Case Information
*1 Opinion No. JM-1249 has been withdrawn.
. .n>x x.t- November 29, 1990 .,rToRsml- aPNRRAL
Honorable Becky B. McPherson Opinion No. JR-1249 District Attorney Re: Supervisory authority of
Ployd County a district court over a com- 110th Judicial District Floyd County Courthoune missioners court with regard to the transfer of funds Floydada, Texas
from a county attorney to a district attorney (RQ-2068) Dear Ms. McPherson:
You have reguested our opinion about a dispute between your office and the district judge relating to your agree- ment with Floyd County to act as county attorney pro tern. For purposes of this opinion, we will discuss the law applicable to the facts as you have presented them.
In September 1969, 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 proeecution responsibilities in exchange for a monthly payment of $1750.00 plus an addition- al 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 staff salaries. The commissioners court, in executive session, adopted your proposal on October 23, 1969. Funds paid to your office by the commissioners court were placed with a Floydada bank in a segregated account in the name of We&y UcPherson, District Attorney, County Trust Account.w 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 Criminal Procedure. You note that more than 100 such orders were issued between October 1989 and July 1990.
Honorable Becky B. McPherson - Page 2 (JM-1249)
Subsequently, the Honorable David Cave, Judge of the 110th District Court, under date of June 20, 1990, issued an "order appointing a special auditor."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 LGvE, HAYS C BlDSICX 2514 026. Street, Suite 5, Lubbock, Texas 79423 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 whatsoever kind or nature are hereby Ordered to prwide 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 much 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 such duties the auditor may need access to or copieu of any documents or things and may need Writs from this Court to procure any 1. Almost concurrently, two other incidents occurred: On June 18, 1990, the commissioners court entered a nunc pro tune order ratifying its actions of the previous October and indicating, in writing, its agreement with your proposals: and under date June 29, 1990, Mr. Larry Craddock, General sent a letter to Counsel for the Office of Comptroller, 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.
P. 6654
' Aonorable De&y 0. McPherson - Page 3 (JM-1249)
document or thing then he imp Wereby EElPoWERED AND DIRECTED to employ the service8 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 mpecial 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 mupervimion. 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 record- ings the commissioners meeting held on October 23, 1990 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 amk first about the propriety of the district judge's order appointing a special auditor.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*5 financial circumstances warrant the appointment: and the district judge5 shall appoint a (2)
county auditor if: This office does not review judicial orders. m 2. Open Records Decision In this case, No. (1984). however. the iudae is actinu in an administrative caoacitv. #S &* Nat. , 141 -S.W.id - 1940), rev'd on the area , 146 764 (Tex. Civ. App. S.W.2d 170 (Tex. 1941).
. Aonorable Becky B. McPherson - Page 4 (JM-1249) the oommismionerm court find5 that a (A)
county auditor is necessary to oarry 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 judges find the reason (Cl the district
stated b the commissioners caurt to be good end muff cient.
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, make5 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 04.003 speaks of the selection ma -5 as a county auditor; section 04.004 5pecifie5 a *term office5 of two years: and section 84.006 describes the minimum gualificationm for the position in terns 'Ia (Emphasis added.) Nothing in chapter 64 or ESBQD." elsewhere gives any indication that the legislature contem- plated the appointment by a district judge of an auditing firp rather than an individual, nor that it contemplated the appointment of an auditor for the specific and limited purposes set but in Judge Cave’s order of June 28, 1990.
Furthenuorm, Section 115.031 of the Local Government Code pnen provide for specific purpose audits by ma disin- terested, competent and expert public accountant.5 See als Local Gov*t Code 95 115.041 (independent audit in count! without office of county auditor), 115.042 (joint special Section audits by counties of less than 25,000 population). 115.031, however, lodges the dimcretion'to employ a specific purpose auditor squarely in the co~issioners 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 Court, with war the County com515510ner5 much exceptions and under such regulations as may be prescribed by law.
Honorable Wecky B. WcPhermon - Page 5 (JM-1249) a*. V, i 8. Tex. Conmt.
In Attorney General Opinion JW-708 (1987), we maid that a district court Way exercise "general supervisory control5 over the actions of a co55iSSiOner6 court only when a lawsuit 15 brought in district court seeking rmview of the commissioners aourt'm actions. The opinion noted that the courts have Wade clear that the legislature has not wemtab- limhed a procedure for invoking the general supervisory control of courts wer actions of commi5sioners dimtrict courts. * Saa SOOtt V. B, 292 S.W.td 324, 328 (Tex. 1956) 8 vd V. Be Fregh CO. 506 S.W.Zd 931 (Tex. Civ. App. - -t Tyler 1974, no writ): SS~ al5Q 1 G. Braden, m
ative w 415-16 (1977). We conclude that the district judge was without authority to appoint a speaial auditor in the circummtances you describe.
You also ask whether the county is liable for charges incurred by the county auditor. Since the appointment of the auditor warn 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 commi5sioners court executive session violated the Open Xeetinas A&. article 6252-17. V.T.C.S. Section 2A of the prwides, in part: ' statuti
(a) In lieu of the requirements for main- taining a certified agenda am provided in Subsections (a), (b), and (c) of this sec- tion, a governmental body may make a tape recording 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 (4 available for in camera inspection by the judge of a district court if litigation has been initiated involving an alleged violation The court upon entry of a final this Act. judgmeningy admit the ;;rti;At;eagenda '1; or tape evidence pa* . . . .
* Honorable Becky B. McPhermon - Page 6 (JM-1249) (f) The overnmental body shall preserve
the certif ed agenda or tape for at least two yearm after the date of the meeting. contemplate5 that a district judge ;D;
E$gg'g !;A oemera in5pection~ of the tape only 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 July 2, 1990. The ngovenmental body" that is the subject of the tape is its proper custodian and is required to preserve it "for at least two year8 after the date of the meeting.*
The statute further provides that No individual, corporation, or partner- 0)
ship shall, without lawful authority, know- ingly make public the certified agenda or tape reaording of a meetfng or that po*ion 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 the tape and that the county clerk acted in violation of subsection (h) in releas- ing it to him. We note, however, #at subsection (j) could provide an affirmative defense to the county clerk.
Your final guestion asks whether Judge Cave should recuse himself in future litigation over these matters. Since no litigation ham been initiated, we decline to speculate about what possible course it might take, and in accordance therewith, about the propriety of recusal.
BUMMARX A district judge has no authority to appoint a *special auditor" to conduct a limited inguiryr his authority is limited to the appointment of a regular county auditor under the requisite ntatutory provisions, chapter 84 of the Local Government Code. district judge also lack5 the authorityA pending litigation under the Ope; absent Weetingr Act, article 6252-17, V.T.C.S., to order a county clerk to turn over possession *8 * Honorable Secky B. McPherson - Page 7 (JM-1249) 5 tape recording of an executive 5e55ion of a meeting a commi55ioner5 court.
JIM MATTOX General of Texas Attorney MARY NNIJIER First Amsimtant Attorney General
IOU x!cREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STRAKLEY
Special 'Umistant Attorney General
RBNEAHIcxs
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Asmimtant Attorney Genmral