Can a Texas district judge appoint a special auditor or take a commissioners court's executive-session tapes?

Texas AG Opinion JM-1249 (Withdrawn): District Judge, Special Auditor, and Executive-Session Tapes

This opinion was withdrawn

Attorney General Opinion JM-1249, issued November 29, 1990, was withdrawn in its entirety by Attorney General Opinion JM-1249A on December 17, 1990. The withdrawal notice said only that JM-1249 was withdrawn and that the office would "advise you later as to the manner in which we will proceed." Because the opinion was withdrawn, its conclusions are not the Attorney General's position and should not be relied on. This page preserves the withdrawn opinion for the historical record and explains what it had said.

Plain-English summary (of the withdrawn opinion)

The dispute came out of Floyd County. The county attorney had retired in September 1989, and the commissioners court could not find a qualified successor. The district attorney for the four-county district, Becky McPherson, proposed to handle the county's misdemeanor prosecutions herself in exchange for a monthly county payment plus a yearly sum for office expenses. The commissioners court adopted the proposal in executive session on October 23, 1989, and for each misdemeanor case the county judge signed an "order appointing special prosecutor" under article 2.07 of the Code of Criminal Procedure.

A conflict then developed with the district judge, David Cave of the 110th District Court. In June and July 1990 the judge issued two orders: one "appointing a special auditor" (a Lubbock accounting firm) to audit all monies paid from the county treasury to McPherson, and one directing the county clerk to turn over the tape recording of the commissioners court's closed session for safekeeping and so the judge could listen to it. McPherson asked the Attorney General four questions about the judge's authority to do these things.

The withdrawn opinion had answered as follows. On the special auditor: a district judge has no authority to appoint a "special auditor" for a limited inquiry. Chapter 84 of the Local Government Code lets a district judge appoint only a regular county auditor, described throughout the chapter as an individual, holding a two-year term of office, meeting minimum qualifications; nothing in it authorizes appointing an auditing firm for a special, limited purpose. Specific-purpose audits are provided for by section 115.031 of the Local Government Code, but that section lodges the discretion to hire a specific-purpose auditor in the commissioners court, not the district judge. The opinion acknowledged the constitutional grant in article V, section 8 of the Texas Constitution giving district courts "general supervisory control" over commissioners courts, but read it, consistent with Attorney General Opinion JM-708 (1987), to be exercised only when a lawsuit is brought in district court seeking review of the commissioners court's actions. On that reasoning the withdrawn opinion had concluded the judge was without authority to appoint the special auditor, and that the county was not liable for the auditor's charges because the appointment was void and the commissioners court had no part in it.

On the executive-session tape: the withdrawn opinion had reasoned that under the Open Meetings Act (article 6252-17, V.T.C.S.), a certified agenda or tape of a closed session is available for in camera inspection by a district judge only if litigation has been initiated involving an alleged violation of the Act. No such litigation had been initiated when the judge ordered the clerk to hand over the tape. The governmental body that made the tape is its proper custodian and must preserve it for at least two years. The opinion had said the judge exceeded his authority in taking the tape and the county clerk violated the statute's prohibition on making a closed-session tape public by releasing it, though a statutory affirmative defense might be available to the clerk. On the final question, whether the judge should recuse himself in future litigation, the opinion declined to speculate because no litigation had been initiated.

All of that analysis was withdrawn about three weeks later. It is described here only to show what the withdrawn opinion had contained.

Currency note

This opinion was issued in 1990 and withdrawn the same year. Subsequent statutory amendments, court decisions, and later AG opinions may have changed the analysis, and the opinion itself was retracted. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Common questions

Is JM-1249 good authority?
No. It was withdrawn in its entirety by JM-1249A on December 17, 1990, so it does not state the Attorney General's position.

What did JM-1249A say?
Only that "Attorney General Opinion No. JM-1249 is withdrawn in its entirety" and that the office would advise later how it would proceed. It did not substitute a new conclusion.

What had the withdrawn opinion concluded about a district judge appointing a special auditor?
It had concluded that a district judge lacks authority to appoint a "special auditor" for a limited inquiry, and may appoint only a regular county auditor under chapter 84 of the Local Government Code. That conclusion was withdrawn.

What had it concluded about the executive-session tape?
It had concluded that, absent pending litigation under the Open Meetings Act, a district judge could not order a county clerk to turn over the tape recording of a commissioners court's closed session. That conclusion was withdrawn too.

Background and statutory framework (as discussed in the withdrawn opinion)

The withdrawn opinion turned on three bodies of law. First, chapter 84 of the Local Government Code, governing the county auditor: section 84.002 addresses the district judges' appointment of a county auditor in a county with a population under 10,000 (Floyd County qualified), and the surrounding sections describe the auditor as an individual selected for a two-year term who meets minimum qualifications. Second, section 115.031 of the Local Government Code, which provides for specific-purpose audits "by a disinterested, competent and expert public accountant" but places the discretion to order one in the commissioners court, with related provisions in sections 115.041 and 115.042. Third, the Open Meetings Act, article 6252-17, V.T.C.S., whose section 2A governs certified agendas and tape recordings of closed meetings, allowing in camera inspection by a district judge only where litigation over an alleged violation has been initiated, requiring the governmental body to preserve the tape for at least two years, and barring the unauthorized public release of a closed-session tape.

The opinion also discussed the constitutional supervisory power in article V, section 8 of the Texas Constitution, under which the district court has "appellate jurisdiction and general supervisory control over the County Commissioners Court, with such exceptions and under such regulations as may be prescribed by law," reading that power, in line with Attorney General Opinion JM-708 (1987) and cited case law, to be invoked through a lawsuit in district court rather than by a judge acting on his own. It noted separately, citing Open Records Decision No. 415 (1984), that the office does not review judicial orders, but treated the judge here as acting in an administrative capacity.

Citations

Statutory and constitutional authorities (as cited in the withdrawn opinion):

• Local Government Code ch. 84, including § 84.002 (appointment of a county auditor); §§ 84.003, 84.004, 84.006 (selection, two-year term, minimum qualifications)
• Local Government Code § 115.031 (specific-purpose audits); §§ 115.041, 115.042 (independent and joint special audits)
• Tex. Const. art. V, § 8 (district court's general supervisory control over the commissioners court)
• Open Meetings Act, V.T.C.S. art. 6252-17, § 2A (certified agendas and tapes of closed meetings)
• Code of Criminal Procedure art. 2.07 (order appointing special prosecutor)

Prior Attorney General materials referenced:

• Attorney General Opinion JM-708 (1987) (district court's supervisory control invoked by suit)
• Open Records Decision No. 415 (1984) (office does not review judicial orders)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1249
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1249.pdf

Original opinion text

This opinion was withdrawn in its entirety by JM-1249A. Best-effort transcription from a heavily scanned PDF. Minor errors may remain, and some case names in the footnotes were illegible in the scan and are left as printed. The linked PDF is authoritative.

Opinion No. JM-1249 has been withdrawn.

November 29, 1990

Honorable Becky B. McPherson
District Attorney
Floyd County
110th Judicial District
Floyd County Courthouse
Floydada, Texas 79235

Opinion No. JM-1249

Re: Supervisory authority of a district court over a commissioners court with regard to the transfer of funds from a county attorney to a district attorney (RQ-2068)

Dear Ms. McPherson:

You have requested our opinion about a dispute between your office and the district judge relating to your agreement with Floyd County to act as county attorney pro tem. For purposes of this opinion, we will discuss the law applicable to the facts as you have presented them.

In September 1989, the county attorney of Floyd County retired, and after a diligent search, the commissioners court was unable to find a qualified successor. You, as district attorney for a four-county district, then made a written proposal to the commissioners court that you would undertake misdemeanor prosecution responsibilities in exchange for a monthly payment of $1750.00 plus an additional amount of approximately $2165.00 per year to cover office supplies, travel, and liability insurance. You specifically agreed that no portion of this money would be used to supplement your salary, but it could be applied to the purchase of books and equipment, and to supplementation of staff salaries. The commissioners court, in executive session, adopted your proposal on October 23, 1989. Funds paid to your office by the commissioners court were placed with a Floydada bank in a segregated account in the name of "Becky McPherson, District Attorney, County Trust Account." Each misdemeanor case you handled was accompanied by an "order appointing special prosecutor," signed by the county judge, pursuant to article 2.07 of the Code of Criminal Procedure. You note that more than 100 such orders were issued between October 1989 and July 1990.

Subsequently, the Honorable David Cave, Judge of the 110th District Court, under date of June 20, 1990, issued an "order appointing a special auditor."[Footnote 1] The order reads, in part:

    This Court, pursuant to the powers vested in it by the laws of the State of Texas hereby appoints . . . of Lubbock, Texas, to perform a complete audit of all such monies which were paid out of the Treasury of Floyd County, Texas to the said Beckie McPherson, including but not limited to the $1,750.00 per month which was paid over to her as hereinabove set out.

    All persons having access to or control over any and all records, books, receipts, bank statements or other financial documents of whatsoever kind or nature are hereby Ordered to provide and make available for audit, copying and inspection to the said auditor at the places and times designated by the said auditor.

    The Auditor shall make such audit and examination with all deliberate speed and shall make a full and complete report to this court.

    If at any time during the performance of such duties the auditor may need access to or copies of any documents or things and may need Writs from this Court to procure any document or thing then he is hereby EMPOWERED AND DIRECTED to employ the services of George Thompson, Attorney at Law, Lubbock, Texas to file and prosecute such Writs or Petitions as the attorney may deem necessary and proper to effect and carry out the audit, the subject of this order.

On July 2, 1990, the special auditor made an in-person demand upon you for all financial records relating both to the disputed funds and to funds received from the state. You agreed to provide the former, but refused the latter on the ground that such funds were not subject to commissioners court supervision.

Also on July 2, 1990, Judge Cave issued a written order to the county clerk of Floyd County, instructing her to "turn over to . . . [the] District Clerk the tape recordings of the commissioners meeting held on October 23, 1989 for her to place in a safe deposit box for safe keeping." The judge also demanded an opportunity to listen to the tape recording.

You ask first about the propriety of the district judge's order appointing a special auditor.[Footnote 2] Section 84.002 of the Local Government Code provides, in pertinent part:

    (b) In a county with a population of less than 10,000:

        (1) the district judges may appoint a county auditor if the judges determine that the county's financial circumstances warrant the appointment; and

        (2) the district judges shall appoint a county auditor if:

            (A) the commissioners court finds that a county auditor is necessary to carry out county business and enters an order in its minutes stating the reason for this finding;

            (B) the order is certified to the district judges; and

            (C) the district judges find the reason stated by the commissioners court to be good and sufficient.

Floyd County is a county with a population of less than 10,000.

Chapter 84 of the Local Government Code, when read as a whole, makes clear that the only authority conferred on a district judge with regard to the appointment of an auditor is to appoint an individual to fill the position of regular county auditor. Section 84.003 speaks of the selection of "a person" as a county auditor; section 84.004 specifies a "term of office" of two years; and section 84.006 describes the minimum qualifications for the position in terms of "a person." (Emphasis added.) Nothing in chapter 84 or elsewhere gives any indication that the legislature contemplated the appointment by a district judge of an auditing firm rather than an individual, nor that it contemplated the appointment of an auditor for the specific and limited purposes set out in Judge Cave's order.

Furthermore, section 115.031 of the Local Government Code does provide for specific purpose audits by "a disinterested, competent and expert public accountant." See also Local Gov't Code §§ 115.041 (independent audit in county without office of county auditor), 115.042 (joint special audits by counties of less than 25,000 population). Section 115.031, however, lodges the discretion to employ a specific purpose auditor squarely in the commissioners court. The district judge is not a part of this process.

Finally, it might be contended that the following constitutional provision justifies the appointment under consideration here:

    The District Court shall have appellate jurisdiction and general supervisory control over the County Commissioners Court, with such exceptions and under such regulations as may be prescribed by law.

Tex. Const. art. V, § 8.

In Attorney General Opinion JM-708 (1987), we said that a district court may exercise "general supervisory control" over the actions of a commissioners court only when a lawsuit is brought in district court seeking review of the commissioners court's actions. The opinion noted that the courts have made clear that the legislature has not established a procedure for invoking the general supervisory control of district courts over actions of commissioners courts. We conclude that the district judge was without authority to appoint a special auditor in the circumstances you describe.

You also ask whether the county is liable for charges incurred by the county auditor. Since the appointment of the auditor was void, and the commissioners court had no part in his appointment, we know of no legal basis to assess any charges against the county for services performed by the auditor.

You next ask whether the action of the district judge in obtaining physical custody of the tape recordings of the commissioners court executive session violated the Open Meetings Act, article 6252-17, V.T.C.S. Section 2A of the statute provides, in part:

    (a) In lieu of the requirements for maintaining a certified agenda as provided in Subsections (a), (b), and (c) of this section, a governmental body may make a tape recording of the proceedings which shall include an announcement made by the presiding officer at the beginning and end of the meeting indicating the date and time.

    The certified agenda or tape shall be available for in camera inspection by the judge of a district court if litigation has been initiated involving an alleged violation of this Act. The court upon entry of a final judgment may admit the certified agenda or tape in evidence in whole or in part . . . .

    (f) The governmental body shall preserve the certified agenda or tape for at least two years after the date of the meeting.

The statute contemplates that a district judge may make "in camera inspection" of the tape only if "litigation has been initiated involving an alleged violation of this Act." Under the circumstances you describe, no such litigation had been initiated at the time of the judge's order of July 2, 1990. The "governmental body" that is the subject of the tape is its proper custodian and is required to preserve it "for at least two years after the date of the meeting."

The statute further provides that:

    (h) No individual, corporation, or partnership shall, without lawful authority, knowingly make public the certified agenda or tape recording of a meeting or that portion of a meeting that was closed under authority of this Act.

Thus, it appears both that the district judge exceeded his authority in taking possession of the tape and that the county clerk acted in violation of subsection (h) in releasing it to him. We note, however, that subsection (j) could provide an affirmative defense to the county clerk.

Your final question asks whether Judge Cave should recuse himself in future litigation over these matters. Since no litigation has been initiated, we decline to speculate about what possible course it might take, and in accordance therewith, about the propriety of recusal.

                   SUMMARY

      A district judge has no authority to appoint a "special auditor" to conduct a limited inquiry; his authority is limited to the appointment of a regular county auditor under the requisite statutory provisions, chapter 84 of the Local Government Code. A district judge also lacks the authority, absent pending litigation under the Open Meetings Act, article 6252-17, V.T.C.S., to order a county clerk to turn over possession of a tape recording of an executive session of a meeting of a commissioners court.

                               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 Rick Gilpin
Assistant Attorney General

Footnote 1: Almost concurrently, two other incidents occurred: On June 18, 1990, the commissioners court entered a nunc pro tunc order ratifying its actions of the previous October and indicating, in writing, its agreement with your proposals; and under date of June 29, 1990, Mr. Larry Craddock, General Counsel for the Office of Comptroller, sent a letter to Judge Cave which indicated that after reviewing relevant documents, he was persuaded that you had not acted in any way to preclude receipt of your state salary as district attorney.

Footnote 2: This office does not review judicial orders. See Open Records Decision No. 415 (1984). In this case, however, the judge is acting in an administrative capacity. . . . , 141 S.W.2d 764 (Tex. Civ. App. 1940), rev'd, 146 S.W.2d 170 (Tex. 1941).