Can a Texas county auditor refuse to create budget lines for a commissioners court's emergency budget amendment?

Plain-English summary

Mary L. Nichols, the Grimes County Auditor, sent the Attorney General five questions about the division of authority between her office and the Grimes County Commissioners Court over the county budget. The questions arose after the commissioners court passed an emergency amendment creating a new department, and the auditor did not agree that the situation amounted to the kind of grave public necessity the law requires for a mid-year amendment.

On the central question, the opinion concluded that a county auditor has no independent legal authority to refuse to create budget lines pursuant to a commissioners court's emergency budget amendment. After a budget is finally approved, a commissioners court may spend county funds only in strict compliance with the budget except in an emergency, and only the commissioners court may authorize an emergency expenditure to meet an unusual and unforeseen condition. The opinion found no statute giving an auditor the power to decide whether an emergency exists or to refuse to carry out the court's amendment. The auditor does have, and the opinion was careful to say she keeps, the duty to see to the strict enforcement of the law governing county finances, which includes making sure the commissioners court follows the emergency-amendment requirements. What she cannot do is countermand the court's emergency amendment.

The opinion then resolved three narrower questions. On notice, it said a meeting notice must give the public adequate notice of the action the court intends to consider, and that a court might find the particular notice here, which proposed to "modify the Treasurer's Budget," legally sufficient. On payroll duties, it said a county human resources director could be assigned payroll-preparation duties only if that director were a county officer to whom the Legislature has assigned the clerical functions associated with payroll preparation; absent such authority, the AG could not conclude the director was an "appropriate official." On check countersignatures, it concluded that only the county auditor and her qualified assistants may countersign a county check, so the county judge may not countersign one in the auditor's place.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

County auditors (as the opinion held for them): The opinion told the auditor she could not refuse to create budget lines to carry out the commissioners court's emergency budget amendment, even when she disagreed that an emergency existed. It also confirmed she retained her statutory duty to see to the strict enforcement of county finance law, including ensuring the court complied with the emergency-amendment requirements of section 111.010.

Commissioners courts (as the opinion described it): The opinion treated the commissioners court as the sole body able to determine that an emergency justified amending the budget, and said courts presume that determination is valid.

The public and meeting notice (where the opinion landed): The opinion said the notice had to adequately inform the public of the action the court intended to consider, and that a court might find this particular notice sufficient because the phrase "modify the Treasurer's Budget" signaled amendment of an existing budget.

Check countersignatures (as the opinion held): The opinion concluded that the auditor's duty to countersign checks could be delegated only to her qualified assistants and to no one else, so the county judge could not countersign a county check in her place.

Common questions

Can a Texas county auditor refuse to set up budget lines for an emergency budget amendment?
No. The opinion concluded the auditor has no independent legal authority to refuse to create budget lines pursuant to a commissioners court's emergency budget amendment.

Who decides whether a county budget emergency exists?
The opinion treated the commissioners court as the only body with discretion to determine that an emergency justifies a budget amendment, and noted that courts presume that determination is valid.

Does the auditor lose her oversight role, then?
No. The opinion stressed that the auditor keeps her duty to see to the strict enforcement of the law governing county finances, which includes making sure the commissioners court follows the emergency-amendment rules. She simply cannot countermand the court's amendment.

Can a county judge countersign a county check instead of the auditor?
No. The opinion concluded that the duty to countersign checks may be delegated only to the auditor's qualified assistants, not to the county judge.

Can a county human resources director handle payroll preparation?
Only in limited circumstances. The opinion said a human resources director could be an "appropriate official" for payroll preparation only if that director were a county officer to whom the Legislature has assigned the associated clerical functions; the AG found no authority establishing that and so could not conclude the director qualified.

Background and statutory framework

After final approval of a county budget, a commissioners court may spend county funds "only in strict compliance with the budget, except in an emergency." Tex. Loc. Gov't Code Ann. § 111.010(b) (West 2008). The court may authorize an emergency expenditure "only in a case of grave public necessity to meet an unusual and unforeseen condition that could not have been included in the original budget through the use of reasonably diligent thought and attention." Id. § 111.010(c). Courts presume that a commissioners court's determination of an emergency is valid. Bexar Cnty. v. Hatley, 150 S.W.2d 980, 987 (Tex. 1941).

A county auditor shall "see to the strict enforcement of the law governing county finances." Tex. Loc. Gov't Code Ann. § 112.006(b) (West 2008). The opinion read that duty to require the auditor to ensure the commissioners court complies with section 111.010, while finding no statute that lets an auditor decide whether an emergency exists or refuse to create budget lines under the court's amendment. The opinion drew on the principle that a county auditor and a commissioners court exercise their powers in relation to one another only as the law prescribes. Navarro Cnty. v. Tullos, 237 S.W. 982, 988 (Tex. Civ. App.-Dallas 1922, writ ref'd).

On notice, Texas law requires a governmental body to give written notice of the subject of each meeting, Tex. Gov't Code Ann. § 551.041 (West 2004), and the description must give a reader adequate notice of the proposed action, City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762, 765 (Tex. 1991). On payroll duties, because no statute assigns payroll preparation to a particular county official, a commissioners court may delegate that work to an "appropriate county official," meaning one the Legislature authorizes to perform the clerical functions involved. Comm'rs Court of Titus Cnty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). On countersignatures, in a county with an auditor the treasurer and depository may not pay a check unless the auditor countersigns it, Tex. Loc. Gov't Code Ann. § 113.043 (West 2008), and the auditor's duties pass during her absence only to her qualified assistants, id. § 84.021(d).

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. § 111.010 (West 2008)
• Tex. Loc. Gov't Code Ann. § 112.006(b) (West 2008)
• Tex. Loc. Gov't Code Ann. § 113.043 (West 2008)
• Tex. Loc. Gov't Code Ann. § 84.021(d) (West 2008)
• Tex. Loc. Gov't Code Ann. § 155.062(a)(1)
• Tex. Gov't Code Ann. § 551.041 (West 2004)

Cases:

• Bexar Cnty. v. Hatley, 150 S.W.2d 980, 987 (Tex. 1941)
• Navarro Cnty. v. Tullos, 237 S.W. 982, 988 (Tex. Civ. App.-Dallas 1922, writ ref'd)
• City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762, 765 (Tex. 1991)
• Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641, 646 (Tex. 1975)
• Cox Enter., Inc. v. Bd. of Trs. of Austin Indep. Sch. Dist., 706 S.W.2d 956, 958-59 (Tex. 1986)
• Comm'rs Court of Titus Cnty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997)
• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)
• Comm'rs Court of Harris Cnty. v. Fullerton, 596 S.W.2d 572, 578 (Tex. Civ. App.-Houston [1st Dist.] 1980, writ ref'd n.r.e.)
• Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 551 (Tex. 1981)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0872
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0872.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

August 9, 2011

Ms. Mary L. Nichols Opinion No. GA-0872
Grimes County Auditor
Post Office Box 510 Re: Authority of a commissioners court and a
Anderson, Texas 77830 county auditor with regard to county budget
amendments (RQ-0946-GA)

Dear Ms. Nichols:

You ask five questions about the authority of the Grimes County Auditor and Grimes County Commissioners Court.[1] Your first and second questions are as follows:

1. Must the County Auditor create new budget lines for a new department in the middle of a budget year to accommodate a budget amendment Order passed by [the] Commissioners Court, when the Auditor does not agree that there was a grave public necessity as a result of an unusual or unforeseen situation?

2. Does the County Auditor's statutory duty to "see to the strict enforcement of the law governing county finances" authorize her to decline to create such budget lines?

Request Letter at 1. Because these questions require the same analysis, we answer them together.

After final approval of a county budget, a commissioners court may spend county funds "only in strict compliance with the budget, except in an emergency." TEX. LOC. GOV'T CODE ANN. § 111.010(b) (West 2008). A commissioners court may authorize an emergency expenditure "only in a case of grave public necessity to meet an unusual and unforeseen condition that could not have been included in the original budget through the use of reasonably diligent thought and attention." Id. § 111.010(c). Courts presume that a commissioners court's determination of an emergency justifying a budget amendment is valid. Bexar Cnty. v. Hatley, 150 S.W.2d 980, 987 (Tex. 1941).

As you note, a county auditor shall "see to the strict enforcement of the law governing county finances." Request Letter at 1 (quoting section 112.006(b) of the Local Government Code). The law governing county finances grants only a commissioners court authority to make an emergency budget amendment. TEX. LOC. GOV'T CODE ANN. § 111.010(a)-(c) (West 2008). See also Tex. Att'y Gen. Op. No. O-6220 (1944) at 4 (opining that a commissioners court "is the sole agency having the discretionary power to determine the existence of such facts as would constitute an emergency justifying a budget amendment"). We have not found a statute authorizing a county auditor to determine whether there might be an emergency justifying a budget amendment. See generally TEX. LOC. GOV'T CODE ANN. §§ 84.001-.902, 111.001-.014, 112.001-.010, 113.041-.048 (West 2008 & Supp. 2010). See also Request Letter (identifying no statute that would grant such authority). Similarly, we have not found a statute authorizing an auditor to refuse to create budget lines pursuant to a commissioners court's emergency budget amendment. Id. Accordingly, a county auditor is not authorized to refuse to create budget lines pursuant to a commissioners court's emergency budget amendment. See Navarro Cnty. v. Tullos, 237 S.W. 982, 988 (Tex. Civ. App.-Dallas 1922, writ ref'd) (explaining that an auditor and a commissioners court exercise their powers in relation to one another only as the law prescribes).[2]

Your third question is whether "the Commissioners Court agenda item [is] sufficient to notify the public that it intends to declare an emergency and amend the current year's budget[.]" Request Letter at 1. The notice in question provided, "13. Consider and take action to modify the Treasurer's Budget to identify resources of the Human Resource Department."[3] Texas law requires a governmental body to give written notice of the subject of each of its meetings. TEX. GOV'T CODE ANN. § 551.041 (West 2004). The description of the subject must be sufficient to give a reader adequate notice of the proposed governmental action. City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762, 765 (Tex. 1991). The notice in question did not specify that the commissioners court intended to declare an emergency, but it did propose to amend the part of the treasurer's budget pertaining to human resources. See Notice at 4. Similarly, it did not specify that the commissioners court intended to amend the current year's budget, but it did propose to "modify the Treasurer's Budget," language that connotes amendment of something extant, like this year's budget, rather than creation of something new, like next year's budget. Id. Accordingly, a court might find that the notice is legally sufficient. See Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641, 646 (Tex. 1975) (finding a notice sufficient because even though it was "not as clear as it might be, ... it would alert a reader to the fact that some action would be considered with respect to" the specified subject). But see Cox Enter., Inc. v. Bd. of Trs. of Austin Indep. Sch. Dist., 706 S.W.2d 956, 958-59 (Tex. 1986) (indicating that the notice of a meeting at which a topic of special interest to the public will be discussed must be more detailed than it otherwise must be).

Your fourth question is whether a human resources director is "an 'appropriate official' to whom payroll preparation duties may be assigned[.]" Request Letter at 1. Because no statute assigns payroll preparation duties to a particular county official, a commissioners court may delegate them to "an appropriate county official." Comm'rs Court of Titus Cnty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). An "appropriate county official" in this context is one whom the Legislature authorizes to perform the clerical functions associated with payroll preparation duties. Id. (calling a county auditor "an appropriate county official" because he "has the authority to perform the clerical functions associated with payroll preparation"); id. at 82 (noting that a commissioners court may assign a county official's non-core functions, including those associated with payroll preparation, to another whom the Legislature authorizes to perform those functions). We have not found a statute that specifically authorizes a "human resources director" to perform a clerical function associated with payroll preparation, but at least one statute authorizes the county commissioners court to assign such duties to a "county officer." Id. at 81 (quoting section 155.062(a)(1) of the Local Government Code). Thus, if a county human resources director were a county officer, a county human resources director would be an "appropriate official." See Agan, 940 S.W.2d at 81; Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955) (holding that "the determining factor which distinguishes a public officer from an employee is whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others"). We received no briefing purporting to identify any legal authority establishing that a county human resources director would be a county officer and we have not found any such authority. See generally Request Letter. Because we are unaware of a statute that would authorize a county human resources director to perform clerical functions associated with payroll preparation, we cannot conclude that a county human resources director would be an "appropriate official" to whom payroll preparation duties may be assigned. See Agan, 940 S.W.2d at 81-82.

Your fifth question is whether "the County Judge [may] countersign a county check, instead of the County Auditor[.]" Request Letter at 1. You explain that, in "the past, the Treasurer's office sought the County Judge to countersign a county check when the County Auditor was not available." Id. at 2. In a county with a county auditor, "the county treasurer and the county depository may not pay a check or warrant unless it is countersigned by the county auditor to validate it as a proper and budgeted item of expenditure." TEX. LOC. GOV'T CODE ANN. § 113.043 (West 2008). A county auditor's official duties cannot be delegated to anyone other than her qualified assistants. Comm'rs Court of Harris Cnty. v. Fullerton, 596 S.W.2d 572, 578 (Tex. Civ. App.-Houston [1st Dist.] 1980, writ ref'd n.r.e.) (citing Tullos, 237 S.W. at 986). See also TEX. LOC. GOV'T CODE ANN. § 84.021(d) (West 2008) (providing that, during an auditor's absence, her assistants may perform the duties required by law of the auditor). Therefore, a county auditor's duty to countersign a check may be delegated to an auditor's qualified assistants and no one else.

SUMMARY

A county auditor has no independent legal authority to refuse to create budget lines pursuant to a commissioners court's emergency budget amendment.

A commissioners court's notice of a public meeting must adequately notify the public of the action the court intends to consider.

If a county human resources director were an officer to whom the Legislature has assigned a clerical function associated with payroll preparation, the human resources director could perform county payroll preparation duties.

Only the county auditor and her qualified assistants may countersign a check.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Jason Boatright
Assistant Attorney General, Opinion Committee

[1] Letter from Ms. Mary L. Nichols, Grimes County Auditor, to Honorable Greg Abbott, Attorney General of Texas (Feb. 17, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml ("Request Letter").

[2] We do not conclude that the county auditor lacks authority to see to the strict enforcement of the law governing county finances. On the contrary, we conclude that she has that authority. TEX. LOC. GOV'T CODE ANN. § 112.006(b) (West 2008). The duty to see to the strict enforcement of the law governing county finances requires her to ensure that, inter alia, the commissioners court complies with the requirements of section 111.010. Id. See also Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 551 (Tex. 1981) (holding that courts presume the Legislature has not done a useless act). We merely opine that, based on statutory text, Texas court cases, and prior opinions of this office, the county auditor lacks authority to countermand a commissioners court's emergency budget amendment. You do not ask, and we do not speculate, about another means of enforcing the law governing county finances. See generally Request Letter.

[3] Notice of the Regular Meeting of the Commissioners' Court of Grimes County, Texas, Tuesday, December 28, 2010, at 4 (on file with the Opinion Committee) ("Notice").