Honorable Mike Driscoll 

Harris County Attorney 

1001 Preston, Suite 634 

Houston, Texas 77002 

Opinion No. JM-911 

Re: Which county official is 

responsible for preparation 

of the county payroll and the 

printing and distribution of 

its checks (RQ-1135) 

Dear Mr. Driscoll: 

You ask which county official is responsible for the 

preparation of county payroll and the printing and distribution of its checks. Presently, the Harris County 

Auditor performs these functions. The Harris County 

Treasurer, however, claims that such functions properly 

should be performed by her office. In two well-prepared 

briefs, your office concludes that the county treasurer, 

rather than the county auditor, is the official responsible 

for the preparation and distribution of county payroll. We 

agree that the county auditor may not perform these functions; however, we conclude that the various county officers 

are by statute given the authority to prepare and distribute 

the county payroll for the employees of their respective 

offices. We believe that the county treasurer may properly 

be delegated the responsibility of preparing the payroll and 

printing paychecks in Harris County. 

It must be emphasized at the outset that no constitutional or statutory provision expressly confers authority on 

any officer to prepare the county payroll and print and 

distribute paychecks. A number of statutes, however, assign 

functions directly related to the county payroll to various 

officers, including the county auditor and county treasurer. 

Both officers claim that those payroll functions not 

assigned by statute should properly be performed by their 

respective offices. 

P. 4530 
Honorable Mike Driscoll - Page 2 (J&l-911) 

The office of county auditor was first created by the ? 

legislature in 1905. Acts 1905, 29th Leg., ch. 161, at 381. 

The county auditor is 

having 'urisdiction 

appointed by the district judges 

1 

in the county. Local Gov't Code 

584.002. In a county with a population of two million or 

more, the county auditor must be "elected" by a t,wo-thirds 

vote of the district judges present and votin 

1 

at a meeting 

called for that purpose. Id. 584.005(a). The county 

auditor must be of unquestionable character and intelligence, thoroughly competent in public business details, and 

a competent accountant with at least two years experience in 

accounting and auditing. Id. 584.006.3 The county auditor 

must file a bond conditioned on the faithful performance of 

his official duties, must take the official oath, and must 

provide a written oath that states, inter alia, that he 

possesses the prescribed qualifications and that he will not 

be personally interested in a contract with the county. Id. 

584.007.4 

1. Sections 1 and 2 of Acts 1987, 70th Leg., ch. 57, 

at 153 amended former V.T.C.S. articles 1645 and 1646, now 

Local Government Code sections 84.002, 84.004, 84.007, 

152.031, and 151.032. Section 311.031(c) of the Government 

Code provides in part that the repeal of a statute by a code 

does not affect an amendment of the statute by the same 

legislature which enacted the code. The amendment is 

preserved and given effect as part of the code provision. 

Articles 1645 and 1646 were repealed with the simultaneous 

enactment of the Local Government Code in 1987. Acts 1987, 

70th Leg., ch. 149, 549(l), at 1307. 

2. Former V.T.C.S. article 1645a-10, now section 

84.005, was amended by Acts 1987, 70th Leg., ch. 192, at 

1466. The amendment is preserved 

of section 

and given effect as part 

84.002. Gov't Code 5311.031(c). See note 1, 

sunra. 

3. Former V.T.C.S. article 1648 (now section 84.006) 

was amended by Acts 1987, 70th Leg., ch. 57, at 153. The 

amendment is preserved and given effect as part of section 

84.006. Gov't Code 5311.031(c). See note 1, supra. 

4. See note 1, suora. 

P. 4531 
rHonorable Mike Driscoll - Page 3 (JM-911) 

The auditor is given the duty to prescribe the system 

of accounting for counties with a population of 190,000 or 

more. & §112.002(a). In all counties, he is given 

authority to adopt and enforce regulations he considers 

necessary for the "speedy and proper collecting, checking, 

and accounting" of county funds. The regulations cannot be 

inconsistent with law or rules adopted by the comptroller of 

public accounts prescribing the manner for the keeping and 

accounting of county funds. Id. 

112.003. The county auditor is *en 

5§112.001; 112.002(b); 

general oversight of the books and records 

of a county, district, or state officer 

authorized or required by law to receive or 

collect money or other property that is 

intended for the use of the county or that 

belongs to the county. 

Id. 5112.006(a). He is required also to maintain accounts 

for such purposes, section 112.005, and shall keep records 

of county financial transactions, section 112.007. The 

county auditor must also "see to the strict enforcement of 

the law governing county finances." a 9112.006(b). In 

counties with a population of more than 225,000, the county 

auditor serves as budget officer for the commissioners court 

with the duty of pre 

!3 

aring the annual county budget. Id. 

5111.032 and 111.033. 

The county auditor is, as his title suggests, given 

broad powers to audit county finances. The county auditor 

has continual access to commissioners court orders relating 

to county finances, and the books, accounts, reports, 

vouchers, and other records of officers. Local Gov't Code 

~115.001. He has a duty to examine and investigate these 

records, id., as well as reports about the collection of 

money for the county and the books and reports of the county 

5. Sections 111.061 to 111.073 of the Local Government 

Code apply to counties with a population greater than 1.2 

million and authorize the appointment of a budget officer by 

the commissioners court. Section 4 of Acts 1987, 70th Leg., 

ch. 57, at 155, amends section 1 of former V.T.C.S. article 

1666b (now sections 111.061 and 111.062) to reduce the 

population bracket to counties in excess of 125,000 

population. It appears, then, that a budget officer may be 

appointed in all counties with a population greater than 

125,000. Gov't Code 53 11.031(c). See note 1, suora. 

P. 4532 
Honorable Mike Driscoll - Page 4 (JM-911) 

tax assessor-collector, county treasurer, and all other 

officers. Id. 5115.002. In counties with a population of 

190,000 or more, the county auditor "shall audit, adjust, 

and settle the accounts of the district attorney, the 

district clerk, and each county or precinct officer." Id. 

5115.004. 

The county auditor also is given duties regarding the 

expenditure of county funds. The auditor's approval of 

each claim, bill, and account against the county is a prerequisite to its payment. Id. 5113.064(a). The auditor's 

approval may not be given unless the claim was incurred as 

provided by law. Id. 5113.065. The auditor may not audit 

or approve an account for the purchase of supplies if it is 

not accompanied by a requisition signed by the officer 

ordering the supplies and approved by the county judge 

unless the county judge's approval is waived. Id. 5113.901. 

Furthermore, the county treasurer and the county depository 

may not pay a check or warrant, other than one for jury 

service, unless it bears the auditor's countersignature. 

Id. 5113.043. 

Article XVI, section 44, of the Texas Constitution 

creates the office of county treasurer and, in a few 

counties, authorizes its abolition. In counties in which 

the office is not abolished, the county treasurer is an 

elected officer and performs those duties prescribed by the 

legislature for the office. 

The legislature has designated the county treasurer as 

chief custodian of county funds. Local Gov't Code §113.001. 

He is required to receive all money belonging to the 

county, id, S113.003, and to deposit such funds in various, 

designated accounts. Id. 55113.004: 113.021. He must keep 

records of all transactions of the treasurer's office, 

including all receipts and expenditures of money he receives 

by virtue of the office, id. 5113.002, and a register of all 

claims presented against the county. Id. 5113.061. At, each 

regular term of the commissioners court, the treasurer is 

required to make a detailed report of all transactions and 

proceedings in his office and exhibit the books and accounts 

of the office for the commissioners court's audit and 

approval. Id. 5114.026. The treasurer also must submit a 

monthly claims report to the county clerk. Id, 5114.061. 

The treasurer shall examine the records of various officers 

to determine if money belonging to the county in the possession of the officers has not been accounted for and paid 

over according to law. Id. L3115.901. The treasurer is also 

-\ 

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P. 4533 
Honorable Mike Driscoll - Page 5 (JM-911) 

,- 

empowered to direct the prosecution for the recovery of any 

debt owed the county and to supervise the collection of the 

- debt. 1 J& 5113.902. 

The county treasurer may charge prescribed fees for 

performing certain enumerated services. Id. §5118.141- 

118.144. In a county in which the county treasurer is 

compensated on a fee basis, the legislature has provided a 

schedule for determining the officer's commissions. Id. 

§153.001.. 

The county treasurer is also given broad powers 

concerning the disbursement of county funds. Section 

113.041 of the Local Government Code provides the following 

in pertinent part: 

(a) The county treasurer shall disburse 

the monev belonainc to the countv and shall 

pav and aDDlV the monev as required by law 

and as the commissioners court may require or 

direct, not inconsistent with law. 

(b) A person may not spend or withdraw 

money from the county treasury except by 

a check or warrant drawn on the county 

treasury, whether or not the money is in a 

county depository as required by law. 

Cc) The county treasurer may not pay 

money out of the county treasury without a 

certificate or warrant from an officer who is 

authorized by law to issue the certificate or 

warrant. 

Cd) If the treasurer doubts the legality 

or propriety of an order, decree, certificate, or warrant presented to the treasurer 

for payment, the treasurer may not make the 

payment. The treasurer shall report the 

matter to the commissioners court for 

the court's consideration and direction. 

(Emphasis added.) 

Local Gov't Code 5113.041. The county treasurer must 

r endorse warrants, checks, vouchers and orders drawn by a 

proper authority if there are sufficient funds in the 

account from which it is drawn, but may not issue a check 

to take up a warrant drawn by a proper authority. Id. 

5113.042(a), (b). 

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P. 4534 
Honorable Mike Driscoll - Page 6 (JM-911) 

As we mentioned at the outset of this opinion, a number 

of statutes assign various functions associated with the 

county payroll to various officers, 

assigns the duty of 

though none expressly 

preparing the county payroll and 

printing county paychecks. Several of these statutes assign 

certain functions to the county auditor, while others 

designate the county treasurer as the official 

for performing certain payroll functions. 

responsible 

Chapter 155 of the Local Government Code authorizes and 

enumerates deductions that may or must be made from the 

compensation of county employees. In counties with 20,000 

or more inhabitants, county employees may request payroll 

deductions for payments to a credit union, 

membership dues 

payment of 

in a labor union or bona fide 

association, or payment 

employees 

of fees for parking in a 

owned facility. Id. 

county- 

§155.001. The employee's written 

request must be submitted to the county auditor, and the 

request remains in effect until the county auditor receives 

a written notice of revocation signed by the employee. Id. 

§155.002. 

Section 155.021 enumerates certain payroll deductions 

that are either authorized or required by other statutes. 

The section provides 

another officer 

that the "county treasurer or, if 

is specified by law, that other officer 

shall make the deductions from, or take other similar 

actions with regard to, the compensation of county employees 

as required" by the enumerated statutes. Of these statutes, 

only two expressly designate the treasurer as the officer 

to make the authorized or required payroll deductions. 

V.T.C.S. art. 69%, 

Title llOB, 

59 (social security contributions); 

355.403(e) (retirement system contributions). 

One statute designates the "disbursing officer of the 

county." V.T.C.S. art. 6252-3, §1 (purchase of United 

States savings bonds). Another speaks of the 

officer designated by the 

"appropriate 

county." V.T.C.S. art. 6252-313, 

593, 3A (deferred compensation plans). Article 6229a-5, 

V.T.C.S., which authorizes deductions for 

annuities or 

the purchase of 

investment, is silent as to the officer 

responsible for making payroll deductions. A statute not 

listed in section 155.021, V.T.C.S. article 6252-3c, which 

authorizes the establishment of a "cafeteria plan" benefits 

program for county employees, is also silent on this issue. 

Chapter 156 of the Local Government Code authorizes 

counties to establish and operate an electronic funds 

transfer system to transfer county officers' and employees' 

net pay and all forms of compensation, 

reimbursement to their 

payments, or 

accounts in financial institutions. 

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P. 4535 
Honorable Mike Driscoll - Page 7 (JM-911) 

P 

Id. §156.001. The county auditor, or the chief financial 

officer in counties without an auditor, is responsible for 

establishing "the procedures for administering the system." 

Id. 5156.003. 

Subchapter D of chapter 152 of the Local Government 

Code concerns the withholding of compensation of elected 

county officers who elect not to be paid. Section 152.051 

defines "county payroll officer" for the purposes of 

administering this subchapter as "the county auditor or 

other appropriate county officer who issues paychecks to 

county personnel." Id. 5152.051. Subchapter D, however, 

was enacted in response to the efforts of a single elected 

officer: 

Mr. Bill Finck, the County Treasurer in Bexar 

County, ran on the platform of abolishing the 

office. Mr. Finck does not want to accept 

his paychecks, but the County Auditor has 

stated that every elected official must 

accept [his] paycheck. There is presently no 

law on the books which permits an elected 

county official to refuse compensation for 

his services. H.B. 1991 has been introduced 

to alleviate this situation. 

Bill Analysis to H.B. No. 1991, 68th Leg., prepared for 

House Comm. on County Affairs (1983). The office of county 

treasurer in Bexar County was eventually abolished. Tex. 

Const. art. XVI, 944(b). Subchapter D, therefore, should be 

considered in that light. Gov't Code 5311.023(3) (legislative history may be consulted when construing a statute). 

Finally, we note that section 151.903 of the Local 

Government Code establishes procedures regarding the 

preparation and reporting of payroll information in counties 

with a population of 500,000 or more. The county auditor is 

given seemingly broad powers regarding the county payroll, 

but, as we shall discuss later in this opinion, they are no 

broader than those already possessed by the auditor. 

II. 

The confusion surrounding the issue of which county 

official is responsible for the payroll is reflected in a 

series of inconsistent opinions issued by this office over a 

period of 40 years. We will now examine these opinions and 

reevaluate some of their conclusions regarding the proper 

roles of different county officers with respect to the 

county payroll and delivery and preparation of warrants. 

P. 4536 
Honorable Mike Driscoll - Page 8 (JM-911) 

Attorney General Opinion O-6624 (1945) concerned the 

duty of the county auditor with respect to the approval 

of warrants for the payment of a county employee. The 

opinion concluded that the auditor's chief duties were to 

ascertain whether the employee was engaged in performing the 

duties authorized by his contract of employment with the 

commissioners court and whether such duties were in the 

discharge of "county business." If the auditor d,etermined 

that the employee was not discharging the duties for which 

he was employed, the auditor's sole remedy was to refuse to 

countersign the warrants drawn on the county treasurer for 

the purpose of paying the employee. See also Smith v. 

MCCOY, 533 S.W.2d 457 (Tex. Civ. App. - Dallas 1976, writ 

dism'd w.0.j.). The opinion did not hold, nor did it imply, 

that the auditor bore m duty respecting the payment of 

county employees beyond the approval and countersignature of 

warrants issued to county employees in payment of their 

services. 

Other opinions employed similar reasoning. In Attorney 

General Opinion O-5049 (1943), the question was whether the 

commissioners court could adopt an order authorizing the 

county auditor, inter alia, to my county and precinct 

officials and employees. The question was answered in the 

negative because the county auditor was not subject to the 

orders of the commissioners court and because the commissioners court could not delegate its duty to audit and 

settle accounts against the county and direct their payment. 

See also Local Gov't Code s115.021 (formerly V.T.C.S. art. 

2351(10)). 

Attorney General Opinion V-487 (1948) concluded that 

the county auditor could not collect and pay group insurance 

premiums for county employees. The opinion emphasized the 

absence of language granting such power to the auditor in 

the statute authorizing the group plan. Attorney General 

Opinion V-711 (1948), considering another group insurance 

plan authorized by statute, reached the same conclusion: 

[Nleither the collection nor the deduction of 

the contributions from the salaries of the 

county employees constitutes any function of 

the County Auditor. . . . The collection and 

deduction should be performed by the proper 

county officer who issues the checks on the 

County Treasurer for the payment of the 

salaries of the employees included in the 

wow insurance plan. . . . The County 

Auditor, of course would necessarily have 

to countersign the checks of the county 

-, 

P. 4537 
Honorable Mike Driscoll - Page 9 (JM-911) 

officer under the . . . provisions of Article 

1656a. . . . 

Attorney General Opinion V-711 (1948) at 2. Attorney 

General Opinion V-1387 (1952) concluded from a reading of 

the version of V.T.C.S. article 695g then in effect that it 

was the duty of the county treasurer to assess and collect 

county employees' social security contributions and to 

transmit such amounts to the State Department of Public 

Welfare.6 The county auditor's duty was to "check, compare, 

and audit" the county treasurer's computations and to 

certify the results to proper officials. 

Attorney General Opinion WW-1107 (1961) considered 

whether the county auditor could make payroll deductions for 

county employees to be paid over to a credit union. After 

quoting a portion of former article 1656a, V.T.C.S. (now 

section 113.047 of the Local Government Code), the attorney 

general advised that the county treasurer had authority to 

disburse funds in the payment of salaries and expenses. 

This, despite the fact that the statute provided that the 

officer who collected the funds disbursed in payment of 

salaries "may draw checks on the county treasurer to 

disburse said funds." Attorney General Opinion ww-1107 

(1961) at 2. Attorney General Opinion V-711 (1948) was 

affirmed, but because no statute granted the commissioners 

court the express power to make payroll deductions for 

credit union payments, the commissioners court could not 

delegate such authority to either the county auditor or the 

county treasurer. 

In Attorney General Opinion C-218 (1964) the issue was 

whether the "Tabulating Department" of Jefferson County fell 

under the "jurisdiction" of the county auditor. At stake 

was control of the county's data processing equipment, with 

which a number of functions were performed, including 

processins oavrolls. orintina checks, registers and various reports: cash claims, 

warrants, registers and reports, budget 

6. The Employees Retirement System is now the state 

- agency designated to administer the program. V.T.C.S. art. 

695g, 551(d), 2. The county treasurer remains the official 

officer responsible for assessing, collecting, and transmitting employees' contributions. Id. 59; Local Gov't Code 

5155.021(l). 

P. 4538 
Honorable Mike Driscoll - Page 10 (JM-911) 

: 

-_ 

appropriations, expenditures, encumbrances, 

controls and reports. (Emphasis added.) 

Attorney General Opinion C-218 (1964) at 1. A substantial 

part of the department's work related to the county's 

accounting system and the forms used by county and precinct 

officers in the collection and disbursement of county funds. 

After quoting parts of former V.T.C.S. articles 1651, 1654, 

1656, 1656a, 1666 and 1666a (now codified throughout Local 

Government Code chapters 111, 112, 113, 114, and 115), the 

opinion abruptly concluded that 

the County Auditor has jurisdiction and 

control of the tabulating department which 

performs the functions described in your 

statement of facts. 

Attorney General Opinion C-218 (1964) at 4. The opinion 

provided no analysis of the various functions of the 

department, but simply declared that all fell into the 

general area of accounting and were under the control of the 

county auditor. 

Attorney General Opinion M-299 (1968) also arose as a 

result of the consolidation of various governmental functions into a single computer system which was under the 

county auditor's control. The relevant question was whether 

the commissioners court could adopt an order directing the 

county auditor to issue checks or warrants for the payment 

of salaries and expenses for all district, county, and 

precinct offices. Relying on that part of article 1656a now 

codified as Local Government Code section 113.047, which 

authorized officers to draw checks on the county treasurer 

to pay salaries and expenses, and subsections 19(i) and 

19(l) of former article 3912e (now sections 154.042 and 

154.043 of the Local Government Code). which created 

officers' salary funds and authorized bif 

warrants against the fund to pay salaries 

general concluded that district, county, 

officers were authorized to "issue" or 

"warrants" for the payment of deputies' 

salaries. Attorney General Opinion M-299 

But the opinion also concluded that the comm 

cers to issue 

the attorney 

and precinct 

"draw" county 

and employees' 

( 1968) at 7-8. 

.issioners court 

could direct the auditor to "prepare" county and district 

payroll warrants. Id. at 8. The attorney general did not 

explain the difference between "issuing" or "drawing" 

warrants for salaries and "preparing" payroll warrants, 

though he obviously perceived a difference. Instead, he 

simply concluded that county officers would not be deprived 

of their authority to issue warrants for salaries. Attorney -. 

P. 4539 
Honorable Mike Driscoll - Page 11 (JM-911) 

General Opinion C-218 (1964) was cited as authority for 

allowing the auditor to process county payrolls and print 

r‘- county warrants and checks. 

In Attorney General Opinion M-657 (1970), the question 

was which county official was responsible for delivering 

county warrants and county jury checks to the payee. Former 

article 2554, V.T.C.S., now section 113.042 of the Local 

Government Code, described the county treasurer's duty to 

endorse checks and warrants presented to him. Former 

article 1632, V.T.C.S., required the treasurer to obtain an 

acknowledgment of the receipt of amounts paid from the party 

receiving payment from the county. See Local Gov't Code 

5113.062. Former article 1709, V.T.C.S., provided in part 

that the county treasurer shall "receive all moneys 

belonging to the county" and "pay and apply the same." See 

Local Gov't Code §5113.003, 113.041(a). In view of these 

statutes, the attorney general concluded that the county 

treasurer was the proper official to make delivery of county 

warrants to the payee. See al Attorney General 

O-4462 (1942) (county treasurershall 

Opinion 

endorse and deliver 

warrants drawn by proper authority to the payee). 

In Attorney General Opinion M-965 (1971), the issue was 

whether the county clerk could "continue the writing of 

payroll checks" and "continue to write checks in payment of 

any and all bills" approved by the commissioners court. The 

attorney general determined that amendments to former 

article 1709, V.T.C.S., relating to the duties of the county 

treasurer did not diminish the duties of the county clerk. 

Thus, under the provisions of articles 1656a, 3912e, and 

3912e-4, the clerk could continue to issue warrants for 

salary and expenses "incurred in the conduct of his office 

(emphasis added)." Attorney General Opinion M-965 (1971) at 

4. He concluded that the amendments merely enlarged article 

1709 to include language from statutes governing the duties 

of other officers and that there was no legislative intent 

to repeal those other statutes. 

Attorney General Opinion H-977 (1977) held that the 

requisition requirement of former article 1661, V.T.C.S. 

(now section 113.901 of the Local Government Code), did not 

apply to claims for, inter alia, labor and services. The 

opinion quoted Nacoadoches County v. Jinkins, 140 S.W.2d 901 

P (Tex. Civ. App. - Beaumont 1940, writ ref'd), which held 

that articles 1660 and 1661 did not apply to claims by 

county officers for the recovery of their statutorily 

established salaries. 

p. 4540 
Honorable Mike Driscoll - Page 12 (JM-911) 

, 

.’ 

--. 

Attorney General Opinion H-1242 (1978) considered 

whether the commissioners court of Harris County could 

assign the preparation of warrants of a flood control 

district to either the county clerk or a data processing 

center created to serve the commissioners court and other 

county officers. The opinion consisted of two terse 

paragraphs which said that the commissioners court could not 

assign the preparation of county warrants to any officer or 

department, since control of the preparation and processing 

of warrants was vested in the county auditor, and cited 

former V.T.C.S. articles 1656a and (oddly) 1650. Without 

explanation, and apparently without regard to the opinions 

that preceded it, the attorney general approved greater 

exertion of control by the county auditor over the county 

payroll; control that, because of advances in technology, 

the legislature could not have anticipated when it created 

the office of county auditor. 

Attorney General Opinion JM-192 (1984) appears to 

retreat from some of the broader implications of the 

opinions just discussed. In that opinion, we held that 

commissioners court approval of salaries paid to county 

employees is required before salary warrants may be issued. 

Prior approval of the county auditor is not necessary, 

although the auditor's countersignature is required. We 

advised that the auditor's broad authority to "see to the 

strict enforcement of the law governing county finances," 

and the power to disapprove certain claims not contracted 

for according to law, did not empower the auditor to require 

his prior approval of salary payments.. Attorney General 

Opinion JM-192 (1984) at 4. We emphasized the auditor's 

ministerial duty to countersign warrants for salaries where 

the claimants had a right to such payments as a matter of 

law, but we noted his authority to refuse to countersign 

such warrants where the claimants did not as a matter of law 

have a right to the payments. Comoare Jackson v. Leonard, 

578 S.W.2d 879 (Tex. Civ. App. - Houston [14th Dist.] 1979, 

writ ref'd n.r.e.) and Nacoadoches Countv v. Jinkins, 140 

S.W.2d 901 (Tex. Civ. App. - Beaumont 1940, writ ref'd) with 

Smith v. McCoy, 533 S.W.2d 457 (Tex. Civ. App. - Dallas 

1976, writ dism'd w.o.j.) and Attorney General Opinion 

O-6624 (1945). We also provided a brief description of the 

procedures followed when paying county employees: 

A commissioners court is required to 'audit 

and settle all accounts against the county and 

direct their payment.' V.T.C.S. art. 2351(10). 

All payments must comply with the county's 

budget with regard to those salaries which 

have been approved for county officials and 

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p. 4541 
Honorable Mike Driscoll - Page 13 (JM-911) 

employees. V.T.C.S. art. 689a-11; art. 1666a. 

The funds are actually disbursed by the county 

treasurer under the direction of the commissioners court. Article 1709a, V.T.C.S., 

generally requires that all county money be 

deposited with the county treasurer or in the 

county depository and that 

[n]o moneys shall be expended or withdrawn from the county treasury except 

by checks or warrants drawn on the 

county treasury. . . . 

V.T.C.S. art. 1709a, §4. It is the duty of 

the county treasurer, upon the presentation 

of a warrant drawn by the proper authority, 

to endorse said warrant for the benefit of 

the named payee if there are sufficient funds 

available. Id. §4 (d) . Thus, the proper 

authority in the payment of salaries is the 

commissioners court, whose order directing 

payment, i.e. the warrant, is attested by the 

county clerk. Id. 44(e). 

Later in the opinion, we noted that "monthly payroll reports 

prepared by the respective county officials are turned in to 

the commissioners court for its approval and its order 

issuing salary warrants," Attorney General Opinion JM-192 

(1984) at 4, citing former V.T.C.S. article 1637 (now 

section 115.022 of the Local Government Code). We observed 

that Attorney General Opinion O-5049 (1943) had held that 

this responsibility could not be delegated to the county 

auditor. 

The most recent opinion bearing on the responsibilities 

of county officers with respect to payroll matters is 

Attorney General Opinion JM-585 (1986). There we were asked 

whether the county auditor or the county treasurer was the 

county payroll disbursing officer for purposes of section 

55.403 of Title llOB, V.T.C.S., in counties with a population of 10,000 or more. We concluded that, based upon the 

plain language of section 55.403(e), the county treasurer 

was the payroll disbursing officer in those counties in 

which the office has not been abolished. The language of 

- former articles 1709 and 1709a also made it clear that the 

county treasurer, the officer given the responsibility to 

disburse county funds, was the proper officer to deduct 

member contributions to a retirement system established by 

Title 1lOB. The result of Attorney General Opinion JM-585 

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P. 4542 
Honorable Mike Driscoll - Page 14 (JM-911) 

is now codified in section 155.021(5) of the Local Government Code. 

III. 

Three sections of the Local Government Code have a 

direct bearing on the duty of county officers to prepare and 

distribute the payroll for Harris County. Section 151.903 

affects counties with a population of 500,000 or more. It 

requires district and county officers to file personnel 

records for each deputy, assistant, or person employed or 

appointed by the officer if the person is paid with county 

funds or funds of a flood control district located entirely 

in the county. The statute also provides for the filing of 

payroll: 

(c) Each county officer or department 

head under whom 

Subsection (a) 

the persons described by 

are employed shall file a 

signed and sworn payroll at the close of 

the month, or more often if authorized or 

required by law. The payroll must state 

the name of each employee and show the 

employee's dates and hours of work, rate of 

compensation, and amount due for the current 

pay period. In the case of engineers and 

employees in the field engaged in road, flood 

control, or construction work, a signed 

report must accompany the payroll stating the 

nature, dates, and location of the work 

performed and containing any other information that may be needed for statistical or 

accounting purposes. 

Local Gov't Code §151.903(c). The statute does not 

designate an office or officer to receive or process the 

payroll, but it provides that the county auditor "shall 

prescribe the forms and systems, including a system of 

personnel and equipment records, necessary to carry out this 

section." Id. 5151.903(d). The auditor also “may enforce 

any rules adopted under this section." Id. 

withhold payment 

The auditor may 

of salaries in the event that a 

fails to file records 

person 

or information required under this 

section. Id. 

Section 151.903 would appear to vest the county auditor 

with broad authority over county payroll procedures. However, we believe that this section must be read in 

tion with sections 

conjunc113.047 and 154.043 of the Local 

Government Code. 

P. 4543 
Honorable Mike Driscoll - Page 15 (JM-911) 

Section 113.047 authorizes the disbursement of salaries 

in counties of 190,000 or more and provides the following: 

After the deposit of funds in a county 

depository, an officer in a county with a 

population of 190,000 or more mav draw checks 

on the county treasurer to disburse the funds 

as payment for a salary or expenses authorized 

by law or in payment to the county or to the 

person to whom the funds belong. (Emphasis 

added.) 

Section 154.043 establishes procedures for the payment of 

employee salaries and provides the following in pertinent 

part: 

(a) A district, county, or precinct 

officer may issue a warrant against the 

salary fund to pay the salary of an employee 

whose salary may be paid from the fund. 

(Emphasis added.) 

ic‘ 

Statutes that relate to the same general subject matter 

are said to be in nari materia and are to be construed 

together in arriving at the intention of the legislature. 

Calvert v. Fort Worth National Bank, 356 S.W.Zd 918 (Tex. 

1962). In the event of any conflict, the more specific 

statute prevails over the more general provision. Aleios v. 

State, 555 S.W.Zd 444 (Tex. Crim. APP. 1972). See also 

Gov't Code 5311.026. We perceive no conflict between 

section 151.903 and sections 113.047 and 154.043. 

In our opinion, section 151.903 does no more than 

acknowledge the authority of the county auditor to "prescribe the system of accounting for the county" and to 

adopt and enforce regulations for the "speedy and proper 

collecting, checking, and accounting" of county funds. 

Local Gov't Code 5112.002 (counties with a population of 

190,000 and more). Section 112.002 is derived from former 

V.T.C.S. article 1656a, as is section 113.047. Furthermore, 

section 151.903 does not expressly purport to place in the 

auditor's hands the duty of preparing payroll or distributing paychecks, nor do we believe that it can reasonably 

be construed to do so. The auditor's authority to withhold 

- payment of salaries for failure to file the required records 

or information merely reflects the auditor's power to refuse 

to countersign salary warrants where no right to receive the 

salary has been established as a matter of law. Attorney 

General Opinion JM-192 (1984). Because sections 113.047 and 

P 154.043 specifically provide that an officer may "draw 

P. 4544 
, 

Honorable Mike Driscoll - Page 16 (JM-911) 

checksI' and ltissue" warrants for the payment of salaries, 

they must be given effect. 

Additionally, section 154.044(a) of the Local Government code states that each district, 

officer shall file 

county, and precinct 

a report with the 

shows, inter alia, "the 

county auditor that 

amount paid during the preceding 

month to each employee of the officer and the name and 

position of the employee." We believe that this provision 

contemplates a situation in which an officer other than the 

county auditor is responsible 

payroll. If the auditor 

for preparing the county 

function, 

were authorized to perform this 

it would serve no purpose to require officers to 

submit the information required by section 154.044, since 

the auditor presumably would already possess such information. Accordingly, we believe that the Local Government 

Code provisions applicable to Harris County do not grant the 

county auditor the authority either to prepare the county 

payroll or to print and distribute paychecks. 

IV. 

Article XVI, section 44, of the Texas Constitution 

assigns no duties to the office of county treasurer. The 

legislature is given the primary duty to prescribe the 

duties, which it has done in intricate detail. 

this opinion would be incomplete 

However, 

if we did not discuss the 

greater constitutional implications of this issue. Constitutional themes underlie the question at hand and suggest 

that the county treasurer should exercise those functions, 

such as the preparation of the county payroll, which 

logically are a part of the functions of that constitutional 

office. An answer to your question thus is incomplete without reflection on the themes suggested by the Constitution. 

Under our republican form of government, the power to 

govern is vested in the people; the duty to govern is vested 

in offices created under the Constitution and discharged by 

officers responsible to the people. A constitutional office 

is no empty honor or mere preferment. Rather, it is an 

essential element of republican government. 

Wiecek, 

See, e.a., 

"Republican Form of Government," 3 Encvclopedia of 

the American Constitution 1558 (1986). Each constitutional 

office is essential to the whole scheme of freedom and 

sovereignty established by the Constitution because it has 

at its core certain irreducible functions which make up the 

threads of the office. In turn, each constitutional office 

is a part of the whole fabric of republican government. 

P. 4545 
Honorable Mike Driscoll - Page 17 (JM-911) 

The core functions of a constitutional office may not 

be taken away, or shared with another office, save by a conP stitutional amendment. The officer holding the constitutional office thus must be permitted to perform any tasks 

properly emanating from the core functions of the office -- 

functions that are historically or logically within the 

penumbra of power attached to the office as an element of 

republican government. See Ex narte Hushes, 129 S.W.2d 270 

(Tex. 1939). Our discussion of the role of the county 

treasurer, above, indicates that the core functions of the 

office should include the preparation of the county payroll. 

To reiterate, the treasurer is the chief custodian of 

county funds, Local Gov't Code 5113.001, and has broad 

powers concerning the disbursement of those funds, id. at 

5113.041, including the sole power to "disburse money 

belonging to the county" and to pay the county's money s 

directed bv the commissioner's court, id. The preparation 

of the county payroll logically falls within the penumbra of 

the ministerial duties created by these functions at the 

core of the constitutional office of county treasurer. In 

the main, the best reasoned prior opinions of this office 

cited above fully support this conclusion. 

Under our system of county government, there exists a 

delicate system of checks and balances to protect the funds 

of the county. The county auditor occupies a significant 

role in this system. Smith v. MCCOY, 533 S.W.2d 457 (Tex. 

Civ. App. - Dallas 1976, writ dism'd w.0.j.). As our 

discussion of the duties of the office demonstrated, the 

county auditor is given broad powers to oversee county 

finances and prescribe systems for the accountability of 

county funds. The effectiveness of this checks and balances 

system depends, in large part, upon the independence of the 

auditor from the influence and control of the county 

commissioners court. Weaver v. Commissioners' Court of 

Nacoadoches Countv, 146 S.W.2d 170 (Tex. 1941). The 

independence of the county auditor is assured by placing the 

power of appointment and dismissal in the hands of the 

district judges rather than the commissioners court. Id.; 

Local Gov't Code 584.002. That independence is compromised 

when the auditor disburses county funds in the form of pay 

checks. 

P In the absence of express legislative authorization for 

the auditor to prepare the county payroll and have the 

checks printed and distributed, we are hesitant to conclude 

that he may perform these responsibilities. The auditor's 

primary responsibility is to review the books of others and 

to see to the enforcement of the laws governing county 

P. 4546 
Honorable Mike Driscoll - Page 18 (JM-911) 

finances. Local Gov't Code 5112.006. Unless the legislature expressly permits the auditor to perform administrative 

work that is subject to audit, we would assume he would not 

be in a position to audit his own work. See aenerallv 22 

T.A.C. 95501.11, 501.15. 

Thus, the county auditor, as we have detailed above, 

may have critical duties to perform with regard to the 

disbursement of county funds, even in the area of payrolls. 

At the very least, the auditor has an over-arching assignment to see that county funds are expended according to law 

and under a system that allows 

are critical elements in the 

for accountability. These 

scheme of checks and balances 

imposed in general by the constitution, and in particular by 

the numerous statutes we have cited. Most assuredly, the 

auditor may not preempt a power which should be among the 

core functions of an officer of full constitutional dignity. 

V. 

Based on the foregoing discussion, we believe that the 

duty of preparing payroll and drawing paychecks falls on the 

various county officers. See Attorney General Opinion Nos. 

M-965 (1971); V-711 (1948). The act of "drawing" a check 

does not, however, require the officer to actually perform 

the clerical tasks of printing and writing in the figures on 

the face of the check. 

be written," i.e 

Rather, the officer may "cause it to 

A, may delegate this task. We believe that 

both logic and constitutional 

other official 

law dictate that the only 

to whom .this function properly may be 

delegated is the county treasurer, since the treasurer is 

authorized to 

by law or 

the"p~~mm~~~io~~~~y" county money as required 

court. Local Gov't Code 

5113.041(a). See also Attorney General Opinion JM-585 

(1986) (defining "disburse" as "pay or expend"). 

The commissioners court, pursuant to its authority to 

"audit and settle accounts against the county" and direct 

their payment, must give its prior approval before warrants 

in payment of salary may be issued. Id. §115.021; 

General Opinion 

Attorney 

JM-192 (1984). The county auditor 

prescribe.the 

may 

forms and systems necessary to process the 

county payroll. Local Gov't Code 5151.903(d). The auditor's 

countersignature is still required on salary warrants. Id. 

5113.043. Attorney General Opinion JM-192 (1984). 

It is suggested that county officers in Harris County 

are no longer authorized to issue warrants for salaries. We 

are informed that the commissioners court has eliminated 

officers' salary funds pursuant to former V.T.C.S. article 

p. 4547 
L 

*. 

Honorable Mike Driscoll - Page 19 (JM-911) 

3912e, section 19(i) (now Local Government Code section 

154.007). Under this provision, the commissioners court may 

order that money that would otherwise be deposited in the 

salary fund be deposited in the general fund of the 

It is 

county. 

argued that this action, coupled with the commissioners court power to fix salaries of county employees, 

Local Government Code section 152.011, deprives county 

officers of the authority to issue salary warrants. This is 

not the case, however. The use 

salaries in 

of the general fund to pay 

issue salary 

no way diminishes an officer's authority to 

warrants. Indeed, section 154.007(b) states 

that in a county where the general fund is made the source 

of payment of salaries, a reference in chapter 154 to a 

salary fund means the general fund. 

in Harris County 

Consequently, -officers 

are authorized to issue warrants on the 

general fund in payment of employees' salaries. 

In view of our answer to your question, we conclude 

that Attorney General Opinion Nos. M-299 (1968) and C-218 

(1964) are in error to the extent that they conclude that 

the county auditor may prepare the county payroll and print 

paychecks, and they are hereby overruled. To the extent 

that Attorney General Opinion H-1242 (1978) suggests that 

the county auditor of Harris County may prepare warrants for 

the payment of salaries of county officers and employees, it 

is modified to conform with this opinion. The holding of 

Attorney General Opinion JM-192 (1984), that prior approval 

of the commissioners court, but not of the county auditor, 

is required before salary warrants may be issued, involved a 

county with a population less than 190,000. See Local Gov't 

Code §§154.021-154.026 (salary provisions applicable to such 

counties). To the extent that it suggests that the commissioners court, rather than county officers, is 

for issuing salary 

responsible 

warrants in counties with a population 

greater than 190,000, it should not be followed. 

Attorney General Opinion Nos. M-657 (1970) and O-4462 

(1942) I which concluded that the county treasurer was the 

proper official to make delivery of county warrants to the 

payee, are not in conflict with this opinion because they 

concern the treasurer's aeneral authority to pay and apply 

county funds, rather than the specific duty to draw and 

issue checks or warrants in payment of salaries. Comuare 

Attorney General Opinion M-965 (1971). Attorney General 

P Opinion VW-1107 (1961), which held that the county treasurer 

has authority to disburse funds in payment of salaries, is 

not in conflict with this opinion, 

disburse funds does not 

since the authority to 

include the authority to issue 

checks or warrants for salaries. Attorney General Opinion 

JM-585 (1986), which dealt with specific statutory language - 

p. 4548 
Honorable Mike Driscoll - Page 20 (JM-911) 

concerning payroll deductions, is necessarily limited to its 

facts, and is therefore not in conflict with this opinion. 

To summarize, we 

county payroll 

conclude that the duty of preparing 

and drawing 

to county officers 

and issuing paychecks belongs 

in Harris County. Local Gov't Code 

§5113.047; 151.903; 154.043; M Attorney General Opinion 

Nos. M-965 (1971); V-711 (1948). 

properly be delegated such duties. 

The county treasurer may 

The county auditor has 

no authority to perform these specific functions. 

SUMMARY 

The duty of preparing county payroll and 

drawing and issuing paychecks belongs to the 

various county officers in Harris County. 

Local Gov't Code 55113.047; 151.903; 154.043. 

The county treasurer may properly be delegated 

such duties. The county auditor has no 

authority to perform these specific functions. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Steve Aragon and 

Don Buston 

Assistant Attorneys General 

P. 4549