Can a Texas county auditor hire outside lawyers without the county attorney's consent?

TX AG Opinion GA-0545: Can a county auditor hire its own lawyer without the county attorney?

Plain-English summary

After a new Henderson County auditor took office, several audit-office employees left or were fired and the auditor terminated the county's Information Technology director (whose department reported to the auditor). The office was then hit with a wave of open-records requests that appeared tied to the firings. One request alone sought all county emails for the prior twelve months, and the auditor estimated the combined requests would have required reviewing and producing over 150,000 documents at county expense. On instructions from the district judges, but without the county attorney's approval or the commissioners court's prior authorization, the auditor hired outside legal counsel to deal with the requests. The Henderson County Attorney asked the Attorney General two things: whether the district judges could authorize the auditor to hire that counsel, and whether the auditor's approval of the resulting invoices violated Local Government Code section 113.065, which bars an auditor from approving a claim not incurred as provided by law.

The Attorney General first narrowed the dispute. The opinion noted that district judges and a county auditor can in some circumstances hire outside counsel, while a commissioners court's contracting and budgeting power can in other circumstances limit that authority. But the opinion did not have to map where those spheres collide, because the commissioners court here had already allowed the payments after learning the district judges authorized the hire. So the real question became whether retaining outside counsel was improper because counsel was performing "duties of the County Attorney's Office" without the county attorney's consent.

The opinion answered no. Government Code section 41.007 requires a county or district attorney to give written legal advice to county officials on request, but that duty is not exclusive. Texas courts have long held that representing the county in its general civil legal business is not among a county attorney's prescribed legal duties. The county attorney had pointed to a prior opinion, GA-0074, where the El Paso County Attorney could block a board from hiring outside counsel, but that turned on a special statute giving the El Paso County Attorney authority over "all civil matters." No comparable statute existed for Henderson County, so that case did not control. Because the county attorney had no exclusive duty over all the county's civil legal affairs, the auditor's retention of outside counsel did not improperly impinge on the county attorney's role, and the lack of consent alone did not make the claim invalid under section 113.065. The opinion stopped short of certifying the payment as lawful, because whether the claim was "incurred as provided by law" depended on facts the opinion process cannot decide.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The county-attorney, county-auditor, and budget provisions cited here (including the Government Code sections on county-attorney duties and the Local Government Code auditor provisions) may have been amended since 2007, and the reserved section 45.207 covering Henderson County may now read differently. Confirm the current statutes before relying on this analysis.

Who this opinion affected (as of 2007)

County auditors: The opinion told auditors that, in a county whose county attorney lacks a special statute giving that office authority over all civil matters, retaining outside legal counsel does not by itself trespass on the county attorney's duties, and the absence of the county attorney's consent does not alone make the payment claim invalid.

County and district attorneys: The opinion reaffirmed that a county attorney's duty to advise officials on request (section 41.007) is real but not exclusive, and that representing the county in ordinary civil litigation is not among a county attorney's prescribed duties absent a statute saying so.

District judges and commissioners courts: The opinion recognized that district judges and the commissioners court each have a role in authorizing and funding outside counsel, but did not need to resolve the boundaries because the commissioners court had already allowed the payments.

Common questions

Does a Texas county attorney have to approve every lawyer the county hires?
No, based on this opinion. The Attorney General concluded the county attorney's duty to advise officials is not exclusive, and absent a special statute giving the county attorney authority over all civil matters, another county office can retain outside counsel without the county attorney's consent.

Why did the auditor hire outside lawyers in the first place?
The opinion explained the office faced a flood of open-records requests tied to personnel changes, one estimated to require producing over 150,000 documents, and the auditor retained counsel, on the district judges' instruction, to handle them.

Didn't a prior opinion say a county board couldn't hire its own counsel?
The opinion distinguished GA-0074, where the El Paso County Attorney could object because a special statute gave that office authority over "all civil matters." No such statute applied to Henderson County, so the result differed.

Did the Attorney General say the invoices were legal to pay?
Not entirely. The opinion concluded the lack of consent alone did not make the claim invalid under section 113.065, but whether the claim was "incurred as provided by law" depended on facts the opinion process cannot determine.

Background and statutory framework

The county attorney asked whether the district judges could authorize the auditor to hire outside counsel and whether approving the invoices violated Local Government Code section 113.065, which provides that the county auditor "may not audit or approve a claim unless the claim was incurred as provided by law" (Tex. Loc. Gov't Code Ann. § 113.065 (Vernon 1999)). The opinion acknowledged that, in some circumstances, district judges and a county auditor may have implied authority to hire outside counsel (Tex. Loc. Gov't Code Ann. §§ 84.001-.902 (Vernon 1999 & Supp. 2006); Bullock v. Calvert, 480 S.W.2d 367, 372 (Tex. 1972)), and that in other circumstances the commissioners court's authority over county business and the county budget could limit that authority (Tex. Const. art. V, § 18(b); Tex. Loc. Gov't Code Ann. §§ 111.001-.013 (Vernon 1999 & Supp. 2006)). It did not resolve that boundary because the commissioners court had already allowed the payments.

On the merits, Government Code section 41.007 requires a district or county attorney, on request, to give a written opinion or advice to county or precinct officials relating to their official duties (Tex. Gov't Code Ann. § 41.007 (Vernon 2004)). That duty is construed as a duty to advise on request, but it is not exclusive (Gibson v. Davis, 236 S.W. 202, 212 (Tex. Civ. App.-Galveston 1921, no writ); Guynes v. Galveston County, 861 S.W.2d 861, 863-64 (Tex. 1993)). Texas courts have recognized that "it is not one of [a county attorney's] prescribed legal duties to represent the county in its general legal business or the conduct of ordinary civil actions" (Guynes, 861 S.W.2d at 864 (quoting Hill Farm, Inc. v. Hill County, 425 S.W.2d 414, 419 (Tex. Civ. App.-Waco 1968), aff'd, 436 S.W.2d 320 (Tex. 1969)); see also Terrell v. Greene, 31 S.W. 631, 635 (Tex. 1895)).

The opinion distinguished GA-0074, in which the El Paso County Attorney could block a county board from hiring outside counsel, because a separate statute required that office to represent El Paso County and its officials "in all civil matters" (Tex. Gov't Code Ann. § 45.171(a)). No comparable statute governed Henderson County (Tex. Gov't Code Ann. § 45.207 (Vernon 2004) (reserved)). Because the Henderson County Attorney had no exclusive duty over all the county's civil legal affairs, the opinion concluded the auditor's retention of outside counsel did not improperly impinge on the county attorney's duties, and the absence of consent did not make the claim invalid under section 113.065. The opinion noted that other facts might bear on the legality of the claim, which the opinion process cannot evaluate, citing GA-0139. It also noted, without deciding, the auditor's general independence from county control and the district judges' role in appointing and removing the auditor and approving the auditor's assistants (Tex. Loc. Gov't Code Ann. §§ 84.002 (Vernon Supp. 2006), 84.009 (Vernon 1999), 84.021 (Vernon 1999)).

Citations

Statutes and constitutional provisions:

• Tex. Loc. Gov't Code Ann. § 113.065 (Vernon 1999)
• Tex. Loc. Gov't Code Ann. §§ 84.001-.902 (Vernon 1999 & Supp. 2006)
• Tex. Loc. Gov't Code Ann. §§ 111.001-.013 (Vernon 1999 & Supp. 2006)
• Tex. Loc. Gov't Code Ann. §§ 84.002, 84.009, 84.021 (Vernon 1999 & Supp. 2006)
• Tex. Gov't Code Ann. § 41.007 (Vernon 2004)
• Tex. Gov't Code Ann. § 45.171(a)
• Tex. Gov't Code Ann. § 45.207 (Vernon 2004)
• Tex. Const. art. V, § 18(b)

Cases:

• Bullock v. Calvert, 480 S.W.2d 367, 372 (Tex. 1972)
• Terrell v. Greene, 31 S.W. 631, 635 (Tex. 1895)
• Gibson v. Davis, 236 S.W. 202, 212 (Tex. Civ. App.-Galveston 1921, no writ)
• Guynes v. Galveston County, 861 S.W.2d 861, 863-64 (Tex. 1993)
• Hill Farm, Inc. v. Hill County, 425 S.W.2d 414, 419 (Tex. Civ. App.-Waco 1968), aff'd, 436 S.W.2d 320 (Tex. 1969)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0545
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0545.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

May 4, 2007

The Honorable James H. Owen
Henderson County Attorney
100 East Tyler Street, Room 100
Athens, Texas 75751

Opinion No. GA-0545

Re: Whether district judges may authorize a county auditor to retain outside legal counsel for the purpose of responding to requests under the Public Information Act (RQ-0550-GA)

Dear Mr. Owen:

You ask us to

advise whether District Judges whose [d]istricts include Henderson County, Texas may authorize[] the County Auditor to hire legal counsel for Henderson County to perform duties of the County Attorney's Office without the consent of the Commissioners Court or the County Attorney and appropriate [c]ounty [f]unds outside the normal budget process for the payment for said services[.]

You also ask whether "the approval of invoices by the County Auditor's office for payment of said legal services violate[s] [Local Government Code section] 113.065," which prohibits a county auditor from approving a claim not incurred as provided by law. Request Letter, supra note 1, at 1, 4; see TEX. LOC. GOV'T CODE ANN. § 113.065 (Vernon 1999).

As background to your question you inform us that on, or shortly after, the appointment of the County Auditor (the "Auditor"), "several employees of the audit office were discharged from employment or quit." Request Letter, supra note 1, at 1. You also tell us that the Auditor terminated the Information Technology Director. See id. You state that the Information Technology office and the Auditor's office subsequently received numerous open records requests that "appear to be related to the employment terminations." Id. You further state that upon instruction from the District Judges but without your approval or the prior authorization of the Henderson County Commissioners Court (the "Commissioners Court"), the Auditor retained legal counsel to address the open records requests. See id. at 2.

Your question raises fundamental issues involving the intersection of the different spheres of authority of independent elected and appointed officials. We recognize that, in certain circumstances, district judges and a county auditor may have authority to independently hire outside legal counsel. See TEX. LOC. GOV'T CODE ANN. §§ 84.001-.902 (Vernon 1999 & Supp. 2006); Bullock v. Calvert, 480 S.W.2d 367, 372 (Tex. 1972) (public officers have the implied authority necessary to achieve a power or an object expressly granted). And we recognize that, in other circumstances, the contracting and budgeting authority of a county commissioners court might otherwise limit the district judges' and county auditor's authority. See TEX. CONST. art. V, § 18(b) (commissioners court's jurisdiction over county business); TEX. LOC. GOV'T CODE ANN. §§ 111.001-.013 (Vernon 1999 & Supp. 2006) (commissioners court's authority over county budget). To address your concerns, however, we need not determine where the various spheres of authority collide. Here, the Commissioners Court appears to be willing to allow the claim based on the District Judges' order. See Request Letter, supra note 1, at 2 (stating that "[w]hen the initial invoice was presented the Commissioners Court inquired about the bill and was told the district judge[s] had authorized it[,] and the Commissioners Court allowed the payment"); see also Mayfield Brief, Exhibit A8 (including Commissioners Court's minutes reflecting authorization to pay hired counsel's subsequent monthly invoices). Thus, it appears that your first inquiry can be narrowed to whether the retention and payment of the outside legal counsel was improper because such counsel was sought to "perform duties of the County Attorney's Office" without your consent. Request Letter, supra note 1, at 3.

You offer two bases for your argument that a "County entity may not employ outside counsel to perform the duties of the County Attorney without the consent of the County Attorney." Id. First, you rely on section 41.007 of the Government Code and on the proposition that a public officer cannot be ousted from his legal duties. See id.; see also Terrell v. Greene, 31 S.W. 631, 635 (Tex. 1895). Section 41.007 provides that a "district or county attorney, on request, shall give to a county or precinct official of his district or county a written opinion or written advice relating to the official duties of that official." TEX. GOV'T CODE ANN. § 41.007 (Vernon 2004). Section 41.007 is construed to impose a duty on district and county attorneys to provide advice to certain officials on request. See Gibson v. Davis, 236 S.W. 202, 212 (Tex. Civ. App.-Galveston 1921, no writ); see also Guynes v. Galveston County, 861 S.W.2d 861, 863-64 (Tex. 1993); Tex. Att'y Gen. Op. No. GA-0153 (2004) at 2. That duty is not exclusive. See Guynes, 861 S.W.2d at 864; see also TEX. GOV'T CODE ANN. § 41.007 (Vernon 2004) (requiring opinion from a district or county attorney "on request"). Because the County Attorney does not have an exclusive duty to provide legal advice in all civil matters in Henderson County, the Auditor's retention of outside legal counsel does not improperly impinge on the statutory duties of the Henderson County Attorney. And while a county attorney may not be ousted from his or her duties, Texas courts have long recognized that "it is not one of [a county attorney's] prescribed legal duties to represent the county in its general legal business or the conduct of ordinary civil actions." Guynes, 861 S.W.2d at 864 (quoting Hill Farm, Inc. v. Hill County, 425 S.W.2d 414, 419 (Tex. Civ. App.-Waco 1968), aff'd, 436 S.W.2d 320 (Tex. 1969)).

Second, you rely on a prior opinion from this office to argue that the Auditor cannot retain outside legal counsel. See Request Letter, supra note 1, at 3; see also Tex. Att'y Gen. Op. No. GA-0074 (2003). In Attorney General Opinion GA-0074, this office concluded that the El Paso County Bail Bond Board was not authorized to hire outside legal counsel over the objection of the El Paso County Attorney. See Tex. Att'y Gen. Op. No. GA-0074 (2003) at 5. The conclusion in that opinion was based on the fact that, in addition to section 41.007, the El Paso County Attorney was required by another statute to represent El Paso County and its officials "in all civil matters." Id. at 2 (citing TEX. GOV'T CODE ANN. § 45.171(a)). The situation here is readily distinguishable in that there is no similar statute giving the Henderson County Attorney general civil authority over all Henderson County legal affairs. See TEX. GOV'T CODE ANN. § 45.207 (Vernon 2004) (reserved for Henderson County).

Your second inquiry is whether the approval of the invoices by the Auditor's office violates section 113.065 of the Local Government Code. See Request Letter, supra note 1, at 4. Section 113.065 provides that "[t]he county auditor may not audit or approve a claim unless the claim was incurred as provided by law." TEX. LOC. GOV'T CODE ANN. § 113.065 (Vernon 1999). As we have discussed, the Auditor's retention of outside legal counsel does not impinge upon any exclusive duty of the Henderson County Attorney, and the mere fact that the retention was without your consent does not make the claim for payment an invalid claim. Accordingly, your concerns here do not make the payment of the claim illegal under section 113.065. There may be, however, other facts and circumstances to be considered in connection with the legality of the claim. See Tex. Att'y Gen. Op. No. GA-0139 (2004) at 5 (stating that the opinion process does not determine questions of fact). Thus, we cannot ultimately opine on whether the claim was "incurred as provided by law" under section 113.065 of the Local Government Code.

SUMMARY

The County Attorney of Henderson County has no exclusive duty to represent Henderson County in all civil legal matters. Thus, the County Auditor's retention of outside legal counsel did not improperly impinge on an exclusive duty of the County Attorney. The question as to whether any claim for payment of the legal services was "incurred as provided by law" under section 113.065 of the Local Government Code requires an examination of facts and circumstances that the opinion process cannot address.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee