XI, section 7 provides in relevant part that “no debt for any purpose shall ever 

be incurred in any manner by any city or county” without provision for a tax to pay for the interest 

and a sinking fund. TEX. CONST. art. XI, $ 7. The District Attorney’s office has argued that it 

entered into a multi-year contract, but not one that involved county funds or bound the county. This 

argument attempts to distinguish the transaction in question from that under consideration in 

Attorney General Opinion JC-0395, which held that a district attorney may not bind the use of 

county funds for a long-term lease agreement. Tex. Att’y Gen. Op. No. JC-0395 (2001) at 2. The 

distinction, however, is unavailing. While opinions dating at least as far back as Attorney General 

Opinion MW-439 (1982) have noted that the county has no authority over the disposition of the “hot 

check” fund, the character of the fund, which is, pursuant to article 102.007, “deposited in the county 

treasury,” has not been disputed. TEX. CODE CRIM. PROC. ANN. art. 102.007(f) (Vernon Supp. 

2003). Indeed, Attorney General Opinion MW-439 itself referred to the fund as a “special fund 

which is in the county treasury, but which is segregated from other county funds and earmarked for 

a specific purpose.” Tex. Att’y Gen. Op. No. MW-439 (1982) at 5 (emphasis added); see alsq Tex. 

Att’y Gen. Op. No. JM-313 (1985) at 9 (hot check fund “clearly comprised by county funds”). 

Attorney General Opinion DM-357’s conclusion that a county auditor had authority to oversee these 

funds, moreover, was premised on the funds in question being county funds. See Tex. Att’y Gen. 

Op. No. DM-357 (1995) at 8 n.8. Additionally, while the District Attorney has discretionary 

authority over the moneys in the “hot check” fund, nothing in the language of article 102.007 

purports to give him the contractual authority asserted here. “The district attorney had no authority 

to enter into a contract requiring the expenditure of county funds.” Tex. Att’y Gen. Op. No. JC-0395 

(2001) at 2. Accordingly, however these public fwnds may be denominated, the District Attorney 

has no authority to pledge them, whatever his power to expend them. 

The final question concerns the disposition of the funds granted to a district attorney’s office 

under chapter 46 of the Government Code, the Professional Prosecutors Act. While section 46.004 

does, as the District Attorney’s office argues, provide that the use of the funds is overseen by the 

comptroller of public accounts rather than the county auditor, it is silent as to where the moneys shall 

be deposited. Certainly the legislature could have provided for the money to be treated as a special 

fund in the county treasury as it did in the case of the “hot check” fund. See TEX. CODE GRIM. PROC. 

\ 3Letter fi-om Honorable Scott W. Rosekrans, San Jacinto County Criminal District Attorney, to Texas Attorney 

General at 5 (Oct. 17,2002) (on file with Opinion Committee) (citing Tex. Att’y Gen. Op. No. DM-357 (1995) at 6). 
The Honorable Mark E. Price and Mr. Ray Stelly - Page 4 (GA-0053) 

ANN. art. 102.007(f) (Vernon Supp. 2003). However, it did not. Accordingly, as the County Auditor 

suggests, these funds are subject to section 140.003(f) of the Local Government Code, which 

requires their deposit in the county treasury. See Tex. Att’y Gen. Op. No. DM-257 (1993) at 4 (law 

“requires all funds of a specialized local entity to be deposited in the county treasury”). 
The Honorable Mark E. Price and Mr. Ray Stelly - Page 5 (GA-0053) 

SUMMARY 

State funds distributed to a prosecutor under the Professional 

Prosecutors Act or article 104.004 of the Code of Criminal Procedure 

are not subject to the special audit provision of section 115.032 of the 

Local Government Code. “Hot check” funds established under article 

102.007 of the Code of Criminal Procedure are subject to such audit. 

A district attorney’s authority over the disposition of “hot check” 

proceeds does not empower him to make multi-year contracts binding 

them in violation of article XI, section 7 of the Texas Constitution. 

Funds distributed to a district attorney under the Professional 

Prosecutors Act are to be deposited in the county treasury. 

Very truly yours, 

BARRY R. MCBEE 

First Assistant Attorney General 

DON R. WILLETT 

Deputy Attorney General - General Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

James E. Tourtelott 

Assistant Attorney General, Opinion Committee