Can a Texas county probation department pay its bills without the county auditor signing off?

Plain-English summary

The Cherokee County Attorney asked the Attorney General whether the county's Community Supervision and Corrections Department (the CSCD, the local adult probation department) could use a check-payment procedure that left out the county auditor. The procedure its fiscal officer had prescribed paid the department's bills on the signature of the Cherokee County Treasurer with the CSCD Director countersigning, "instead of the County Auditor."

The opinion explained the structure. Government Code section 76.002 has the district judges trying criminal cases establish a CSCD, and section 76.004(c) lets those judges appoint a fiscal officer for the department, "other than the county auditor," who is responsible for "prescribing accounting procedures for the department." The CSCD is also a "specialized local entity" under Local Government Code section 140.003, and subsection 140.003(g) gives the county auditor the same authority to audit the entity's funds as the auditor has over county funds.

The key limit came from section 113.043 of the Local Government Code: in a county that has a county auditor, the county treasurer and the county depository "may not pay a check or order for payment unless it is countersigned by the county auditor to validate it as a proper and budgeted item of expenditure." The opinion relied on its earlier opinion DM-257 (1993), which had held that a probation department's funds must go in the county depository and that the auditor must countersign checks drawn on them. Because chapter 76 does not define the "accounting procedures" the fiscal officer may set and creates no exception to section 113.043, the opinion concluded that whatever those procedures cover, they cannot remove the county auditor from the countersignature process.

Currency note

This opinion was issued in 2012. 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

Community Supervision and Corrections Departments (as the opinion described it): The opinion concluded that a CSCD fiscal officer's accounting procedures could not direct that checks or warrants be paid without the county auditor's countersignature.

County auditors (as the opinion described it): The opinion treated section 113.043's countersignature requirement as mandatory in any county with an auditor, and read chapter 76 as not displacing it for probation-department payments.

Cherokee County and its treasurer (as the opinion described it): The opinion indicated the specific procedure described, paying on the treasurer's signature with the CSCD director countersigning instead of the auditor, could not validly remove the auditor from the process.

Common questions

Could a probation department set up its own check-signing rules?
The opinion said its fiscal officer may prescribe accounting procedures, but those procedures cannot drop the county auditor's countersignature, which section 113.043 requires.

Why does the county auditor have to countersign at all?
Section 113.043 provides that, in a county with an auditor, the treasurer and depository may not pay a check unless the auditor countersigns it "to validate it as a proper and budgeted item of expenditure."

Did chapter 76 give the department a way around that?
No. The opinion found that chapter 76 does not define the "accounting procedures" the fiscal officer may set and creates no exception to section 113.043's countersignature rule.

Background and statutory framework

Community Supervision and Corrections Departments are established under Government Code chapter 76 by the district and statutory county court judges trying criminal cases in a judicial district. Section 76.004(c) lets those judges appoint a fiscal officer "other than the county auditor," whose duties include prescribing the department's accounting procedures. Under Local Government Code section 140.003, a CSCD is a "specialized local entity," and the county auditor of the county managing its funds has the same audit authority as over county funds.

Section 113.043 of the Local Government Code requires the county auditor's countersignature before the treasurer or depository pays a check in a county that has an auditor. The opinion treated its prior opinion DM-257 (1993) as directly applicable; that opinion read subsection 140.003(f) to incorporate the requirements of sections 111.092 and 113.043 and make them generally applicable to payments by specialized local entities. Section 111.092 has the county auditor oversee the warrant process so a department's expenses do not exceed its budget appropriations.

Citations

Texas Attorney General opinions referenced:

• Tex. Att'y Gen. Op. No. DM-257 (1993)

Statutes:

• Tex. Gov't Code Ann. §§ 76.002(a)(1), 76.004(c)(3) (West Supp. 2012)
• Tex. Loc. Gov't Code Ann. §§ 140.003(a)(3), 140.003(g) (West 2008)
• Tex. Loc. Gov't Code Ann. §§ 111.092 (West 2008), 113.043 (West Supp. 2012)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0978
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0978.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

November 20, 2012

The Honorable Craig D. Caldwell Opinion No. GA-0978
Cherokee County Attorney
Post Office Box 320 Re: Whether the Cherokee County Community
Rusk, Texas 75785 Supervision and Corrections Department may prescribe
a procedure that permits the issuance of checks without
the signature of the county auditor (RQ-1069-GA)

Dear Mr. Caldwell:

You ask whether the Cherokee County Community Supervision and Corrections Department (the "CSCD") may prescribe a procedure that permits the issuance of checks without the signature of the county auditor.[1]

Section 76.002 of the Government Code requires the "district judge or district judges trying criminal cases in each judicial district and the statutory county court judges trying criminal cases in the county or counties served by the judicial district [to] establish a community supervision and corrections department[.]" TEX. GOV'T CODE ANN. § 76.002(a)(1) (West Supp. 2012). "The judges described by Section 76.002 may appoint for the department a fiscal officer, other than the county auditor." Id. § 76.004(c). Among other duties, the fiscal officer "is responsible for ... prescribing accounting procedures for the department." Id. § 76.004(c)(3). One such accounting procedure, prescribed by the CSCD's fiscal officer, provides "for the payment of bills of the CSCD [under] the signature of the Cherokee County Treasurer and for the counter signature to be that of the Director of the CSCD, instead of the County Auditor." Request Letter at 1. You inquire about the validity of this procedure.

The CSCD is a "specialized local entity" under the terms of section 140.003, Local Government Code, which includes in its definition "an adult probation office or department established for a judicial district." TEX. LOC. GOV'T CODE ANN. § 140.003(a)(3) (West 2008). Another portion of section 140.003 states that the "county auditor, if any, of the county that manages a specialized local entity's funds has the same authority to audit the funds of the entity that the auditor has with regard to county funds." Id. § 140.003(g). In a prior opinion, this office concluded that a probation department's funds must be deposited in the county depository and that the county auditor is required to countersign a check or warrant drawn on those funds, as provided by section 113.043 of the Local Government Code. See Tex. Att'y Gen. Op. No. DM-257 (1993) at 3-5, 8. In reaching this conclusion, the Attorney General stated that subsection 140.003(f) "incorporates the requirements of sections 111.092[2] and 113.043 of the Local Government Code and makes them generally applicable to payments made by specialized local entities." Id. at 5 (footnotes deleted). Attorney General Opinion DM-257 (1993) is directly applicable to the situation you pose.

Neither section 76.004 nor any other provision of chapter 76 of the Government Code defines the "accounting procedures" that the fiscal officer of the CSCD may prescribe. See TEX. GOV'T CODE ANN. §§ 74.001-.018 (West 2008 & Supp. 2012). Section 113.043 of the Local Government Code, however, makes clear that the county auditor may not be removed from the process of paying checks or warrants:

In a county with a county auditor, the county treasurer and the county depository may not pay a check or order for payment 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 Supp. 2012). Section 76.004 does not create an exception to this clear statutory rule.

As was the case in Attorney General Opinion DM-257 (1993), whatever the scope of the "accounting procedures" that the fiscal officer of the CSCD may prescribe, they may not include a directive that removes the county auditor from the process of countersigning checks or warrants.[2]

SUMMARY

Whatever the scope of the "accounting procedures" that the fiscal officer of the Cherokee County Supervision and Corrections Department may prescribe, they may not include a directive that removes the county auditor from the process of countersigning checks or warrants.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chairman, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Craig D. Caldwell, Cherokee Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. (June 7, 2012), http://texasattorneygeneral.gov ("Request Letter").

[2] Section 111.092 provides that "[t]he county auditor shall oversee the warrant process to ensure that the expenses of any department do not exceed budget appropriations for the department." TEX. LOC. GOV'T CODE ANN. § 111.092 (West 2008).