0423071.11
COMMISSIONERS' COURT AGENDA REQUEST

PLEASE FURNISH ONE ORIGINAL AND TEN COPIES OF THIS REQUEST AND
DOCUMENTS TO
BE REVIEWED BY THE COURT.
MADE BY: Comm. Oehler
MEETING DATE: April 23, 2007
OFFICE: _County Commissioner
TIME PREFERRED:
SUBJECT: (please be specific) Consider, discuss and take appropriate action to-
authorize independent or outside audit, in whole or in part, of affairs, activities, and/or
transactions by or with the Kerr County Treasurer's Office and / or other offices as
applicable or necessary.
EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON):
NAME OF PERSON ADDRESSING THE COURT: Comm. Oehler, Pct. 4
ESTIMATED LENGTH OF PRESENTATION:
IF PERSONNEL MATTER -NAME OF EMPLOYEE:
Time for submitting this request for Court to assure that the matter is posted in accordance with Title 5,
Chapter 551 and 552, Government Code, is as follows:
5:00 P.M. on the Tuesday prior to the meeting.
THIS REQUEST RECEIVED BY:
REQUEST RECEIVED ON:
All Agenda Requests will be screened by the County Judge's Office to determine if adequate information has
been prepared for the Court's formal consideration and action at time of Court Meetings. Your cooperation will
,,,~ be appreciated and contribute towards your request being addressed at the earliest opportunity. See Agenda
Request Rules Adopted by Commissioners' Court, Court Order No. 25722.
FROM PAT TINLEY - ATTORNEY RT LRW
PW]NE N0. 830 896 8980 Feb. 23 2007 1@: 38RM P1
OPR1fE 4e TN[ ATTOtNfiY GCNRRAG ~ STATR O. TEXAS
JOHN CO&NXN
Match 23, 1999
Mr. John Brms6a Opinion 190_ JC-0023
Fisher County AuRdioar
P. d. Banc 12S Re: Authority of a commisaionxs court to order
Roby. Texas 79343 as indepcadettt audit (RQ-2 iffi)
Dear Mr. Brtmsoa:
Yon tall ~ thatthePisharCoun2yC.c~tamiasaorx+ssCourtvotedon aRxiap~ed amdtoa t~
as indepa-dmt audit of the 1A97 fiscal yeas Yoa ask wh~>isere is any action that you, as the
county auditor, tray iake to drier the at:dis; which y~ oPP~ ~ tRODesxssary. tukusfified, cad a
waste of ratepayers' xttaney. we ocnclude that a aounry auditormay trot prevent a psoyerly ordered
independent audit absent an abuse of disuetion by the commissiotesrs coast.
A cotmni court may auihaiae tat indapmdrnN audit of the county aeaoards cad
officialsirttwoeveaenstatrooes: ~€ .. _...... _,~ ._ _ ... " `~ _
titullfbppyfdhlsstaeeVC'~spub>l:thlu'eekT~'eX.I.oC. Gpv"rGDUEAN)a. § 115.031(Vemoa 1988).
The latter cirtaurirtaucb wss" bddressad in a 1955 atnendmanl to ffia statutory predecessor of
subsoctian II5.031(i), accompanied try this emt˘gea~ay statement: "71x tatx that it is ahaost
impossible for a pommisaiotxxa Covet to aocme an indepatdmt at>dict of the ~smty records at the
present time tvlthoat casting sotue mfleoti'on om the wgnty ot~eta or the institutions ofthe county
creates en emezgeacy ... "' Befare tht addition of satbseeticm (i), s connmi~iotters court could
order an irtdepandeatt audit of tbusMy accounts and of$ciah: only whoa jntat[9gI by as imperative
pubfic necessity. See Te~c. LOC. GOVT COna ANN. § i15.tY31(a}(h) (Vernon 1988) (steps
oommussionas courtmust ratamatdarixdepoudent auditjtestifiedbyimperafivepublienecassity}.
By adding subsection ~l. the leg~slaitem ptavided another, less demmnd~8. procedure far a
comtnissionera wart to older as deiRt nadir See gen˘watty 35 Dnvtn B, 9teeaotcs. CotMty
aaID $PP.CIAL DISTRICT I,AW § 19.17 (Tctcas Pxactiae 1989) (iateiprdabion of statafes allowing
special and outside auditorsy
A county aadltm; who abates broad power over coanty finances with the eotmtrissioners
coact,has "general avetstgbt oftbebooks Read records ofacotmty, district, ar smeoŁficerauthori2cd
'Act otlNa:ch 16, t4S5, 5416 ieg., BS., eL. 50, § 2, 1955 Tex. Gen. Laws 78, 79-
FROM PRT T1NLEti' - RTTORNEV RT LAW PHONE N9. 630 896 6980 Feb. 23 2007 10:39RM P2
°°' or required by law to receive or collect money or other' property that is itrtended for the use of the
county or that belongs w the county." Tax. Loc. t:rov"r CODE ANN. § 112.006(a) (Vernon 1488).
Claims against the county may not ba paid until the auditor has examined and approved them. Id.
§ 1 l3.Ob4. The auditor must also "see ro the strict cnfotcement of the law governing county
fittances; ' id. § 112.006(b), and `yrtay not audit or approve a claim unless the claim was,iuctiured ors
provided by law;' id. § 113.065. However, sectron 115 031 provides that"~#JTipds±rhoru~Ygivem;t
_ ... .__ _,_.iv..~' _~.~.~~_v~_a~..~La... _.. W.
§ 115.031(j)
As we have notai, sttbaetxtaat ll˘O~lft) allows a .aomttvsstonets court to ordt~_an,~
,y#~cde~daiit+audtR:iflhe t:otut ijekermmea"~"Fir~ sarste.~the~ixlgc'iatereatc" You ask how
"public interest is defined iinda that subsecgon The Local Government Code dose not pmvide
a definition of the tetra. Whether an it-depetuknt audit would "best serve the public iY' is a
factual determination cotnmitte8 to the discretion of the commissioners coral. Courts broadly
construe a commissioners court's authority to order an independent audit. (n Cnterrero v. Refugio
County, 94b S.W.Zd 558, 571 (Tex. App.-Corpus Christi 1997, no writ), for example, the court
declat~t:
The county commissioners court, with the county judge as presiditL, officer,
exercises power and jurisdiction over ail county business, as prescribed 6y
state law. Tgx. Goxs'r. art. S, § 18. Maintaitting finance rocotds and
examining accounting roeords of the county are among the fimetions of the
commissioters court TeX. IACAL Gnv'T CODE ANH. §§ 112.008, 115.022
(Vernon 1988). In order to fulfill these functions, the commissioners court
""~ may authorize an independent audit of the accounts and officials if the audit
would best serve the publze interest. See Tax. Local. Gov'r Coot: Ahtt~.
§ I1S.031 (Vernon 1988). This audit can include the office of the county
auditor. Id.
In Commissioners Court ofCaldwell County v. Criminal DistricrAttorney, b90 S.W.2d 932, 934-35
(1'ex. App.-Austin 1983, writ ref d n.r.e.), the court observed: `t'he correlation of total avenue
and expenditure, and apportiotunent of the fottner among tfie various county functions, operalions,
and programs, in the overall public interest, is the essence of the decisiomnaking entrusted to the
judgment of the Commissioners Court. There could be no clearer grant of diacTetionary power."
(Hmphasis in original)
If you disagree with the commissioners court's determination that an independent audit
would `best serve the public iateresi," you tnay citallcnge that fhading in district court. The district
court has appellate jutiadiction and general supervisory control over a county commissioners court,
F~ROht PR7 TINLEY - RTTORNEY RT LRW PHONE N0. 830 896 8980 Feb. 23 2007 10:40RM F3
Mr. John Branson -Page 3 (JC-0023)
with such oxaeptions and under suah regulations as the law may prescribe TFx. CoNST. art. V, § 8
(Vernon 1993}. However,
[a] party can invalre she district court's constitutioml supervisory control
over a Commissioners Court judgment only when the Commissioners Court
seta beyond its jurisdiction or clearly abuses the discretion conferred upon the
Commissioners Cosa! bylaw.
if the Cotmnissioners Court acts illegally, unreavanably, or arbitt~arily, a
district court may so adjudge.
Commissioners Court oJ'Titus County v. Agan, 940 S. W.2d T7, 80 (Tex. 199'7) (citing Ector County
v. Stringer, g43 S.W.2d 477, 479 (Tex. 1992)) (eutphasis added). Once a twmmissioners court
exeacises its discretion, rho district count may review the order for abuse ofdisaretion, but the district
court cannot substitute its judgment and discretion for that of the com~tnissioners court. Id. While
the determination for an indep~dent audit may be reviewed by the district wort on an abuse of
disaretion standard, it wiU not be overturned solely tsecause of a difference of opinion concerrsing
its wisdom. See Beaumona Bank, NA. v. Buider, $Ob 5. W.2d 223, 226 (Tex. 1991) (siting Downer
v..4quamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. )9$~).
115.003
LOCAL GOVERNMENT CODE
§ 115.003. Examination of Funds Held by County
Treasurer
(a) At least once each quarter, or more often if the
county auditor desires, the auditor shall, without ad-
vance notice, fully examine the condition of, or shall
inspect and count, the cash held by the county trea-
surer or held in a bank in which the treasurer has
placed the cash for safekeeping.
(b) The auditor shall make sure that all balances to
the credit of the various funds are actually on hand in
cash and that none of the funds are invested in any
manner except as authorized by law.
Acts 1987, 70th Leg., ch. 149, § 1, e$'. Sept. 1, 1987.
§ 115.0035. Examination of Funds Collected by
County Entity or the District Attor-
ney
(a) For purposes of this section, "accounts" means
all public funds that are subject to the control of any
precinct, county or district official, including the ac-
counts of law enforcement agencies and the attorney
for the state composed of money and proceeds of
property seized and forfeited to those officials.
(b) At least once each county fiscal year, or more
often if the county auditor desires, the auditor shall,
without advance notice, fully examine the accounts of
all precinct, county and district officials.
(c) The auditor shall verify the correctness of the
accounts and report the findings of the examination to
the commissioners court of the county at its next term
beginning after the date the audit is completed.
(d) This section does not apply to funds received by
the attorney for the state from the comptroller of
public accounts pursuant to the General Appropria-
tions Act, or to federal or state grant-in-aid funds
received by precinct, county or district officials.
Added by Acts 1989, 71st Leg., ch. 1007, § 1, eff. Sept. 1,
1986.
§ 115.004. Audit in County With Population of
190,000 or More
(a) This section app&es only to a county with a
population of 190,000 or more.
(b) At the end of the fiscal yeaz or the accounting
period fixed by law, the county auditor shall audit,
adjust, and settle the accounts of the district attorney,
the district clerk, and each county or precinct officer.
(e) If the county auditor is unable to obtain proper
reports or an adequate accounting from any of those
persons, either during or after the person's term of
office, the auditor may require an accounting and may
proceed at the county's expense as the auditor consid-
ers necessary to protect the interest of the county~or
of the person entitled to any funds.
Acts 1987, 70th Leg., eh. 149, § 1, eff. Sept. I, 1987.
[Sections 11b.005 to 115.020 reserved for expansion]
SUBCHAPTER B. AUDIT AUTHORITY
OF COMMISSIONERS COURT
§ 115.021. Audit and Settlement of Accounts
The commissioners court of a county shall audit and
settle all accounts against the county and shall direct
the payment of those accounts.
Acts 1987, 70th Leg., ch. 149, § 1, e0 Sept. 1, 1987.
§ 115.022. Examination of Accounts and Reports;
Settlement
(a) At each regular term, the commissioners court
shall examine all accounts and reports that relate to
the county fmances and shall compare the accounts
and reports with the accompanying vouchers. The
court shall see that any errors in the accounts and
reports are corrected.
(b) The court shall see that all orders made by the
court that relate to the accounts and reports are
entered in the minutes of the court and that the
orders are noted on the accounts and reports.
Acts 1987, 70th Leg., eh. 149, § 1, eff. Sept. 1, 1987.
[Sections 115.023 to 115.030 reserved for expansion]
SUBCHAPTER C. INDEPENDENT AUDIT
AUTHORITY GENERALLY
APPLICABLE
§ 115.031. Audit by Accountant
(a) If considered by the commissioners court of a
county to be justified by an imperative public necessi-
ty, the court may employ a disinterested, competent,
and expert public accountant to audit all or part of the
books, records, or accounts of:
(1) the county;
(2) a district, county, or precinct officer, agent, or
employee, including the county auditor; ,
(3) a governmental unit of the county; or
182
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FINANCES
in..-. ~•~~	~.~ ? a hospital, farm, or other county institution
~
~ of tho~~ ~	,
. tamed at public expense.
term o.	.The commissioners court may also employ the
and mad	rant to deal with. any other matter relating to
~r consid -
~	ling the fiscal affairs of the county.
county or	-" ~. The resolution providing for the audit must
	-the reasons for the audit, such as a determina-
	by the commissioners court:
:pansion! ~.	`.tl) of official misconduct, intentional omission, or
4
	.
genre in records or reports;
TY	' C2) of a misapp&cation, conversion, or retention of
	blic funds; or
~	" (3) of a failure to keep accounts, make reports, or
	~8!r°unt for public funds by any officer, agent, or
adit anti
'	':. ployee of the district, the county, or a precinct,
ll direct	lading the officer, agent, or employee of a deposi-
	hospital, or other pub&c institution maintained
	the public benefit at the public expense.
	The reason stated in the audit resolution may
'eP°rts;	be a statement by the commissioners court that it
	ders the audit necessary for the court to deter-
s court	- and fix the proper appropriation and: expenditure
date to	:piabGc money or to determine and fix a proper tax
xounts	
The	) The commissioners court may present the audit
~ ,ar'..d	lion in writing at any regular or called session of
	commissioners court, but it shall Iie over to the
by the	regular term of the court.
s are	„ (f) The commissioners court shall pwblish the reso-
ct the	On once in a newspaper of general circulation
	hed in the county. If there is no newspaper of
	ral circulation published in the county, the mart
	'~udl lwst notice of the resolution at the courthouse
zaion)	and two other public places in the county for at
IZ,	t the 10. days preceding the date the resolution is
tg) To lie implemented, the resolution must be
~;jdopted by a majority vote of`the four county commis-
' ~`taaets and must be approved by the county judge at
of a ~°.tAat next regular term of the commissioners court.
'mot- ~`= th) A contract entered into by the commissioners
tent, ~~ «,urt for rho audit shall be made in accordance with
Fthe etawtes applicable to the making of eontratNS by the
~.nnmisaioners court. Payment under the contract
nay be made from county funds in accordance with
t, or ;)or~we statutes.
(i) In addition to the emergency powers under this
~<~tion, the commissioners court may provide for an
§ 115.033
independent audit of the accounts. and officials if the
court, by an order properly entered at any regular
term, determines that the audit would best serve the
public interest. A contract for that audit is subject to
the requirements of Subsection (h).
(j) The authority given to county auditors under
this subtitle, as well as other provisions of statutes
relating to district, county, and precinct finances and
accounts, is subordinate to the powers of the coimnis-
sioners court under this section.
Acts 1987, 70th Leg., m. 149, § 1, eff. Sept. 1, 1987.
§ 115.032. Special Audit After Voter Petition
(a) If a number of qualified voters residing in a
county equal to at least 30 percent of the voters who
voted in the county in the moat recent general guber-
natorial election file a petition for an audit with a
district judge who has jurisdiction in the county, there
shall be a special audit of all county records.
(b) On the receipt of the petition, the district judge
shall determine its validity. If the judge determines
that the petition meets the requirements of Subsection
(a), the judge shall immediately employ a person to
prepare a special audit of all county records. The
spetdal auditor must have the qualifications prescribed
by law for county auditors. The special auditor is
entitled to receive as crompensation for the services
rendered a reasonable fee faced by the tli~triet judge
and to be paid out of the general fund or officers'
salary fund of the county.
(c) After the preparation of the audit, it shall be
filed with the district judge.
Acts 1987, 70th Leg., ch. 149, § 1, eff. Sept 1, 1987. Amend-
ed by Acts 1989, 71st Leg.> ch. 584, § 103, eff: Sept. 1, 1989.
§ 115.033. Audit by Finance Committee
(a) On the request of the grand jury, at any term of
the district court the district judge may appoint a
finance committee to examine the finantaai condition
of the county. The committee must be composed of
three persons who aze citizens of the county, aze of
good moral character and intelligence, and are experi-
enced accountants.
(b) The committee shall examine all' of the books,
accounts, reports, vouchers, and orders of the commis-
sioners court relating to county fmances that have not
been examined and reported on by a previous commit-
tee.
183