Can a county auditor require constables to submit a monthly report listing every paper they served?

Texas AG Opinion JM-1186: Can a County Auditor Make Constables File a Monthly Service Report?

Plain-English summary

The Frio County Attorney asked about a monthly report the county auditor required from the county's four constables, listing every civil process instrument and criminal warrant each constable received, along with the dates received and served, sworn before a notary. The constables, who use their own vehicles and are reimbursed at a fixed per-mile rate set by the commissioners court, argued they shouldn't have to file this report since they don't collect fees when serving these instruments. The auditor pointed to Local Government Code section 115.001, which gives the auditor continual access to examine the correctness of officers' books, accounts, reports, and vouchers, and asked whether she could withhold approved mileage payments if the constables refused to comply.

The Attorney General concluded the auditor could not require this particular report. Section 115.001 lets the auditor examine and investigate the correctness of existing records, but the opinion found the auditor had instead instituted a new reporting requirement aimed at determining whether the constables were doing their jobs, something outside the auditor's statutory role except where it serves a specific auditing duty. The form itself, the opinion noted, only showed that an instrument was served and how long that took, which fell short of substantiating an actual mileage claim; a form that also captured the place of service and miles traveled per instrument might have been different. Because the office of county auditor's core function is examining and approving claims against the county, not policing whether officeholders perform their statutory duties, the opinion found no basis in section 115.001 for the report and did not need to reach whether the auditor could withhold mileage payments for non-compliance.

Currency note

This opinion was issued in 1990. 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 mentioned here.

Who this opinion affected (as of 1990)

County auditors: The opinion meant an auditor's authority under section 115.001 to examine the correctness of records did not extend to creating a new reporting system whose real purpose was checking whether an officer was performing the duties of the office, unless that inquiry served a specific statutory auditing function like substantiating a mileage claim.

County constables and other fee-based or mileage-reimbursed officials: The opinion protected constables (and by the same reasoning similarly situated officials) from having to complete a reporting form that did not actually document what it needed to, in order to receive already-approved mileage reimbursement.

Commissioners courts: The opinion left intact the commissioners court's authority to set travel reimbursement rates under Local Government Code chapter 152, while separating that authority from the auditor's distinct claims-examination role under sections 113.064 and 113.065.

Common questions

Can a county auditor require constables to log every paper they serve, just to check up on them?
No, according to this opinion. The Attorney General found that a report showing only the instrument received, the date received, and the date served did nothing more than confirm the constable had performed the job, which is not what section 115.001 authorizes the auditor to police.

Could a different, more detailed report have passed muster?
The opinion suggested a different conclusion might follow if the form also captured the place of service and the mileage traveled in serving each instrument, information that would actually help substantiate a mileage reimbursement claim rather than simply track job performance.

Does the auditor have any power to question a constable's mileage claim?
Yes. The opinion recognized that a county auditor may require a county officer or employee to substantiate a mileage claim with documentation showing the travel was for official business, consistent with the auditor's claims-approval role under Local Government Code sections 113.064 and 113.065, and citing Smith v. McCoy on the auditor's duty to check a claim's compliance with county finance law.

Background and statutory framework

The Frio County Auditor required the county's four constables to complete a monthly form documenting civil process and criminal warrants they served, including the instrument's style, the date it was received, and the date it was served, sworn before a notary. The constables use their own vehicles for official travel and submit separate mileage reports at a per-mile rate the commissioners court has fixed under Local Government Code chapter 152. The auditor relied on Local Government Code section 115.001, which gives the county auditor continual access to examine and investigate the correctness of the books, accounts, reports, and vouchers of any county officer, and on sections 112.001 and 112.006, which in smaller counties let the auditor adopt regulations for the speedy and proper collection, checking, and accounting of county funds and give the auditor oversight of records kept by officers who collect money for the county.

The opinion also considered Local Government Code section 113.064, which requires that claims, bills, and accounts against the county be filed in time for the auditor to examine and approve them before a commissioners court meeting, bars payment of a claim not examined and approved by the auditor, and lets the auditor require a claim to be verified by affidavit; and section 113.065, which bars the auditor from approving a claim not incurred as provided by law. The opinion, citing Smith v. McCoy, noted the auditor's responsibility to determine whether a claim strictly complies with county finance law before approving it, and cited Attorney General Opinion JM-1099 (1989) for the related point that where a person's right to a payment is established as a matter of law, the auditor is under a ministerial duty to approve it, though the auditor may still require basic information necessary to carrying out other statutory duties.

Applying these provisions, the opinion distinguished between an auditor examining the correctness of existing records under section 115.001 and an auditor instituting a new reporting system to monitor whether officers are discharging their duties, concluding the latter falls outside section 115.001's authorization except where necessary to a specific statutory duty of the auditor, such as substantiating a mileage claim under sections 113.064 and 113.065. Because the constables' form only recorded the date and identity of the instrument and the date served, without capturing the place of service or miles traveled, the opinion found it fell short of substantiating a mileage claim and, at most, showed only that the constables were performing their statutorily imposed duties, a purpose the opinion held was not a proper function of the county auditor's office. Given that conclusion, the opinion found it unnecessary to decide whether the auditor could withhold approved mileage payments for a constable's failure to file the report.

Citations

Statutes:

• Local Gov't Code § 115.001
• Local Gov't Code § 152.011
• Local Gov't Code § 112.001
• Local Gov't Code § 112.006
• Local Gov't Code § 113.064
• Local Gov't Code § 113.065

Cases:

• Smith v. McCoy, 533 S.W.2d 457 (Tex. Civ. App.-Dallas 1976, writ dism'd)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1186
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1186.pdf

Original opinion text

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

July 18, 1990

Honorable James Warren Smith, Jr.
Frio County Attorney
P. O. Box V
Pearsall, Texas 78061-1138

Opinion No. JM-1186

Re: Authority of a county auditor to require constables to submit monthly report (RQ-1878)

Dear Mr. Smith:

You ask the following questions relative to the authority of the county auditor to require constables to submit monthly reports.

(1) May the Frio County Auditor require the four Frio County Constables to provide a monthly report . . . listing the civil process instruments and criminal warrants that they receive and the date that they served them even though they do not collect fees or moneys when serving these instruments?

(2) Will failure on the part of the constables to fill out and turn in such reports authorize the County Auditor to withhold payment to them of their monthly mileage which has been approved and set by Frio County Commissioners Court.

You advise that the county auditor has required the county's four constables to report in writing all civil process and criminal warrants they serve. You enclose a monthly report form prepared by the auditor. The form provides spaces for the constable to enter (1) date, (2) style and notice of instrument, (3) date received, and (4) date served. The form provides for the instrument to be sworn and subscribed by the constable before a notary public.

You state that the constables use their own vehicles in discharging the duties of their office. They submit separate monthly mileage reports logging the miles they travel in the performance of their duties. The commissioners court has fixed a sum for each mile traveled by a constable in the discharge of official duties. You relate that the constables feel that they should not be required to prepare an additional report relating to the service of each civil and criminal process they receive since they do not collect any money or fee in the course of serving such instruments.[1]

You advise that the auditor's position is that she has the authority to require such a report under section 115.001 of the Local Government Code. Section 115.001 provides in pertinent part:

The county auditor shall have continual access to and shall examine and investigate the correctness of:

(1) the books, accounts, reports, vouchers, and other records of any officer.

Section 152.011 of the Local Government Code authorizes the commissioners court to set the amount of compensation and office and travel expenses for county and precinct officials and employees paid wholly from county funds. Attorney General Opinion JM-879 (1988) concluded that the county auditor could not require documentation from members of the commissioners court who receive fixed monthly travel allowances. However, the opinion noted that the sum must be fixed by the commissioners court at a figure that reasonably relates to expenses actually incurred in the commissioners' discharge of county business. Unlike the fixed monthly travel allowance in Attorney General Opinion JM-879, the commissioners court in your county has provided for a sum per mile for the constables in the discharge of their official duties.

1. Section 112.001 of the Local Government Code authorizes the county auditor in counties with less than 190,000 population to adopt and enforce regulations that the auditor considers necessary for the speedy and proper collecting, checking, and accounting of funds that belong to the county. Section 112.006 provides that the county auditor has oversight of the records of an officer who is required by law to receive or collect money that is intended for the use of the county or that belongs to the county.

Section 113.064 of the Local Government Code concerns approval of claims by the county auditor. Section 113.064 provides:

(a) In a county that has the office of county auditor, each claim, bill, and account against the county must be filed in sufficient time for the auditor to examine and approve it before the meeting of the commissioners court. A claim, bill, or account may not be allowed or paid until it has been examined and approved by the auditor.

(b) The auditor shall stamp each approved claim, bill, or account. If the auditor considers it necessary, the auditor may require that a claim, bill, or account be verified by an affidavit indicating its correctness.

(c) The auditor may administer oaths for the purposes of this section. (Emphasis added.)

Section 113.065 of the Local Government Code provides that the "county auditor may not audit or approve a claim unless the claim was incurred as provided by law." The county auditor has the responsibility, before approving a claim against the county, to determine whether it strictly complies with county finances. Smith v. McCoy, 533 S.W.2d 457 (Tex. Civ. App.-Dallas 1976, writ dism'd).

The matter of whether the auditor is under a ministerial duty to approve salary payments owed by the commissioners court was considered by Attorney General Opinion JM-1099 (1989). It was noted that the most recent group of opinions of this office has concluded that where a person's right to a salary is established as a matter of law, the auditor is under a ministerial duty to approve the claim. See Attorney General Opinion JM-986 (1988). Under your scenario the auditor is dependent on the correctness of an unsubstantiated claim for miles traveled.

Attorney General Opinion JM-1099 at 6 stated that while "it is arguable that the county auditor has discretion to approve or disapprove salary payments pursuant to section 113.064 of the Local Government Code, we believe the auditor nevertheless may require county officials to supply basic information necessary to the accomplishment of other duties." However, we are not here addressing a question of salary payments.

The auditor has the responsibility for establishing financial procedures and internal accounting controls for the county. Attorney General Opinion W-579 (1970). We believe that a county auditor may require a county officer or employee to substantiate a claim with documentation that the claimed mileage for which he is seeking payment was in the conduct of the official business. However, as was pointed out in Attorney General Opinion JM-1099, it is not generally within the province of the auditor to ensure that county officers and employees are complying with the duties of their office or employment imposed on them by law where such efforts are not necessary to the accomplishment of the auditor's statutory duties.

Under the scenario you have submitted, the auditor has instituted a reporting requirement for the constables rather than examining the correctness of an officer's or an employee's records under section 115.001. We do not believe that section 115.001 authorizes the auditor to require a reporting system solely for the purpose of determining whether an officer or employee is discharging the duties of his office.

While the form in question that you have submitted may bear some relevance to mileage traveled in performance of official duties, in our opinion it falls far short of substantiating a claim. A report that only reflects the date process was received, the identity of the instrument, and the date served reveals nothing more than the fact that the instrument was served and the lapse of time between receipt and service. While such information may be relevant to the determination of the validity of a claim for mileage reimbursement, it does not, standing alone, supply the auditor with enough information to approve the claim. At most, the form in question only shows that the constable is performing duties imposed on his office by law. As heretofore noted, it is not a proper function of the county auditor to ensure that a county officer or employee is performing the duties of his office or employment unless the inquiry is in furtherance of a discrete statutory duty of the auditor. The form you have supplied does not accomplish this. A different conclusion might be indicated if the form prescribed by the auditor required additional information reflecting the place of service and the mileage traveled in serving each instrument.

We find it unnecessary to answer your second question in light of our disposition of the first question.

SUMMARY

The county auditor may not require county constables to provide a monthly report listing only the identity of civil and criminal instruments they receive, the date of their receipt by the constables, and the date they are served.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General