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 ofthe county payroll and the printing and distribution of itschecks (RQ-1135)

Dear Mr. Driscoll:

You askwhich 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. Intwo well-prepared briefs, your office concludes that the county treasurer, rather than the county auditor, isthe official responsible for the preparation and distribution ofcounty payroll. We agree that the county auditor may not perform these functions; however, we conclude that thevarious county officers
are by statute given the authority toprepare and distribute the county payroll for the employees oftheir respective offices. Webelieve that the county treasurer may properly bedelegated the responsibility ofpreparing the payroll and printing paychecks inHarris County.

Itmust beemphasized at the outset that no constitutional or statutory provision expressly confers authority on any officer toprepare the county payroll and print and distribute paychecks. Anumber ofstatutes, 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. 4530Honorable Mike Driscoll -Page 2 (J&l-911)

The office ofcounty auditor was first created by the ? legislature in1905. 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. Inacounty with apopulation of twomillion or more, the county auditor must be "elected" by a t,wo-thirds vote ofthe district judges present andvotin1ata meeting called for that purpose. Id. 584.005(a). The county auditor must be of unquestionable character and intelligence, thoroughly competent inpublic business details, and
acompetent accountant with at least twoyears experience in accounting and auditing. Id. 584.006.3 The county auditor must file abond conditioned onthe 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 hewill not bepersonally interested inacontract with the county. Id. 584.007.4

1. Sections 1and 2of Acts 1987, 70th Leg., ch. 57, at 153amended 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) ofthe Government Code provides inpart that the repeal ofastatute by acode does not affect an amendment of the statute bythe **same** legislature which enacted the code. The amendment is preserved and given effect aspart of the code provision. Articles 1645 and 1646 were repealed with the simultaneous enactment ofthe Local Government Code in1987. 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 byActs 1987, 70th Leg., ch. 192, at 1466. The amendment ispreserved 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 byActs 1987, 70th Leg., ch. 57, at 153. The amendment ispreserved and given effect aspart of section 84.006. Gov't Code 5311.031(c). See note 1,supra.

4. See note 1,suora.

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

The auditor isgiven the duty toprescribe the system ofaccounting forcounties with apopulation 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 andproper collecting, checking, and accounting" ofcounty funds. The regulations cannot be inconsistent with law orrules 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 ofthe books and records ofa county, district, or state officer authorized orrequired by law to receive or collect money or other property that is intended forthe use ofthe county or that belongs tothe county.

Id. 5112.006(a). He is required also tomaintain accounts for such purposes, section 112.005, and shall keep records ofcounty 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 apopulation ofmore than 225,000, the county auditor serves asbudget officer forthe commissioners court with the duty ofpre!3 aring the annual county budget. Id. 5111.032 and 111.033.

The county auditor is, ashis title suggests, given broad powers toaudit county finances. The county auditor has continual access tocommissioners court orders relating to county finances, and the books, accounts, reports, vouchers, and other records ofofficers. Local Gov't Code ~115.001. Hehas aduty 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 ofthe Local Government Code apply to counties with a population greater than 1.2 million and authorize the appointment ofabudget officer by the commissioners court. Section 4ofActs 1987, 70th Leg., ch. 57, at 155, amends section 1of 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. Itappears, then, that abudget officer may be appointed in all counties with a population greater than 125,000. Gov't Code 53 1,suora. 11.031(c). See note

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

tax assessor-collector, county treasurer, and all other officers. Id. 5115.002. In counties with apopulation of 190,000 ormore, the county auditor "shall audit, adjust, and settle the accounts of the district attorney, the district clerk, and each county orprecinct officer." Id. 5115.004.

The county auditor also isgiven duties regarding the expenditure of county funds. The auditor's approval of each claim, bill, and account against the county isa prerequisite to itspayment. Id. 5113.064(a). The auditor's approval may not begiven unless the claim was incurred as provided by law. Id. 5113.065. The auditor may not audit
or approve anaccount for the purchase ofsupplies ifit 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 iswaived. Id. 5113.901. Furthermore, the county treasurer and the county depository may not pay acheck orwarrant, 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 isnot 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 ofcounty funds. Local Gov't Code §113.001. He is required to receive all money belonging to the county, id, S113.003, and todeposit such funds in various, designated accounts. Id. 55113.004: 113.021. Hemust keep records of all transactions of the treasurer's office, including all receipts and expenditures ofmoney he receives byvirtue of the office, id. 5113.002, and aregister ofall claims presented against the county. Id. 5113.061. At,each regular term of the commissioners court, the treasurer is required tomake adetailed report ofall transactions and proceedings inhis 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 tothe county clerk. Id, 5114.061. The treasurer shall examine the records ofvarious officers todetermine ifmoney belonging tothe county inthe possession ofthe officers has not been accounted for and paid
over according to law. Id. L3115.901. The treasurer isalso -\

?

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

,- empowered todirect 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 onafeebasis, 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 ofthe Local Government Code provides the following inpertinent part:

(a) The county treasurer shall disburse themonev belonainc to the countv and shall pav and aDDlV themonev as required by law and asthe commissioners court may require or direct, not inconsistent with law.

(b) Aperson may not spend or withdraw money from the county treasury except by
acheck or warrant drawn on the county treasury, whether or not themoney is in a county depository asrequired by law.

Cc) The county treasurer may not pay money out of the county treasury without a certificate orwarrant from anofficer who is authorized by lawto issue the certificate or warrant.

Cd) Ifthe treasurer doubts the legality
orpropriety ofan order, decree, certificate, orwarrant presented to the treasurer forpayment, the treasurer may notmake 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 fromwhich it isdrawn, butmay not issue a check to take up a warrant drawn by aproper authority. Id. 5113.042(a), (b).

-

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

Aswementioned atthe outset ofthis opinion, anumber ofstatutes 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 ofthese statutes assign certain functions to the county auditor, while others designate the county treasurer asthe official forperforming certain payroll functions. responsible

Chapter 155 ofthe Local Government Code authorizes and enumerates deductions that may ormust bemade from the compensation ofcounty employees. Incounties with 20,000
ormore inhabitants, county employees may request payroll deductions for payments to a credit union, membership dues payment of ina labor union orbona fide association, orpayment employees of fees forparking ina owned facility. Id. county- §155.001. The employee's written request must be submitted to the county auditor, and the request remains ineffect until the county auditor receives
awritten notice ofrevocation signed bythe employee. Id. §155.002.

Section 155.021 enumerates certain payroll deductions that are either authorized orrequired by other statutes. The section provides another officer that the "county treasurer or, if isspecified by law, that other officer shall make the deductions from, or take other similar actions with regard to, the compensation ofcounty employees
asrequired" by the enumerated statutes. Of these statutes, only two expressly designate the treasurer asthe officer tomake 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 bythe "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 formaking payroll deductions. Astatute not listed insection 155.021, V.T.C.S. article 6252-3c, which authorizes the establishment ofa "cafeteria plan" benefits program forcounty employees, isalso silent on this issue.
Chapter 156 ofthe Local Government Code authorizes counties to establish and operate an electronic funds transfer system totransfer county officers' and employees' net pay and all forms of compensation, reimbursement to their payments, or accounts infinancial institutions. -,

?

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

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

officer incounties without anauditor, isresponsible for establishing "the procedures for administering the system." Id. 5156.003.
Subchapter D ofchapter 152of the Local Government Code concerns thewithholding ofcompensation of elected county officers who elect not tobepaid. 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 inresponse to the efforts ofasingle elected officer:

Mr. Bill Finck, the County Treasurer inBexar

County, ran onthe platform ofabolishing 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 ispresently no lawon 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 toH.B. No. 1991, 68th Leg., prepared for House Comm. onCounty Affairs (1983). The office of county treasurer inBexar County was eventually abolished. Tex. Const. art. XVI, 944(b). Subchapter D,therefore, should be considered inthat light. Gov't Code 5311.023(3) (legislative history may beconsulted when construing astatute).
Finally, we note that section 151.903 of the Local Government Code establishes procedures regarding the preparation and reporting ofpayroll information incounties with apopulation of 500,000 ormore. The county auditor is given seemingly broad powers regarding the county payroll, but, aswe shall discuss later inthis opinion, they are no broader than those already possessed by the auditor.

II.

The confusion surrounding the issue of which county official isresponsible forthe payroll isreflected in a series of inconsistent opinions issued bythis office over a period of 40years. Wewill 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 ofwarrants.

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

Attorney General Opinion O-6624 (1945) concerned the duty of the county auditor with respect to the approval ofwarrants for the payment ofa county employee. The opinion concluded that the auditor's chief duties were to ascertain whether the employee was engaged inperforming the duties authorized byhis contract of employment with the commissioners court andwhether such duties were in the discharge of "county business." Ifthe auditor d,etermined that the employee was not discharging the duties for which hewas employed, the auditor's sole remedy was to refuse to countersign thewarrants drawn onthe 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 tocounty employees inpayment of their services.

Other opinions employed similar reasoning. InAttorney General Opinion O-5049 (1943), the question was whether the commissioners court could adopt anorder authorizing the county auditor, inter alia, tomy 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 forcounty employees. The opinion emphasized the absence of language granting such power tothe 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 tocountersign the checks of the county -,

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

officer under the . . .provisions ofArticle 1656a. . . .
Attorney General Opinion V-711 (1948) at 2. Attorney General Opinion V-1387 (1952) concluded from areading of theversion ofV.T.C.S. article 695g then ineffect that it
was the duty ofthe county treasurer toassess 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 toproper officials.

Attorney General Opinion WW-1107 (1961) considered whether the county auditor could make payroll deductions for county employees tobepaid over toacredit union. After quoting a portion of former article 1656a, V.T.C.S. (now section 113.047 ofthe 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 tomake payroll deductions for credit union payments, the commissioners court could not delegate such authority toeither the county auditor or the county treasurer.

InAttorney General Opinion C-218 (1964) the issue was whether the "Tabulating Department" ofJefferson County fell under the "jurisdiction" ofthe county auditor. At stake
was control ofthe county's data processing equipment, with which anumber 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 forassessing, collecting, and transmitting employees' contributions. Id. 59; Local Gov't Code 5155.021(l).

P. 4538Honorable 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 inthe collection and disbursement ofcounty funds. After quoting parts of former V.T.C.S. articles 1651, 1654, 1656, 1656a, 1666 and 1666a (nowcodified 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 ofaccounting andwere under the control of the county auditor.

Attorney General Opinion M-299 (1968) also arose as a result ofthe consolidation of various governmental functions into asingle computer system which was under the county auditor's control. The relevant question was whether the commissioners court could adopt anorder directing the county auditor to issue checks orwarrants for the payment of salaries and expenses forall district, county, and precinct offices. Relying onthat part ofarticle 1656a now codified as Local Government Code section 113.047, which authorized officers todraw checks onthe county treasurer topay 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 adifference. Instead, he simply concluded that county officers would not be deprived of their authority to issue warrants for salaries. Attorney -.

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

General Opinion C-218 (1964) was cited as authority for allowing the auditor toprocess county payrolls and print r‘- county warrants and checks.

InAttorney 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 ofthe 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 ofthe receipt ofamounts 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 tothe 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 tomake delivery ofcounty warrants to the payee. See al Attorney General O-4462 (1942) (county treasurershall Opinion endorse and deliver warrants drawn byproper authority tothe payee).

InAttorney General Opinion M-965 (1971), the issue was whether the county clerk could "continue the writing of payroll checks" and "continue towrite checks inpayment of any and all bills" approved bythe commissioners court. The attorney general determined that amendments to former article 1709, V.T.C.S., relating tothe duties ofthe county treasurer did not diminish the duties ofthe county clerk. Thus, under the provisions ofarticles 1656a, 3912e, and 3912e-4, the clerk could continue to issue warrants for salary and expenses "incurred in the conduct ofhis office (emphasis added)." Attorney General Opinion M-965 (1971) at 4. Heconcluded that the amendments merely enlarged article 1709 to include language from statutes governing the duties ofother 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 ofthe Local Government Code), did not apply toclaims 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. 4540Honorable 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 adata 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 ofcounty warrants toany officer or department, since control ofthe preparation and processing ofwarrants was vested inthe county auditor, and cited former V.T.C.S. articles 1656a and (oddly) 1650. Without explanation, and apparently without regard tothe opinions that preceded it, the attorney general approved greater exertion ofcontrol 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 ofcounty 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 isrequired 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 todisapprove 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 tocountersign warrants for salaries where the claimants had a right to such payments asa **matter** of law, but we noted his authority to refuse to countersign such warrants where the claimants did not asamatter of law have aright tothe 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 abrief description of the procedures followed when paying county employees:

Acommissioners court isrequired 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 tothose salaries which have been approved for county officials and ?

-

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

employees. V.T.C.S. art. 689a-11; art. 1666a. The funds are actually disbursed bythe 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]omoneys shall be expended or withdrawn from the county treasury except bychecks or warrants drawn on the county treasury. . . .

V.T.C.S. art. 1709a, §4. It isthe duty of the county treasurer, upon the presentation ofawarrant drawn bythe proper authority, toendorse said warrant for the benefit of the named payee ifthere are sufficient funds available. Id. §4(d). Thus, the proper authority inthe payment ofsalaries is the commissioners court, whose order directing payment, i.e. thewarrant, isattested bythe county clerk. Id. 44(e).

Later inthe opinion, wenoted that "monthly payroll reports prepared by the respective county officials are turned into 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 ofthe Local Government Code). We observed that Attorney General Opinion O-5049 (1943) had held that this responsibility could not bedelegated to the county auditor.

The most recent opinion bearing onthe responsibilities ofcounty officers with respect to payroll matters is Attorney General Opinion JM-585 (1986). There wewere asked whether the county auditor or the county treasurer was the county payroll disbursing officer for purposes of section 55.403 ofTitle llOB, V.T.C.S., incounties with a population of 10,000 or **more.** Weconcluded that, based upon the plain language of section 55.403(e), the county treasurer
was the payroll disbursing officer inthose counties in which the office has notbeen abolished. The language of

- former articles 1709 and 1709a also made itclear that the

county treasurer, the officer given the responsibility to disburse county funds, was the proper officer to deduct member contributions toa retirement system established by Title 1lOB. The result ofAttorney General Opinion JM-585 /--

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

isnow codified insection 155.021(5) of the Local Government Code.

III.

Three sections of the Local Government Code have a direct bearing onthe duty ofcounty officers toprepare and distribute the payroll for Harris County. Section 151.903 affects counties with apopulation of 500,000 ormore. 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 ispaid with county funds or funds ofaflood control district located entirely inthe 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 themonth, 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 ofwork, rate of compensation, and amount due forthe current pay period. Inthe case of engineers and employees inthe field engaged inroad, 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 beneeded for statistical or accounting purposes.

Local Gov't Code §151.903(c). The statute does not designate anoffice orofficer to receive orprocess the payroll, but itprovides that the county auditor "shall prescribe the forms and systems, including a system of personnel and equipment records, necessary tocarry 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 inthe event that a fails to file records person or information required under this section. Id.

Section 151.903 would appear tovest the county auditor with broad authority over county payroll procedures. However, webelieve that this section **must** be read in tion with sections conjunc113.047 and 154.043 of the Local Government Code.

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

Section 113.047 authorizes the disbursement ofsalaries incounties of 190,000 ormore and provides the following:

After the deposit of funds in a county depository, an officer ina county with a population of 190,000 ormore mav draw checks
onthe county treasurer todisburse the funds
aspayment forasalary orexpenses authorized by law or inpayment tothe 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 topay the salary ofan employee whose salary may be paid from the fund. (Emphasis added.)

ic‘ Statutes that relate tothe same general subject matter

are said tobe innari materia and are to be construed together inarriving atthe intention ofthe legislature. Calvert v. Fort Worth National Bank, 356 S.W.Zd 918 (Tex. 1962). In the event ofany conflict, the more specific statute prevails over themore 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.

Inour opinion, section 151.903 does no more than acknowledge the authority of the county auditor to "prescribe the system ofaccounting 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 apopulation of 190,000 andmore). Section 112.002 isderived from former V.T.C.S. article 1656a, as issection 113.047. Furthermore, section 151.903 does not expressly purport toplace in the auditor's hands the duty ofpreparing payroll or distributing paychecks, nor dowe believe that itcan reasonably be construed todo so. The auditor's authority to withhold

- payment ofsalaries for failure to file the required records

or information merely reflects the auditor's power torefuse tocountersign salary warrants where noright to receive the salary has been established asa 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 forthe payment of salaries, they must begiven effect.
Additionally, section 154.044(a) ofthe Local Government code states that each district, officer shall file county, and precinct
areport 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." Webelieve that this provision contemplates asituation inwhich anofficer other than the county auditor is responsible payroll. If the auditor for preparing the county
function, were authorized toperform this

itwould serve no purpose torequire officers to submit the information required by section 154.044, since the auditor presumably would already possess such information. Accordingly, webelieve that the Local Government Code provisions applicable toHarris County donot grant the county auditor the authority either to prepare the county payroll ortoprint and distribute paychecks.

IV.

Article XVI, section 44, of the Texas Constitution assigns noduties to the office ofcounty treasurer. The legislature is given the primary duty to prescribe the duties, which ithas done in intricate detail. this opinion would be incomplete However, ifwedid 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 apart ofthe functions ofthat constitutional office. An answer toyour question thus is incomplete without reflection onthe themes suggested by the Constitution.

Under our republican form ofgovernment, the power to govern isvested inthe people; theduty togovern isvested inoffices created under the Constitution and discharged by officers responsible to the people. Aconstitutional office isno empty honor ormere preferment. Rather, it is an essential element of republican government. Wiecek, See, e.a.,

"Republican Form of Government," 3Encvclopedia of the American Constitution 1558 (1986). Each constitutional office is essential tothe whole scheme of freedom and sovereignty established bythe Constitution because it has at its core certain irreducible functions which make up the threads ofthe office. Inturn, each constitutional office isapart of thewhole fabric ofrepublican government.

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

The core functions of aconstitutional office may not be taken away, or shared with another office, save by aconP stitutional amendment. The officer holding the constitutional office thus must bepermitted toperform any tasks properly emanating from the core functions ofthe office -- functions that are historically or logically within the penumbra ofpower attached to the office as anelement of republican government. See Exnarte 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 ofthe county payroll.

To reiterate, the treasurer isthe chief custodian of county funds, Local Gov't Code 5113.001, and has broad powers concerning the disbursement ofthose funds, id. at 5113.041, including the sole power to "disburse money belonging to the county" and topay the county's money s directed bv the commissioner's court, id. The preparation ofthe county payroll logically falls within the penumbra of theministerial duties created bythese functions at the
core of the constitutional office ofcounty treasurer. In themain, the best reasoned prior opinions ofthis office cited above fully support this conclusion.

Under our system of county government, there exists a delicate system ofchecks and balances toprotect the funds ofthe county. The county auditor occupies a significant role inthis 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 ofthe office demonstrated, the county auditor isgiven broad powers to oversee county finances and prescribe systems for the accountability of county funds. The effectiveness ofthis checks and balances system depends, inlarge 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 ofthe county auditor isassured byplacing the power of appointment anddismissal 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 inthe form of pay checks.

P Inthe absence ofexpress legislative authorization for

the auditor to prepare the county payroll and have the checks printed and distributed, weare hesitant to conclude that hemay perform these responsibilities. The auditor's primary responsibility istoreview the books ofothers and to see to the enforcement ofthe laws governing county

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

finances. Local Gov't Code 5112.006. Unless the legislature expressly permits the auditor toperform administrative work that issubject to audit, wewould assume hewould not be inaposition toaudit his own work. See aenerallv 22 T.A.C. 95501.11, 501.15.

Thus, the county auditor, aswe have detailed above, may have critical duties to perform with regard to the disbursement ofcounty funds, even inthe area of payrolls. At thevery least, the auditor has anover-arching assignment to see that county funds are expended according to law and under a system that allows
are critical elements inthe foraccountability. These scheme ofchecks and balances imposed ingeneral by the constitution, and inparticular by the numerous statutes wehave cited. Most assuredly, the auditor may not preempt apower which should be among the
core functions ofanofficer of full constitutional dignity.

V.

Based onthe foregoing discussion, webelieve that the duty ofpreparing 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 toactually perform the clerical tasks ofprinting andwriting inthe figures on the face ofthe check. bewritten," i.e Rather, the officer may "cause itto

A, may delegate this task. Webelieve that both logic and constitutional other official law dictate that the only to whom .this function properly may be delegated isthe 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 orexpend").

The commissioners court, pursuant to its authority to "audit and settle accounts against the county" and direct their payment, must give itsprior approval before warrants inpayment of salary may be issued. Id. §115.021; General Opinion Attorney JM-192 (1984). The county auditor prescribe.the may forms and systems necessary toprocess the county payroll. Local Gov't Code 5151.903(d). The auditor's countersignature isstill required on salary warrants. Id. 5113.043. Attorney General Opinion JM-192 (1984).

It issuggested that county officers inHarris 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. 4547L

*. Honorable Mike Driscoll -Page 19 (JM-911)

3912e, section 19(i) (nowLocal Government Code section 154.007). Under this provision, the commissioners court may order that money that would otherwise bedeposited in the salary fund bedeposited inthe general fund ofthe It is county.

argued that this action, coupled with the commissioners court power to fix salaries ofcounty 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 ofthe general fund to pay

issue salary noway diminishes anofficer's authority to

warrants. Indeed, section 154.007(b) states that inacounty where the general fund ismade the source ofpayment of salaries, areference inchapter 154 to a salary fundmeans the general fund. inHarris County Consequently, -officers
are authorized to issue warrants on the general fund inpayment ofemployees' salaries.

Inview of our answer toyour question, we conclude that Attorney General Opinion Nos. M-299 (1968) and C-218 (1964) are inerror tothe 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 ofHarris County may prepare warrants for the payment of salaries ofcounty officers and employees, it ismodified to conform with this opinion. The holding of Attorney General Opinion JM-192 (1984), that prior approval ofthe commissioners court, but not ofthe county auditor, isrequired before salary warrants may be issued, involved a county with apopulation less than 190,000. See Local Gov't Code §§154.021-154.026 (salary provisions applicable to such counties). To the extent that itsuggests that the commissioners court, rather than county officers, is for issuing salary responsible warrants incounties with a population greater than 190,000, itshould not be followed.

Attorney General Opinion Nos. M-657 (1970) and O-4462 (1942)Iwhich concluded that the county treasurer was the proper official tomake delivery ofcounty warrants to the payee, are not inconflict with this opinion because they
concern the treasurer's aeneral authority topay and apply county funds, rather than the specific duty to draw and issue checks or warrants inpayment ofsalaries. Comuare Attorney General Opinion M-965 (1971). Attorney General P Opinion VW-1107 (1961), which held that the county treasurer

has authority todisburse funds inpayment ofsalaries, is not inconflict with this opinion, disburse funds does not since the authority to include the authority to issue checks orwarrants for salaries. Attorney General Opinion JM-585 (1986), which dealt with specific statutory language -

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

concerning payroll deductions, isnecessarily limited to its facts, and istherefore not inconflict with this opinion.

To summarize, we county payroll conclude that the duty of preparing and drawing tocounty 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 bedelegated such duties.The county treasurer may The county auditor has
noauthority toperform these specific functions.

SUMMARY

The duty ofpreparing 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 bedelegated such duties. The county auditor has no authority toperform these specific functions.

JIM MATTOX Attorney General ofTexas

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

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